The Closer

A Mediation Newsletter September 2010

Working with Difficult Clients
by James Rainwater

In a perfect world, we would all get along with no disputes, miscommunication, or malice. We do not live in such a world, and that is why attorneys and mediators exist. My general view on disputes is that the underlying cause is often miscommunication. However, sometimes, for a whole host of reasons, people cannot help but be difficult. This difficulty can permeate the entire life of a case. Yet, how can you moderate the impact of a perpetually challenging client?

Pre-Mediation: If you know that your client tends to act in a difficult manner with the opposing party and possibly yourself as well, you should try unearthing some of the causes for concern and address them directly. Compassion is important, but a good, strong session of reality-checking is crucial. The client needs to be aware of the possible and probable issues to be raised in mediation that will be perceived as trigger points for the client's wrath and emotional anguish. It is better to have irate clients vent to you a few days before the mediation, rather than allow their fear or rage to monopolize the conference and further damage the likelihood of settlement.

Mediation: During the mediation conference, it is paramount to keep the client focused on the real issues as much as possible. Sidetracking issues can assist in letting the client blow off steam, but they should not derail the dialogue. The mediator should be able to permit this venting while knowing when to bring the focus back to the subject at hand. This is not an easy task when one party becomes irrational, unrealistic, outraged, etc. Individual caucusing can help absorb some of this energy, but again, it must be delicately contained by the mediator and counsel. In concert, the mediator and the difficult client's attorney may be able to provide some reassurance to the client that the mediation process exists to find mutual agreement between the parties.

Post-Mediation: In general, there are three possible outcomes of the mediation. The conference can yield an agreement, a partial agreement, or an impasse. With any result, it is imperative that the client maintains a certain level of decorum. Subsequent legal issues can arise from an ornery client's continued confrontation with the opposing party. Some view an impasse to be a failure on the mediator's part. Yet, oftentimes, the majority of cases at impasse are within the "zone of agreement" as I call it, where a workable agreement is still feasible.

An upset client who can be shown a viable future after settlement may become more agreeable after an unsuccessful conference. Frequently, a few days of rumination can be enough to make such a client reconsider the last offer made at mediation and accept it. Difficult clients can be a handful, but employing patience, empathy, and applied logic can make all the difference in mediation. Being prepared to handle a difficult client is your best tactic.

Rainwater Law