The Closer

A Mediation Newsletter January 2014

In the Driver's Seat
by James Rainwater

Convincing a client to participate wholeheartedly in mediation is not always the easiest task for an attorney. Although mediation is a commonplace, workaday event in the legal world, for most laypersons, it is a strange and at times confusing concept. Parties who file suit likely have preconceived notions of what should happen and what justice may be. Alternative dispute resolution is probably not at the forefront of their thoughts and expectations.

Yet, as we know, mediation is not some abstract process. It is something in which nearly every attorney will engage at some point or another. Though I have met attorneys who do not favorably embrace mediation, by and large, most practitioners see it as a truly great tool to alleviate their caseloads and more quickly contribute to the satisfaction of their clientele.

It is this quality that I suggest mediating attorneys adopt and share with clients. If the attorney is interested and/or excited about attending the mediation conference, more than likely the party will be equally receptive to mediating and hopefully resolving the matter. As the typical client will take the advice of counsel, seeing the attorney as open and cooperative with the mediation process may extend to the client as well.

The key to convincing a party to engage mediation fully is to convey the fact that this client is "in the driver's seat" and has a rare opportunity to help direct the course of the matter. At no other point in the entire legal process will the parties have such palpable influence and control of the lawsuit. Clients need to know this fact, and carefully explaining that prior to the conference is very helpful.

To be sure, the mediator will formally espouse the idea of self-direction. However, priming the parties beforehand and continuing this sentiment during the conference can only add to the potential for success. What brought the parties to this juncture diminished their perception of control and added to their sense of vulnerability. Assuring the clients that they are controlling the outcome will foster a more interactive mediation and boost the likelihood of resolution.

Rainwater Law