Tip from the Trenches -- 
Prepare your client for the difficult and emotionally draining nature of the mediation process. Let them know what to expect from the negotiation dance.
Mediation can be difficult for clients who begin the process with unrealistically high expectations; they may become easily discouraged by the other side's offers. Negotiation requires compromise. For clients who struggle with changing their perspective or expectations, each successive step means disappointment. Repeatedly compromising to reach a final resolution can be emotionally draining and challenging for a client who is not fully prepared and informed about the mediation process. As attorneys, we're masters of this unusual dance called negotiation. For clients who have little or no experience with these dance steps, negotiation can be traumatic and exhausting.
In a recent mediation, a defendant arrived with the unrealistic hopes of attaining total victory in the mediation. (He
honestly expected to achieve the equivalent of the court granting his summary judgment motion.) He struggled mightily with every compromise needed to achieve final resolution. As the hours passed and the mediation progressed, this client eventually understood -- at a very high emotional cost -- the necessity of compromise. He finally accepted that total victory is unattainable in the mediation process. To get there though, he rode a painful, and avoidable, emotional roller coaster. While he was being educated about the purpose of mediation as the process unfolded, the other side became increasingly frustrated and impatient, made accusations of bad faith and wondered why the defendant had agreed to mediate in the first place.
Had this client come into the mediation with an understanding of how negotiation works, the outcome would have been more easily attained and more gratifying for all parties. Mediation advocates should educate their clients and make the process as transparent as possible. Clients prepared
for the negotiation dance will be more satisfied with the final
resolution. During your client preparation meetings remember to walk through each step of the mediation process -- from the mediator's opening statement through the execution of the settlement agreement (or term sheet) at the end of the day. Discuss fully the goal of mediation -- closure and settlement to avoid the risks, costs and delay of litigation; the necessity of compromise; the collaborative, non-adversarial nature of the process; the roles of each participant; the disappointing opening offer; the mutual expectation of good faith participation; your negotiation strategy and the successive moves and compromises required to reach resolution.
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Recent Articles
What to do when your client's spouse interferes with settlement negotiations and may even threaten derail the entire settlement process? Jeff Krivis, mediator and Pepperdine University Law School professor, provides helpful guidance in The Elephant in the Room.
A study reported in the law and public policy journal of the American Psychological Association addresses lawyers' ability to predict case outcomes -- a key issue in most mediations. Here is a short article in the ABA Journal about the study -- ABA Journal article. For more in depth information, here is a link to the underlying study -- Insightful or Wishful?
Of course, careful and thorough preparation is vital to successful resolution in mediation. Advocates preparing for the mediation of complex employment or class litigation should consider the ten tips outlined in this article to increase your chance of success. Settlement of Complex Employment Cases
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