Managing a client’s expectations is one of the most important tasks an attorney faces going into a mediation. This process should begin early and continue as new information relevant to liability and the plaintiff’s potential damages come clearer into focus.
On the plaintiff side this means giving your client an assessment of your thoughts on a reasonable settlement range upon intake, understanding their thoughts about this early on, and then having continuous discussions about this as discovery commences or documents are informally exchanged. Sometimes clients may have an unrealistic view of their chances of prevailing based on input they receive from friends or family or research they perform online that may not be applicable to their case or to the jurisdiction in which the case is pending. Other times, the pain associated with the actions taken by the employer leads the client to expect an amount of monetary recovery that may be outside of a reasonable settlement range.
Having an open and ongoing dialogue with your client well in advance of the mediation about reasonable settlement value will go a long way to making the day of mediation go more smoothly. If you find that your client has a higher expectation of the value of their case than you, helpful topics to discuss include the dangers, costs and uncertainty of jury trials or the challenges associated with arbitration, the significance of the obligation that a plaintiff attempt to mitigate their losses, which can be especially important where the client has an in demand job and/or found a comparable job quickly, and document or witness corroboration issues, to name a few. Keeping your client regularly updated throughout the pendency of a case, sharing your work product with them, and involving them in the process of preparing the mediation brief will also go a long way in establishing rapport and credibility with your client so that they come to trust your opinion regarding settlement value.
On the defense side, one of the most common ways employers have unrealistic expectations is if the client representative fails to take the time necessary in advance of the mediation to properly analyze all of the relevant evidence and instead assumes based on a more bird’s eye view of the case that the company met all of its legal expectations. It is critical to adequately prepare your client by giving them time to consider all of the material facts in a case. Putting together a written chronology that contains the relevant known events and communications with supporting documents that your client can review and discuss with you in advance of the mediation will help you get on the same page in terms of potential vulnerabilities that will need to be taken into account when determining settlement authority (especially when the employer representative is not the principal of a smaller company and does not have flexibility with significantly increasing settlement authority at the mediation). With so much else often in disagreement, it is vital for the parties to bridge some of the gap between them by at least having the same understanding regarding the relevant undisputed facts generally established through documents that should be exchanged in advance of the mediation.
If either side’s legal counsel understands that they are coming into a mediation not in agreement with their client regarding settlement value, let the mediator know in advance, including through a pre-mediation phone call so that the mediator can help you address this. This may require taking sufficient time to discuss and validate the emotional issues that are creating an obstacle to resolving a case while also recentering the discussion to how a resolution could offer a better option than the uncertainties and difficulties of the litigation process. It may also require the mediator to have frank discussions regarding proof issues and an explanation of the applicable legal standards that may be pose more of a challenge to meet than what the client came into the mediation believing.
With preparation well in advance of the mediation and by keeping your client involved throughout the process it will be easier to manage your client’s expectations and therefore significantly increase the chances that the case will reach a resolution. For additional suggestions on preparing for a mediation, please click here:
Polina Bernstein has over 20 years of experience as an employment attorney representing both employers and employees and as a mediator who loves resolving disputes. If you are looking for a tenacious, experienced and compassionate employment law mediator, please visit: www.bernsteinmediation.com and email [email protected] to find out about scheduling a mediation.