Perhaps the most critical, yet most overlooked, piece of preparing for the mediation is preparing your client for the employment mediation session. In most cases, even representatives of corporate defendants have never gone through something like this, and individual employees rarely have. Take the necessary time to be certain that the client understands the purpose of the mediation, the client’s role and the mediator’s role. The client will be expected to fully participate in the mediation, and will probably be asked to explain or describe the facts related to the matter. Ensure that the client understands the necessity of “horse-trading” that will inevitably occur.
Explain to the client that although part of an adversarial situation, the mediation process itself should not be an adversarial proceeding. Bullying or use of intimidation tactics is not helpful in this forum. There is nothing to be gained in this process by trying to crush the opposition. The mediator won’t like it, and it will only serve to make the opposing parties defensive. Rather, much more can be gained through the use of essential skills of conciliation, reason, and persuasion. If the case does not settle, there will be plenty of time in litigation to show toughness and use tactics intended to intimidate.
Carefully explain to your client the legal and factual weaknesses, as well as strengths, of your case. It will make it much easier for the client to hear what the mediator has to say if he or she has already heard it from the attorney. Do not overstate the chances of winning at trial. Explain the realistic calculation of damages if the plaintiff wins. Discuss with your client the vulnerabilities of any expert report, and how the jury often views such reports.
Talk with your client about terms of the settlement document that are likely to be discussed during the mediation, including provisions such as confidentiality, tax consequences, non-disparagement clauses, and release language. Defense counsel should avoid the assumption that these types of terms are “standard”. Some terms may be acceptable to the plaintiff ultimately, but counsel should not assume that they are without discussion.
Never minimize the emotional experience that your client will go through during a mediation, regardless of which side you represent. Recognize, too, the adage that a successful mediation is often one in which both parties are left feeling a little unsatisfied. Prepare yourself and your client for this predictable reaction by emphasizing the “spirit of compromise”, and the elimination of risk that settlement brings.
