In Defense of Mediation Preparation, 0619 COBJ, Vol. 48, No. 6 Pg. 20

Position:Vol. 48, 6 [Page 20]

48 Colo.Law. 20

In Defense of Mediation Preparation

Vol. 48, No. 6 [Page 20]

The Colorado Lawyer

June, 2019



Proper planning for mediation benefits lawyers, clients, and the dispute outcome. This article describes how lawyers can prepare to be effective participants in a mediation.

Lawyers representing clients in mediation set themselves and their clients up for success with thoughtful preparation. Some lawyers hesitate to spend their time, and their client's money, on this type of groundwork, but the benefits of preparing for mediation, even if briefly, pay dividends when parties gather at the mediation table. Certainly, simply choosing mediation as a dispute resolution process has economic benefits, but parties and their attorneys optimize those benefits with mediation preparation.

Litigation, mediation, and other types of alternative dispute resolution (ADR) are different processes that each require a different type of preparation. This article describes basic tips that lawyers can use to prepare themselves and their clients for more fruitful mediation experiences.

Why Focus on Preparation?

Former Georgia Supreme Court Chief Justice Leah Ward Sears stated in an interview that mediation is a good tool for lawyers because it settles cases and promotes reasonable outcomes for clients.1 To achieve these ends, she added, lawyers need to go into mediation with a focus on settling the case collaboratively, rather than using an oppositional approach. Even when cases do not settle in mediation, lawyers can move forward with an understanding of where the risks in the case remain.

Preparing Clients

Many clients don't understand mediation, so attorneys should discuss with them ADR generally, and the mediation process specifically. The conversation should cover possible mediated outcomes to best manage clients' expectations and promote the best possible mediation experience. Toward that end, attorneys should include an overview of different conflict resolution approaches and the various risks and possibilities associated with each one.

Lawyers can reinforce that mediation provides the opportunity for parties to determine their own outcomes, as opposed to having a decision made for them by a judge or arbitrator. Here, it is helpful to discuss the probabilities of a good versus a bad outcome in mediation as compared with litigation or another form of dispute resolution. Describing the strengths and weaknesses of the case with clients educates them on the probabilities of different outcomes in the courtroom versus mediation. It is also a good idea to point out that if the evidence is weak or lacking, mediation can provide the opportunity for people who feel wronged to recoup a sense of justice and power, even if their optimal outcome is not achieved. Client understanding will grow with a discussion of the risks and benefits of each dispute resolution strategy.

Clients may also find value in the confidential and expedient nature of mediation. By reviewing the benefits of a confidential and efficient process, clients may better understand the...

To continue reading