What should a lawyer do on discovering that the terrific case just taken on is a dog and his overly emotional client cannot see it that way. He thinks it is the attorney that is faltering, not the case, and wants to continue fighting.
This course of action has a lot of downsides. For instance, the costs associated with continuing the fight generally will be borne by the attorney.
How do you get the client under control and the case settled?
Mediation. A reality-testing walk down the path of a risk-based facilitation is the key to getting this problem under control.
Risk-based facilitative mediation is a tool that inserts a business judgment "reality check" into the emotional experience of settling a difficult case. Risk-based facilitative mediation analyzes four factors:
- Adverse verdict potential. This examines the likely outcome if the trier of fact believes 100 percent of the other side's case.
- Compromise verdict potential. This calculates the range of loss if the trier of fact accepts part and rejects part of each side's case.
- Costs. How much will it cost to go from the day of the mediation until the conclusion of the trial? This includes all real dollar costs such as changes in the attorney fee structure, loss of interest, expert fees, etc. The facilitator also will analyze the negative effect the litigation will have on the party's life.
- Present settlement value. The ranges will flow from the facilitation process and should be done so that the client will not feel forced into compromise. He or she hopefully will embrace compromise because the analysis is neutral and honest.
When working with the emotional client, it is important to select the mediator with care. A purely evaluative process that focuses only on money often will isolate the client and exacerbate the tension. A purely facilitative process where the mediator expresses few opinions and takes few positions, however, will not provide the control necessary to manage the emotions.
Thus, skilled counsel will work to find a mediator who has a high track record for success and the ability to move seamlessly between the two techniques.
To get the process started, participate in a conference call with opposing counsel and mediator either before setting the case or shortly thereafter. Discuss the time estimates, accommodation needs, unique hostilities or emotions and identify the parties to be present. Also, make sure that the decision makers on the other side will be present.
Other considerations include the following:
- Ex parte communications. Mediation is not arbitration. Ex parte communications, especially those pertaining to unusual issues, are encouraged. It is important, however, to disclose the communication to the other parties.
- Time requirements. Determine the amount of time necessary for a full airing of views. Reserve enough time to permit the clients to fully vent their viewpoints.
- Exchange briefs. A well-written, informative and nonargumentative brief communicates sensitivity and preparation to the other side. It shows that the attorney is committed to the client and the case. If there is secret information, however, submit an unattached supplement that will go only to the mediator.
- Open caucus presentations. These are counsel's chance to ensure that the decision maker on the other side hears your client's position, and vice versa. Provide a verbal overview of the case from your point of view. This should not be an adversarial treatise but rather a conservative review of the case as you see it, including an analysis of the challenges that you must overcome and how you plan to do this. Do not skirt this element of the process. It is important that your client hear you acknowledge the difficult issues and for the other side's decision maker to know that you have considered them.
- Prepare your client to talk. The client will either talk privately to the mediator or will participate in an open caucus depending on the nature of the case client and issues. Prepare the client in advance. Nothing is more harmful to case then permitting the other side to view your out-of-control client. Nothing more helpful, however, than permitting the other side to view and hear from a sincere client describing the incident or articulating the manner in which the incident has affected him or her.
Provide your client with an outline of what to expect so that there are no surprises. And it helps to enhance the mediator's reputation to ensure that the client understands that the mediator is neutral and that you respect his or her opinions.
In short, risk-based facilitative mediation provides a reality test and a business focus analysis that often rapidly moves clients away from looking at their cases from an overly emotional perspective.
Mediators who can combine the business focus with sensitivity and good listening skills can move the case toward settlement by ensuring that the client has been part of the process, has been given an opportunity to vent and has participated in the decision-making process.
Alexander S. Polsky, Esq. is a principal at JAMS, a mediator, an arbitrator and an adjunct professor of law at University of Southern California. He can be reached at apolsky@jamsadr.com.
Reprinted with Permission. Copyright 2002 Daily Journal Corporation.