Contentious trust and probate disputes are tough to resolve because of the emotion and psychology at play. Advising the client about the law is often the easy bit.
Most cases settle without going to Court, so it is best to bear this in mind from the outset of the case. Whilst your client may tell you they want you to write lengthy, aggressive letters, this is rarely in the client’s best interests. It generally has the effect of deepening the other party’s wounds, hardening their appetite to fight, and making costs spiral out of control.
So what is the best way to prepare for and approach a mediation? I’ve put together a list of my top ten tips for mediation success.
- Know your client and think about the other room
What does your client actually want? Often it’s not what they have told you from the start of the case. What are they willing to give up to find resolution? Try to understand the underlying needs and interests of all the parties involved, not just your own client. Think about what it must feel like to be sitting in the other room and tailor your approach according to what the other party will react best to.
2. Preparation, preparation, preparation
When mediation fails to end in settlement it is often down to poor preparation. Do you have the necessary and up to date asset valuations? Have you obtained the appropriate advice about the tax implications of settlement? Do you have sufficient disclosure and information from the other parties to enable you to give appropriate advice to your client on settlement parameters? Is there sufficient understanding of exactly what is being argued over? Mediations can be costly, but preparation time often misplaced.
A mediation is not a mini-trial so don’t get obsessed with the historic facts, evidence and the documents in the bundle. A mediator is often sent too much. We don’t need to see everything that has passed between you. A well-prepared bundle should have the key testamentary documents and estate information at the beginning. Previous without prejudice correspondence should be separated out. Only include key excerpts from medical records/bank statements etc, rather than whole sets. Avoid duplication of documents and please, no paper bundles! The electronic bundle should be bookmarked and paginated for easy and quick navigation during the mediation. Finally, come to the mediation with precedent settlement agreements to save time at the drafting stage.
3. Pre-mediation statements
A statement before a mediation should be precise and set out what your client wants to achieve. It is without prejudice so it should be constructive and conciliatory. It should be brief with limited legal analysis. A mediation shouldn’t start with an unnecessary argument about the law – your job is to do a deal, not make submissions. Avoid the temptation to use the mediation statement as an opportunity to insult and hurt your opponent – that will make the parties go backwards before they go forwards and will do nothing to help your client get what they want. For my further thoughts on what makes a good mediation statement, read my blog: https://www.doveintheroom.com/how-to-write-an-impeccable-mediation-statement
4. Adopt a mediation mindset
This applies to lawyers and clients. A mediation is not aboutproving you are right and why you will win. You have probably spent months or maybe even years setting this out for your opponent at great length. They have not shared your perspective until now, so why are they going to agree with you just because you have repeated lengthy points prior to mediation? A brief summary of your best points will suffice.
Help your client release the need to be “right”. Author of “The 7 Habits of Highly Successful People”, Stephen Covey, said: “Two people can see the same thing, disagree, and yet both be right. It’s not logical; it’s psychological.” Unlike Court, a mediation is not designed to elicit the truth. It’s about finding new perspectives rather than proving facts. It’s best to attend a mediation with an open mind about what the outcome should be. Be careful about fixed or bottom lines. They are often artificial and if resolution is to be found, those lines are normally crossed by all the parties. Help manage your client’s expectations by not planting fixed ideas in their heads. Don’t mess about with pretend final offers! You lose credibility if you don’t mean it. Finally, be open with the mediator about what your client really wants. Hopefully you will have built up trust in the mediator, so don’t play games and shut the mediator out of important discussions about the reality in your room. It can waste a lot of precious mediation time and risk the negotiations falling apart.
5. Manage your client’s expectations
I often see cases where a client is not advised properly until the morning of the mediation. Often it is the first time they have had contact with their Counsel. Make sure your client has received realistic advice about the prospects of their case before the mediation. Don’t wait until the morning of the mediation to explain the flaws in their case. Lawyers often fall into the trap of thinking that their client will lose confidence in them if they are not positive about their client’s case. This often comes from a misguided sense that you are not a good enough lawyer if you can’t turn every case into a winner. If a settlement is reached at mediation, often both parties walk away relieved, but mildly disappointed with the outcome. That’s the nature of compromise. The mediation is less stressful for the client if they are prepared for this in advance.
6. Be polite and empathetic
Negotiations are not a time for insults and posturing. There is room for kindness and compassion from both the client and the lawyer. Compassion is not a sign of weakness. When used appropriately, it can often help your client achieve what they want. Remember that everyone involved in the mediation is doing their best with the thinking that they have at the time. You may not agree with that thinking, but if you were walking in their shoes, you probably would. Remember if you were advising the client in the other room, you would probably be making the same points so don’t be surprised or take offence at the points they make – they are based on the genuine perspective as seen from the other room.
7. Don’t fear your client’s feelings and emotions.
Family conflict is often caused by long standing issues (sometimes going back to childhood), which normally cause emotional blockages. This is often what is at the heart of the any conflict. Whatever it is and however irrelevant you may consider it to be, it needs to be heard. Bottling it up risks an angry outburst when the going gets tough in a mediation. This is known as an “amygdala hijack”, causing a fight or flight response to occur in the brain. This decreases activity in the cortex of the brain resulting in a person finding rational thought difficult. Release of the emotion often results in clarity, which puts your client in a better position to rationally consider options for resolution.
8. Don’t underestimate the impact of mental health
Think about what your client needs to be in the best shape to mediate and be ready to settle. They may have a need to take medication, which could affect the timings of the mediation and when a client is likely to be at their best. Share that information with the mediator so they can make any adjustments to the process on the day. Consider whether your client may benefit from professional therapeutic help in advance of the mediation. Lawyers can’t be everything to everyone – they are not trained counsellors and have rarely been trained in how to listen truly and effectively. Family lawyers often advise their client to consider counselling or a divorce coach early on in a case. You may fear bringing this delicate subject up with your client, but they may also thank you. It could even be life changing and transformational for them.
9. Show some respect and allow dignity
There is always a place for showing respect to the parties you are negotiating with, whether that is to the clients, mediator, or the lawyers. Sun Tzu wrote in the art of war: “Build your opponent a golden bridge to retreat across”. In any battle, dignity is important. You may need to adopt a face-saving strategy for the other mediation participant. Attend to listen, understand and respect the other party’s perspective, even if you do not agree with it.
10. Acknowledgement can be negotiation gold dust
Don’t shy away from acknowledging things that are important to the other party, especially if it does not detract from your client’s case. For example, why deny the existence of a relationship if all you need to prove is that there was no cohabitation? Offering an acknowledgement, or sometimes an apology, can go a long way to helping your client achieve what they want and can be more valuable than money.
If you enjoyed reading this blog and want to know more, I offer free training to law firms on “How to prepare your client for mediation”. If you are interested, please contact me to arrange a date on email@example.com.