How Mediators Can Help you with a Difficult Client
By: Donald G. Korman
Florida Supreme Court Certified Circuit Civil Mediator
Clients sometimes come to mediation with unreasonable expectations. They question their attorney’s valuation of their claim, either assuming the attorney is anxious to settle rather than try the case or having fallen so in love with their own case they don’t see its weaknesses. Obviously, this can make it difficult to resolve their case.
Mediation is an enhanced negotiation. The enhancement being the presence and participation of the mediator, a neutral third party. The mediator’s goal is to assist the parties in reaching a settlement.
At the outset of mediation, when all the participants have gathered, the mediator explains that they are neutral and has no vested interest in the outcome. We remind the parties that whatever is said or shown at mediation is confidential and that they need not be concerned that they will be confronted with it in discovery or at trial if the mediation does not resolve their case.
As mediators, we understand that we must never embarrass a litigant or their counsel, and we must make it clear that we are not acting as a judge, jury, or lawyer and that the decision to settle or not is theirs alone. But we also advise the parties that we will be picking at their case, asking questions to help the parties recognize the possible weaknesses in their case and the risks and benefits of settling versus going to trial.
Because we are neutral and have nothing to gain from the outcome and because we are asking questions of all parties, the litigants often respond to our inquiries and show a willingness to compromise, leading to a settlement.