Here are some of the biggest mistakes lawyers make in mediation that you should keep in mind.
Mistake #1: They are not prepared.
To my continued surprise, lawyers occasionally show up at mediation having either failed to analyze the liability issues adequately or having neglected to spend enough time doing a thorough damages assessment. Not only does this put the lawyer in a position where he/she is unable to fairly advise the client, it tends to waste time because these lawyers will inevitably consume a good portion of the mediation conducting the analysis which they should have completed in advance.
Mistake #2: They have not adequately discussed the strengths and weaknesses of the case with their client.
If a lawyer and client are not on the same page in terms of the strongest and, perhaps more importantly, weakest points of their case, everybody is in for a long day at mediation. Lawyers shouldn’t cater to their clients, agreeing with everything they say when discussing the case. It is a lawyer’s job to provide a client with a candid analysis of the case so they can react accordingly. Waiting for a mediator to give the client a dash of “tough love” and sober them up isn’t going to improve the attorney-client relationship.
Mistake #3: They have selective hearing.
Sometimes, lawyers head into mediation with rigid if not arrogant beliefs regarding the merits of their case and, as a result, don’t listen meaningfully to the arguments being relayed to them through the mediator. Big mistake. Many times, the door to a reasonable settlement does not open until a lawyer and his/her client focus on their opponent’s strengths, which allows them to more fully appreciate the risks of further litigation and therefore promotes settlement.
Mistake #4: They act like somebody they’re not.
Many clients want their lawyer to be a bulldog. They believe the lawyer who argues the most, or the loudest, or pounds on the conference room table, is the better lawyer. If a lawyer is not a bulldog but believes his/her client wants a bulldog, the lawyer should discuss his/her approach with the client in advance, to make sure the client understands the plan and the reasons the lawyer will be acting consistent with the plan (and not acting like a bulldog). They shouldn’t try to pass themselves off as bulldogs. Being a bulldog is not a prerequisite. Sure, bulldogs sometimes win. But, trying miserably to be a bulldog when it’s not in your DNA is likely to lead to an unimpressed client. Managing a client’s expectations is critical. If a client thinks they’re attending a boxing match and the lawyer takes them to a dance recital, the lawyer might have a lot of explaining to do.
For more information on this article or the other articles in this series, be sure to check the Trial Lawyer on Your Side blog next week or contact the Goosmann Law Firm at info@goosmannlaw.com or (712) 226-4000.