It’s an attorney’s job, as best as possible, to help the client reach his/her goals. The attorney has to come up with a game plan to reach those goals and, with the client’s approval, put the plan into action. Mediation should be part of any plan, because it can save the client money, time, energy, effort and emotion compared to litigation.
For an attorney, determining those goals, and reasons for them, is a critical step in the process. If the issue is money, why that amount? What are the client’s needs and wants? Is the goal realistic? Is the case worth more than what the client thinks?
In a family law dispute, goals and emotions can get knotted together. Does the divorcing spouse want a lot of alimony because it’s truly justified? Should the other spouse be denied child custody because he/she truly is not a fit parent, or because the spouse had an affair?
In a business dispute, are the demands driven by facts and figures that are objectively true, or are the demands driven by greed or anger towards the other party?
If you’re not lucky enough to have the mediation process quickly and easily reach resolution, the parties should think deeply about their goals and the reasons for them. It’s up to the attorney to guide the client through the mediation process by trying to clear away the emotions (though honoring and acknowledging their validity) because that’s not what the legal system is about. Who feels the most pain or anger is not necessarily the winner. Though advocating for your client is part of your job, the client must also be bathed in the cold, fresh water of reality behind closed doors. Cases need to be built up to be litigated and torn down to settle them.
One of the great strengths of mediation, especially when emotions are drained out of the case, is the ability of the parties, their attorneys and the mediator, to come up with creative solutions that allow the parties to (at least partially) reach their goals. During truly effective mediation, the parties might even take off their armor and become creative problem solvers themselves. They may no longer see each other as enemies to be battled in court, but fellow human beings with wants and legitimate needs that deserve respect.
However, this cannot happen when the party is not involved in the process. Many attorneys do not want the client involved in the decision making process. The problem with that is the client then is not invested in the process either and can easily reject the solutions that the attorney has assisted in getting.
Here are a few ways to try to keep the client involved in the decision making process:
- Ask the client for what they think should be done in response to a negotiating move;
- Give the client 2 or 3 options to choose from each time;
- Have the client present the other side’s opinion;
- Ask why the other side might be arguing this position?
- Ask the mediator to spend time discussing the issues with the client
- Let the client know that it is his choice, but that you are there as an advisor, much like a doctor and patient. The patient doesn’t have to take the doctor’s advice. But how many patients don’t listen to the doctor when they are told there is a need for surgery?
Incorporating the client into the process can pave way for a very mutually beneficial result.