I dedicate this article to His Honour Judge David Reid. In my years of appearing against him in mediations when he was at the bar, I marveled at the apparent confidence which his clients seemed to repose in him, his arguments, his concessions and his fair treatment of opposing arguments.
I address the topic under the following headings:
- The mediator (role and personality).
- The lawyer’s arguments on his or her behalf (including concessions).
- The opponent’s argument (including concessions).
- Negotiation.
Saliently, it bears remembering the client, not the lawyer, is the decision maker. That is so irrespective of the character of the litigation or the client’s prior experience with litigation. It matters not the litigation is one in which the client is plaintiff (or applicant) or defendant (or respondent). The litigation is a client’s, not the lawyer’s, to run to trial or compromise (depending, of course, on the attitude of the opponent).
All this must be respected, and patently so. To do otherwise courts trouble.
Most clients need to feel comfortable with how the litigation is being managed by his or her lawyer. Such comfort, entailing recognition of the client’s interests and (reasonable) sensitivities, extends to each aspect and stage of the litigation. This need be firmly at the forefront of the lawyer’s mind.
Mediation is a salient example of this need.
Because the mediation occurs in an informal setting, not the formal court setting, experience dictates that poor management of the client’s expectation apropos the mediation process can militate against proper outcomes.
Put another way: a client is probably more steeled to the uncertain outcome of court adjudication where a result is imposed upon them, as opposed to a mediation where they have a choice in yielding an outcome by compromise.
That choice puts pressure on a client. That need be appreciated by the lawyer. I do not suggest a client ought be unduly stroked. A lawyer is there necessarily to give objective, and sometimes unwelcome advice. But respect ought be accorded the client decision maker for the pressure he or she is under.
With those matters in mind I address the four points above seriatim.
THE MEDIATOR (ROLE AND PERSONALITY):
The usual position is that the mediator is a consensual appointee, not one foist upon the client.
To that extent, it may be hoped, the skills and personality of the mediator have been matched by the lawyer with that of the lawyer’s client.
That is not always possible, for a number of reasons. The mediator may be selected for his or skill in a particular legal sphere. On other occasions the mediator is selected because he or she is likely to heavily reality test the client, in circumstances where the lawyer considers that his or her client needs that.
To that end the retained lawyer (barrister or solicitor) ordinarily should brief the client, by way of preparation, on the following:
- The background and experience of the mediator.
- Up to a point, the personality of the mediator.
- What the mediator will not do (eg, adjudicate, take sides).
- What the mediator will do (eg, sort out the real issues, reality test in private session).
Some clients are resentful if the mediator’s knowledge of the brief and the law on the issues is not encyclopedic. Clients need to be told that that is not the mediator’s role, but rather the task for him or her is to form an overview of the matter and assist (if not guide) the parties to arrive at what might be an acceptable compromise.
The client ought be made alive to the fact that the competent mediator ordinarily will “reality test” the client and the lawyer. Some clients think this evidences partiality. Assure them it is part of the process and will be undertaken apropos the opponent too.
There is one important feature of mediation which needs to be well communicated to a client about the role of a mediator, namely the passage of confidential discussions with the mediator.
Many clients (including sophisticated consumers of legal services such as insurers) have real difficulty with the notion that they can share confidential views apropos issues and outcomes with the mediator, who in turn will be engaging in like confidential discussions with the opponent. This is so even though experience dictates this is relatively easy for the experienced mediator.
To this end, the lawyer championing the integrity and experience of the mediator cannot be underdone. Moreover, clients ought be told that confidential discussion with the mediator enhances the prospect of an apt outcome.
Mediators, as well, should appreciate their role in this regard. Intake meetings (prior to the mediation date) are the exception, not the norm.
I think it important for mediators to send out a single page information sheet to the lawyer, with an instruction that it must be passed on to the client, detailing the mode in which the mediation is to be conducted.
Once such a mode is communicated (whether in writing or orally at the commencement of a mediation) the mediator ought keep religiously to the same.
For example, in a number of mediations I have confronted difficulty where my mode sheet noted that I would bring the parties back together at the end to summarise. I did not do this because the parties were at loggerheads (or worse).
In one instance years ago a party subsequently rang me and complained that his side did not have an opportunity to come back and put their final position in summary as my mode sheet dictates, and in the opinion of the client that precluded the achievement of resolution. That client was being unreasonable but I was the author of the cause for complaint.
THE LAWYER’S ARGUMENTS ON THE CLIENT’S BEHALF (INCLUDING CONCESSIONS):
Ordinarily written outlines will be exchanged. While it is not always possible to do so, I think it wise to run the outline by the client (certainly, in the case of a barrister, it should be passed by the instructing solicitor) before delivery.
Clients will probably not wish to alter the same but remember it is their case, so they want to know what is handed over before that occurs.
If no written outline is delivered, the arguments to be delivered orally ought be checked through in like fashion.
If no prior written advice on prospects has been afforded the client, significant difficulties can be confronted with the arguments made (and received — see below) at mediation.
Importantly the client needs to know the metes and bounds of the case (on both sides) and also that ethical rules dictate that only matters which are truly arguable can be advanced. Also it need be communicated that poor arguments advanced will only serve to pollute, and give the appearance of weakness in the client’s case.
