During a recent mediation, defense counsel confided that she was having a difficult time keeping her client fully engaged in the mediation that brought everyone together. Apparently, the client expected things to move much more quickly than they had been during our morning session. I asked the attorney if I could speak with her client about their frustration, hopeful that I could convince them to reengage with the process and appreciate that time takes time. She agreed.
Walking into the room, the first thing I saw was the insurance carrier adjuster typing away on his cell phone. It took a moment for him to turn his eyes in my direction. “Eric, what are we doing here? I’ve been sitting here all morning. I put out a reasonable offer, increased it once and I’m not seeing any movement from the plaintiff. I think this is a waste of everyone’s time.”
I responded by telling him I thought his feelings were reasonable and that it is very frustrating when we can’t keep someone else moving at our pace. But I reminded him that it is a process and people process on their own timeline. If we challenge their timeline, it just becomes another fight, and one that we have little hope of winning. We scheduled the mediation for all day and that may be what it takes before the plaintiff is prepared to make offers in a range that suggests resolution is likely to occur.
I love the phrase “time takes time.” It reminds me that I am not empowered to speed it up or slow it down. And in the context of mediation, it is especially important to remember that a party’s expectations may be directly tied to the amount of time set aside to mediate. If the case discussed above had been scheduled for a half day mediation, the opposing party would have known from the beginning that time was compressed and therefore decisions were compressed. It may have been the unspoken strategy of the opposing party to stretch out time as much as possible in hopes that more money might flow towards the end of the day when one party is feeling tired and less inclined to move forward toward trial.
Luckily, I was able to get the insurance adjuster to reengage and accept that the day would play out as scheduled. Not surprisingly, as the afternoon waned and the parties continued to make incremental movements, not particularly close to one another, there was a shift. Plaintiff’s counsel began talking about how to bridge the divide. I was asked by plaintiff’s counsel what I thought the defense would agree to pay. I was asked by defense counsel whether I thought the case could settle. Since I didn’t know either side’s bottom line, I could not see the future. But I did have a sense that movement from both sides was afoot and hope was in the air. It helps, of course, that I am naturally an optimistic person. And lo and behold, with fifteen minutes to spare, the case resolved. Both sides indicating that they gave in for more than they had intended, but both relieved to settle and call it a day.
How do you motivate your client to participate in mediation?
In the world of law, one of the most critical skills an attorney can develop is the ability to effectively convince a client to engage in mediation. This is especially true for an unsophisticated client who may have no prior litigation experience. In that case, the decision for a client to proceed with mediation can be daunting. To help them see the benefits of mediation requires a thoughtful approach that combines legal expertise, persuasive communication, and emotional intelligence. In this article, we will explore various strategies attorneys can use to effectively convince clients to engage in mediation.
Understanding the Client’s Concerns
The first step in convincing any client is to understand their unique concerns and motivations. Every client approaches legal issues with different backgrounds, fears, and expectations. An effective attorney listens carefully to their client, not only to understand the specifics of the case but also to grasp what the client hopes to achieve and what they fear. By addressing these concerns directly, attorneys establish trust and show that they are empathetically aligned with their client’s interests.
Clear Communication of Benefits and Risks
One of the most effective ways to persuade a client is through clear communication of both the benefits and risks involved if they decide not to mediate. Clients should be made aware of what they stand to gain and what potential outcomes could occur. This involves explaining the legal processes in layman’s terms, highlighting previous similar cases and outcomes, and providing an honest assessment of the chances of success at mediation. By laying out a realistic picture, clients can make informed decisions based on a clear understanding of potential scenarios.
Demonstrating Expertise and Experience
Clients look for confidence in their legal representatives. An attorney must convincingly demonstrate their expertise and experience in handling cases similar to the client’s. This can be done through sharing success stories, presenting notable past cases, or simply explaining the attorney’s background and qualifications. Expertise instills confidence in the client, reassuring them that they are in capable hands.
It is also helpful to explain to the client the mediator’s background and expertise. It is a huge waste of precious time at the mediation if substantial time is spent convincing a client that the mediator has the experience necessary to resolve their case. Attorneys should only select mediators who have years of experience with litigation and some understanding of the law of the particular case.
Convincing a client to engage in mediation is a multifaceted task that requires a blend of empathy, expertise, and effective communication. By understanding the client’s concerns, clearly communicating the benefits and risks, demonstrating legal expertise, and offering a tailored strategy, attorneys can guide clients toward making decisions that best serve their interests. Building trust through transparency and using persuasive techniques further solidify the attorney-client relationship. Ultimately, by fostering an environment of trust and support, attorneys can not only convince clients to engage fully in mediation but also empower them to embrace the legal journey with confidence.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at egillett@pregodonnell.com or eric@gillettmediation.com. Mediations are available both in person and via Zoom.
