Mediation: Seven Things You Should Discuss With Your Client Before Mediation

Readiness Checklist for Mediation

Counsel should consider discussing the matters below with their client prior to mediating a litigated matter.  Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation.   For a printer-friendly version of this article, click here.

Explain the Process of Mediation

• What Is Mediation?
• What is the Role of the Mediator?
• What is Your Role at Mediation?
• How Does Mediation Compare to Litigation?
• Why Mediate?
• Who May Attend The Mediation?
• Is Mediation Confidential?
• What Will Happen At The Mediation?
• What Is A Separate Session?
• Can You Speak With Your Attorney Privately Any Time You Want?
• How Long With Mediation Last?
• What Helps To Get The Case Settled?
• Obtain client suggestions for non-monetary solutions, such as future business or payment in kind that may be desirable
• Decide whether an apology to or from the client might be appropriate

Selecting a Mediator

• Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?
• Describe how the mediator selection process works (if specified by contract or otherwise)
• Determine whether an evaluative or facilitative mediator would be best for this case

Explain How the Status of the Dispute Influences the Mediation Process

• Has suit/arbitration been filed?
• Is trial/arbitration looming?
  • How long will trial/arbitration take to a final resolution?
  • Have there been any continuances?
  • Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?
• Are there pending dispositive motions before the court/arbitrator which create some risk?
  • How should that risk inform the client’s decision-making?
  • Discuss your honest assessment of chances of success on the pending motion
  • Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).
• Has the judge/arbitrator made any preliminary decision in the dispute?
  • Has the judge/arbitrator indicated an early assessment of either party or their case?
  • Either explicitly or implicitly?
• What is the status of discovery?
  • How much is completed?
  • Are party depositions completed?
  • Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;
  • Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;
  • What discovery needs to be completed?
  • What is the estimated cost of completing discovery?
  • Are expert witnesses needed?
  • What is the estimated cost of the expert witness through the close of discovery?
  • What is the estimated cost of the expert witness through the end of trial?
• Regarding previous settlement discussions:
  • What are the impediments to settlement presently?
  • How can the client and counsel best seek the assistance of the mediator to overcome those impediments?

The Impact of Opposing Counsel on the Case and the Mediation

• Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision
• Discuss how a mediator may assist the parties in dealing with opposing counsel
• Discuss the opposing counsel’s likely approach to the mediation

Settlement Authority at Mediation

• Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)
• Discuss the pros and cons of settlement at certain dollar ranges
• What is the likely result for the client on its best day should the matter go to trial?
• What is the likely result for the client on its worst day should the matter go to trial?
• What is the likely result for the client on an average day should the matter go to trial?

Anticipated Costs of Litigation or Arbitration

• What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)
  • The pre-trial costs
  • The cost to try the case
  • How much has the client spent to date on the litigation
• Is there a right to appeal an ultimate resolution by the court/arbitrator?
  • Whether an appeal is available only at the end of the case
  • What is the likelihood of either party to appeal should they lose at trial?
• An estimated of the cost to appeal
  • An estimated time to complete appeal
  • Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it
• Cost and Fee-shifting:
  • Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible
  • Are litigation costs are recoverable from the other side
  • The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)
• How long it may take for the court or arbitrator to resolve the case

 What Are the Chances of Success at Trial?

• What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?
• If you obtain a judgment, does the defendant have assets available for collection?
• What is the attorney’s honest assessment of the strength of the opposing case?
• The likelihood that the trial will bring adverse publicity
• Discuss the risks of an adverse judgment, including:
  • The availability of adequate liability insurance
  • The availability of adequate funds or assets to satisfy a judgment
  • Whether a judgment jeopardizes the survival of the client’s business

Jay Young is a mediator in Las Vegas, Nevada.