The Attorney, The Client, and The Mediator

By Brian Jerome, Esq.

Many attorneys recall law school being focused primarily on developing strong advocacy and trial expertise, with less emphasis placed on developing negotiation skills. Litigators rightly pride themselves on strong defensive skills; it is this ability and willingness of an attorney to effectively try their case that creates the opportunity to reach more favorable pre-trial settlements for their clients. However, with less than 3% of cases actually going to trial, focusing on negotiation, mediation, and settlement of cases is widely beneficial.

A mediator is an expert in the complex process of negotiation and settlement of disputes. An effective mediator orchestrates a mediation like an efficient business meeting. S/he creates a dynamic, structured and respectful climate, and sees that all parties, as well as their counsel and/or their insurers, have the opportunity to express themselves as needed to generate a full understanding of all aspects of the conflict, both material and human. S/he helps the parties focus on their fundamental needs and priorities and seeks out and encourages common ground in order to arrive at a satisfactory settlement.

An experienced mediator also goes beyond simple facilitation of the process, exploring the parties’ positions, raising important questions, reality testing, and focusing the participants on potential strengths and weaknesses of their case. The mediator helps the parties identify their key interests and has the ability to cut through posturing and argumentativeness to help parties achieve resolution.

An attorney’s role in the mediation process, as advocate and advisor to their client, is to suggest when mediation is appropriate, whether before suit is filed, or during/after the discovery process. The attorney must also explain the mediation process and benefits, suggest mediator selection, and prepare their clients to take full advantage of what mediation offers. The attorney advises the client on substantive case law, anticipated opposing arguments, potential risks, a realistic valuation of the case, and a range of possible outcomes – all prior to mediation.

Confidentiality plays a vital role in mediation; it’s important that clients understand confidentiality both under the terms of the written mediation agreement in effect as well as by applicable statutes or laws, such as in Massachusetts MGL c. 233, s.23c. Clients who know that their private discussions with the mediator are confidential speak more openly about their case and personal interests, which allows the mediator to better foster a resolution that meets the needs of all involved.

Some attorneys tend to limit their client’s active engagement during the course of the mediation session. While in some cases limiting a client’s participation may be advisable, i.e. where the client has a tendency to speak in a manner damaging to them, has excessive anger, and/or otherwise would disrupt the process, counsel should expect that the mediator will seek to engage the clients in discussion to assess their views, emotions, needs, and priorities. It is important for the mediator to establish a relationship of trust, openness and impartiality with all parties directly. A lawyer should consider advising the mediator in advance of the session of any client issues, such as intense emotions or unrealistic expectations so that the mediator can tailor their approach appropriately.

Some attorneys find it challenging to communicate to their client (or their insurer) weaknesses they have in their case. It can be very powerful for such parties to hear the mediator directly point out shortcomings so they can consider a more realistic evaluation. This is why all parties must attend the mediation. Participation by telephone during the mediation is a poor second to actual attendance. In such circumstances, the mediator’s ability to speak to the party or insurer is necessarily limited, and it is left to the attorney to communicate the many ebbs and flows of an ongoing mediation process to his client, which can be difficult at best for many reasons. To take full advantage of mediator input, the attorney should have his insurance client attend the session and work with the mediator directly.

Principally, a mediation is for and about the parties. It is the client’s case and s/he ultimately decides whether to accept settlement or not at the mediation, after hearing the advice of their counsel. To many, the session is equivalent to their day in court, an opportunity at long last to express their arguments, perspectives and feelings to both the opponent and an expert, impartial mediator, who is there to listen and help promote resolution.
The relationships involved in a mediation are at the heart of resolving the matter.

To learn more about this and other ADR-related topics, visit us at http://www.mdrs.com/faqs/mdrs-articles.

This shortened article was printed in Massachusetts Lawyers Weekly (April 27, 2015).  For a full and more detailed article, please click here.

Working with today’s students, tomorrow’s lawyers

Remembering law school can invoke memories across the spectrum, from being overwhelmed to learning about all the things that first excited us about the law.  Attorney Brian Jerome regularly invites local law students to observe real-life mediations and arbitrations.  Today’s students are very well prepared by their professors, ask all the right questions, and are genuinely interested in seeing strategies put to work resolving disputes.  It’s fascinating in its own right to be reviewed by these students and see how ones developed style is interpreted through their eyes.  We appreciate all of you who have allowed mediation and arbitration observations to take place during your sessions; it is through this experience that we can help the newest generations be best prepared to represent us all in the future.

“Talking About the Law” with MDRS Founder Brian Jerome

It was a pleasure speaking with Bob Flynn yesterday on his excellent radio show, “Talking About the Law.”

If you didn’t catch it or want to pass it on, please click here for the audio.

Thanks again to Bob Flynn, and the crew at WCRN 830 AM!

-Brian Jerome

Brian Jerome on The Radio {rescheduled}

Today’s radio show has been rescheduled for August 18, 2011 at 1:00 p.m. Look for more information about Brian Jerome’s appearance on WCRN on this blog in the coming weeks.

“Talking about the Law”
WCRN AM Radio 830
Sponsored by Flynn Law Firm, PC

Brian Jerome of Massachusetts Dispute Resolution Services in Boston, MA will be a guest on “Talking about the Law” discussing “ADR: Closing a case by trial, mediation or arbitration” on Thursday, June 30th at 1:00pm on WCRN 830 AM Radio. It may also be heard via the web at wcrnradio.com as a live stream.  You may participate in the show by calling 508-438-0965 or by emailing bobflynnradio@flynnlawfirm.com, during, after or before the show.