Have you ever been in a mediation where you believed the case could be settled on terms that would be in your client’s best interest, but your client had a mindset that made settlement impossible? When I use the term mindset, my intention is to include your client’s emotions, biases, preconceived notions, or mental preparation (or lack thereof) for mediation. My next few posts will focus on how you can help your client mentally prepare for mediation.

If you have been in a litigation practice for at least a few years, you know what to expect in mediation. You aren’t shocked when the other side’s initial proposal is lackluster. You aren’t surprised that the other side views the facts differently. You aren’t alarmed when the mediation hits an impasse. You expect the mediator to challenge your position. These normal mediation experiences can drive your client to anxiety, anger, or despair. You can help your client mentally prepare for the normal frustrations of mediation by taking a few simple steps.

Step 1: Encourage your client to presume the other participants in the mediation are acting with positive intent

What do I mean by “presume positive intent”?

I don’t mean that the other side is looking out for your client’s best interest. Clearly, they’re not.

What I mean is that most parties simply want a rational and reasonable settlement. They don’t know how to get there. As a result, they make low offers or high demands so they can leave room for more negotiation. Both parties are dealing with uncertainty, and they often fear giving up too much too early. The fog of uncertainty will slowly clear if the client sticks with the mediation process. The gap will begin to narrow. A lackluster offer or demand does not mean the other party is intending to be insulting or disrespectful.

Until the mediator tells you otherwise, it makes sense to assume the other party is working towards settlement. When in doubt, ask the mediator if he or she thinks the other party is serious about working towards settlement.

Step 2: Help Your Client Understand that Mediation Can Be Emotionally Draining

Early in the mediation process, both sides often feel a sense of disappointment. It can help to share some stories with your client (sanitized for confidentiality of course) about other mediations that started slow, or hit impasse, and then concluded with a good settlement.

Explain that there will be times when it feels like nothing is happening, but that the mediator is working hard in the other room.

Clients have seen plenty of courtroom dramas on TV or in the movies. I doubt they’ve seen a movie depiction of a mediation. Clients who have never been in a mediation probably don’t have any analogous life experiences to prepare them for the process. The process can be slow, frustrating, and draining, but it works. When clients know what to expect, they have a better ability to let the process work.

Step 3: Encourage your client to avoid anger and focus on achieving a rational and reasonable settlement

It’s normal for litigants to be angry with the other party. Clients need to minimize their anger at mediation. Anger is contagious. Anger clouds judgment. When a client knows what to expect in the mediation, they are better equipped to handle their anger related to the process or relating to the facts of the lawsuit. Encourage your client to focus on the end goal of settlement, not on the frustrations that occur during mediation. Mediation may be stressful at times, but that stress will be much worse for your client at trial.

In part 3, I’ll discuss additional mental preparation for your clients that will help pave the way to mediation success.