RUSSELL CARPARELLI, J.
Clients retain lawyers to help them resolve disputes, which usually involves fling or defending a lawsuit. But the vast majority of lawsuits are not resolved by the decisions of jurors or judges; they are resolved by the decisions of parties as the result of negotiations or mediations. If you’ve ever had a reasonable settlement within reach only to have the client reject it, consider for a minute the extent to which you prepared the client for mediation and how, in hindsight, you might have done a better job.
This article offers guidance from a mediator about how to prepare clients to make settlement decisions in the course of mediation. To the extent that the guidance is familiar, the article offers a structured approach that will enable you to use that guidance more often.
Begin at the End
There is merit to beginning most tasks by identifying the outcome you want to achieve. Thus, in pre-trial litigation, lawyers should begin by identifying the elements of the most viable claims and developing a plan to prove those elements. Because the majority of cases settle, it is also important to identify your clients’ goals at the onset of representation, and then revisit them as the case develops.
Although the litigation process develops information and tactics you can use to persuade an opposing party (and perhaps clients) to settle, mediation requires clients to shift their perspective from having a neutral decide their rights and obligations to making their own decisions about whether proposed settlement terms are preferable to a trial. Therefore, you should begin preparing clients to make settlement decisions the first time you meet them and continue that preparation as the case develops.
Begin at the Beginning
The first time you meet, you will, of course, talk with the client about the facts and circumstances that give rise to the dispute. When you do so, listen for clues about the client’s feelings and values. Research shows that emotions and risk tolerance significantly influence reasoning and decision making.1
When clients say “it’s a matter of principle,” or suggest that the other party lacks integrity or acted out of malice, they are giving clues about the emotions that will influence their settlement decisions. To prepare clients to make good settlement decisions, those emotions must be heard and heeded.
Engage Clients’ Emotions
When mediation results in impasse, parties’ emotions are often a key obstacle. It’s important to engage clients’ emotions rather than avoid them. What do you remember about the law school class that taught you how to do that? Right, there was no such class.
There are many ways to engage clients’ emotions. Many lawyers assure clients that their emotions are well founded, that the lawyer identifies with them, and that the lawyer will vindicate those emotions...