One of the most important things to do to prepare for mediation is to get the client ready for mediation. If you are prepping a client for mediation in a personal injury case, don’t forget to prepare the client for what may come in the defense lawyer’s opening statement.
Some lawyers try so hard to get the mediator on their side, they go overboard in their opening statement to the mediator, outlining the deficiencies in the opposing party’s case (sometimes even attacking the opposing party or his/her personal injury lawyer). This is wildly counterproductive, but some lawyers cannot seem to help themselves.
Making matters worse, the practice in much mediation is for the defense lawyer to address the client directly. This does one of two things to clients: (1) makes them scared to where they will settle for anything, or (2) dig their heels in deeper.
In mediation, both are unacceptable outcomes. Get the client ready for this. Plaintiffs should expect to hear a frank discussion of the defense’s contentions as to the weaknesses of their case. In your own opening statement, eschew personal attacks and speak kindly if you can of the defendant’s lawyer (particularly if their client is in the room, they are always appreciative). Mediation is not a place where blistering temperatures facilitate a better outcome.
The other way to help your client relax during mediation is by being incredibly well prepared. Plaintiffs’ personal injury lawyers should prepare to provide a detailed analysis of how they intend to prove that all the damages claimed result from the defendants’ conduct, and should prepare to address liability issues head-on with the mediator and the defense lawyer. Remind the client why the client initially hired you.