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 personally attacking the opposing party or his/her personal injury lawyer).
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 the point where they will settle the case for anything, or (2) dig their heels in deeper. In mediation, both are bad 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 possibly can of the defendant’s lawyer (particularly if their client is in the room, they are always appreciative). Mediation is not a place where hot temperatures facilitate a better outcome.
Of course, the other way to help your client relax during mediation is by being incredibly well prepared. Plaintiffs’ personal injury lawyers should be prepared to provide a detailed analysis of how they intend to prove that all of the damages claimed are a result of the defendants’ conduct, and should be prepared to address liability issues head on with the mediator and the defense lawyer. Remind the client why the client hired you in the first place.