The client needs to be inculcated with the reality that brains will trump bullsh*t in (almost) every case!
Clients need be told that they, or a witness who attends (eg, expert, employee, spouse) may be invited to participate in the exchange at the mediation. That is, an invitation may be made by the retained lawyers to have the client or witness speak briefly to a factual question in issue. Their consent need be garnered.
The client must be made alive to the fact that they, or the witness, will need to give evidence on that issue at trial in any event, and that to utilise the witness in this way may impress the opponent. They ought be reassured, however, that they will not be cross-examined. Nor should this be permitted.
A proper concession made in argument can be a powerful weapon at mediation (and trial). If there are six issues, and you concede (for mediation only) that three of them favour the opponent, the opposing lawyer and client is likely to attend carefully to the three remaining arguments that you contend (and say why) are sound.
Clients, again, even sophisticated users of legal services (eg insurers, large corporations), often have little time for such concessions. They think it reflects weakness, and a lack of conviction or stomach on the part of their lawyer. Of course, nothing could be further from the truth. Their views, however, need be canvassed and respected.
Prepare the client for concessions. Inform him or her why they ought be made. Obtain their permission to make each concession. Explain, in the above context, the strength of doing so.
THE OPPONENT’S ARGUMENT (INCLUDING CONCESSIONS):
Often clients turn their mind (and sometimes their face) against the content of the opponent’s written outline and oral argument respectively.
The truth of the matter is that upon these two sources they ought concentrate more than on their own side’s argument. The latter they will better understand, and have thought through. But not the former.
I always exhort my client to listen carefully to, and take relevant notes of the opponent’s argument. I tell them there are two principal reasons why that is important.
First, there may be some factual mistake in the argument which the client, or a witness present, can identify during the mediation, and to salient effect. Second, by listening to the opponent’s argument they will better understand the strength or weakness of their own arguments, and the contrasting positions which will obtain at a court hearing.
There are two sides to every story. A client who does not appreciate that ordinarily is not ready to compromise, or even participate in a mediation.
I often invite the client to intellectually change sides. I request they put themselves in the position of their opponent, and look at the case from their perspective. That way, I tell them, they will better understand the arguments and be in a position to weigh up the risks in the litigation. Their decision making, thereby, will be enhanced.
In the case of concessions made by the opponent, the client ought be advised that, by parity of reasoning with their own lawyer’s concessions, they are a proper and skillful method of negotiation and ought be seen as such, not as a sign of weakness.
NEGOTIATION:
Desired compromise outcomes, but not such that they become immutable, ought be canvassed with the client prior to the mediation.
The client who tells you in a pre-mediation conference that “I will not settle for more/less than X dollars” is a source of trouble for themselves and you as their lawyer. Usually, by that early point in time, they do not have the benefit of your or the opponent’s written outline and oral presentation. Ego may impede retreat.
Certainly discuss possible outcomes, and all the risks involved in the litigation, but encourage the client to listen to all the arguments, and the mediator’s comments, before even approaching grounding a final view as to bottom or top line.
Some clients find negotiation to be demeaning. For others it is an essential process they need to go through without truncation.
It is essential to tell the client that, as a lawyer, you acknowledge fully that it is his or her litigation to deal with, but that he or she must bear the outcome of an adjudication, good or bad, if that is required.
It is imperative that the lawyer tell the client that it is the client’s choice whether or not they wish to compromise or go to trial, but if they compromise then there is no point in complaining in two days, two months or two years time that the lawyer “pushed them” into an outcome. Clients will often think or say that, with a settlement tucked in their belt, but they need to be put in a position whereby later the “blame game” is not seriously open to them to engage in.
The mediator should be used heavily during the negotiation process. The mediator, on many occasions, should be asked in front of the client what his or her impression is of the likely outcome on a particular issue, and (close to the end) the ultimate result.
Clients should be encouraged to avoid histrionics and brinkmanship (eg walkouts; “this is my absolute final offer”). They ought be told that abuse or derision is anathema to compromise (at or after mediation).
Clients should always be encouraged to advise the lawyer early of any issue not the subject of the litigation which may play a role in an outcome (eg, return of other property; clarification of some fact of a prior relationship; apology).
Written terms of compromise or release should always be addressed and drafted before the mediation is attended. Many “oral” compromises fail because the drafting is too hard late in the day.
Importantly barristers ought to check that solicitors have fully informed clients of the likely length of trial and cost estimates (whether or not successful).
The likely length of trial should be addressed in open session at the cusp of the mediation.
CONCLUSION:
A client ought be prepared for mediation.
Patent respect for the client’s case and sensitivities, within reason, is also essential. Compromise will be harder than trial for many clients.
The proposed arguments ought be run past the client in advance of mediation. Prior advice on prospects assists this process.
The lawyer must ensure that the client is fully abreast of the issues in litigation, the cost and likely length of the litigation, and the opportunities for compromise that exist and which may be availed of.
The client ought not be mistaken or distracted by the role of a mediator.
The basis for arguments being put, and the role of proper concessions should be clearly explained to the client.
The opponent’s arguments ought be the subject of (encouraged) careful consideration by the client.
Negotiation should be seen as par for the course.
Richard Douglas SC
