How Attorneys Can Make The Most Of Mediation For Their Clients

Mediation day is a very important day for clients (and attorneys too!).  Commercial + insurance mediator and arbitrator, Jean Lawler, discusses her three tips for how attorneys can approach mediation to help their clients accomplish their goals.  Episode highlights include:

•What to focus on in mediation
•How mediation can be used to build relationships
•Why pre-mediation conference calls with the mediator are critical in order to have a productive mediation day.

To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com

To read the full episode transcript, please see the Podcast Website. 

Transcript

[intro music]

JEAN LAWLER:

Welcome to the ROADS TO Resolution ~Closure and ~Certainty Podcast. I’m Jean Lawler, I’m your host of the podcast. As a mediator I am honored to be invited into other people's lives for a few hours, like all of our lives, lives that are shaped by the many roads that have brought us to our today, roads leading to the unexpected, and to roads holding the promise of tomorrow. When I first became a mediator, I was talking to a plaintiff lawyer who told me, in a, in a reaction that just had so much, um, reverence almost in his voice that mediation day is a very important day, and he was speaking in terms of his client and how important it was for his client. Um, and that has stayed with me forever.  

So today I'd like to talk a little bit about how attorneys can make mediation count for their clients. And I've got three basic topics here, one would be … or points: one is focus on the desired outcome,  two, using mediation to build relationships, and three, pre-mediation preparation. And then, at the end of the day your client and you will be saying hopefully, that yes, what you came there to accomplish, or um, hoped to accomplish, either was accomplished or you're on the road to do that.

So looking first at the focusing on the desired outcome. There are many reasons why people, lawyers, clients, uh, matters, go to mediation. They may be court ordered. They may be there voluntarily. Even though they are court-ordered, they may be there wanting to settle, they may be there not wanting to settle, uh, but the judge is requiring them to go to court. They may not even have a lawsuit yet, they may be there because they have a dispute and they don't want it to keep going and to consume their lives. Maybe there's an arbitration agreement that requires a mediation before they could arbitrate. Whatever it might be, you and your clients are there that day, at that time and place with the hope for the promise of the tomorrow being that the dispute can be resolved, and that you could resolve it today, or at least start sowing the seeds and tilling that soil then down the road to resolve the matter in a few days, in a week, or eventually. 

Most lawsuits do not go to trial, so the earlier that you can become involved in mediation the sooner that you can, um, stop the cost for your client and uh, or at least get direction on which, which way you will go and what needs to be done to have a successful mediation. The desired outcome usually will be to mediate, uh to resolve the case, but it isn’t always. Maybe there's a legal issue involved and one party wants to make law, wants it to go up to the Appellate Court, maybe there’re, um, there’re just principles involved, you know, that someone wants to have a win. Well they can have a win with the, uh, help of their lawyers, uh, by resolving it. 

Using mediation to build relationships, that one I think is so important. Often times the parties won't have known each other, maybe a car crash that, you know, they met for the first time on the side of the road, but, uh, so often with commercial and insurance litigation there are relationships and certainly with family mediations, but that's not what I am really focusing on. Um, but businesses, business relationships, those are developed over time and it's a shame to have them disintegrate over a dispute that could be resolved. I had a matter that I mediated recently and the case did settle that day of the mediation with the two CEOs ending up going to dinner together, with one of the CEOs having said as part of the terms of a settlement that uhh, if uhh, you know if they resolved it, that he would take the other one to dinner on his dime. And so um, they agreed to settle and the invitee chose a very nice restaurant, and  presumably, well they picked a date right then and there while we were still at the mediation, and presumably they had that dinner. And if they had been in person and not on Zoom, they would have been probably shaking hands and clapping each other, patting each other on the back or something as they walked out. They had a resolution of their business dispute and they still maintain their relationship.  

The same can be true for neighbors, families, worker employment issues, things like that. It's very important to maintain relationships if it's possible, but if it's not then at least handle, it's important to have the mediation handled in a way that shows respect, so that the your client and the other party leave feeling like they were heard and that they are respected.

And then ultimately I think a way that attorneys can make mediation count for their clients is through proper preparation. And I use the word “proper” loosely because there is no such thing as one proper way to prepare. But let's just say pre-mediation preparation, on, based on however the matter is situated and whatever is required for the matter. Every matter is unique, the parties are unique, the lawyers and their styles are unique. The mediators and their styles are unique, the law, um, whatever it might be, um, it all plays into effect there. But, I highly recommend pre-mediation conference calls with the mediator.  

When I was practicing law, and that was not so long ago, but, um, we didn't do the pre-mediation calls. It was a federal court, um uh, when I went on the US District Court panel for Los Angeles, um, Central District of, uh, California, they require these pre-mediation calls. I adopted them, and I adopted them wholeheartedly and use them in every case. And in fact, I just returned from a conference, a legal conference, and it seems like most of the lawyers there do pre-mediation calls, so it must be something that has taken off around the country, and I highly recommend it.  

They’re so helpful because they can help the lawyers focus on the issues, and focus on documents, focus on, um uh,  the evidence that might be there, and focus on the desired outcome. So many times I've gone into, uh, these calls and people have different understandings of what the facts are even, they're on different, different planets, maybe you might say. And it is so helpful to spend that pre mediation preparation time actually preparing, and maybe exchanging documents, but at least, at the very least, clarifying facts, because then you can go into a mediation prepared to talk about things on the same page and, um, take it from there.  

So hopefully, with those tips uh, you'll have at least one takeaway that you might remember. And certainly I remember how that lawyer said to me, you know, mediation day is a very important day for his client. And, um, and that's what all of us who are there to serve the parties to litigation or to disputes are there for, to make sure that they have their day, and are able to walk away at the end of the day feeling better about things or at least having a plan of action for the road on which they should go down and what’s next. So, thank you for joining me. Again, I'm Jean Lawler, Lawler ADR, and you can find me online, on LinkedIn, um, Roads to Resolution Podcast, and on YouTube. So thank you so much and take care. Bye.

[outro music]