Page 13 - Alternative Dispute Resolution

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Alternative Dispute Resolution | MONDAY, MARCH 28, 2016 | S13

Client Effectiveness
in the session. If caucusing is not producing

progress, a change in format, such as hav-
ing certain participants meet together, can
« Continued from page S5
be helpful.
like an opening statement at trial. And in some Interestingly, private caucuses can allow
cases, an opening focused on legal arguments parties to take tougher stands than they
may be appropriate as long as it does not would in direct negotiation. Attorneys can
antagonize the other side. But the advantage end up relying on their legal arguments like
of mediation is that you have the lexibility to
decide who will have the greatest impact on armor in battle, and fail to make progress. In a
recent mediation, the parties were more than
the other side. If you make a presentation on $500,000 apart after a morning in separate
legal arguments, your client could follow with caucuses that focused primarily on the merits
a statement about the business or personal of the plaintiff’s legal claim. Frustrated by the
impact of the case. If your client does make lack of progress, the decision-maker on the
an opening statement, however, make sure defense side asked to speak to the plaintiff
it is productive. For example, while speaking
about the impact of the claim on someone’s privately. They had worked together for some
personal life or business can be compelling, time and had some respect for each other.
Rather than discussing the merits of the legal
accusations and adversarial statements will claim, they discussed what they each needed
likely alienate the other side. If your client to resolve the case. Both had long histories
wants to express such comments, he or negotiating business transactions and treated
she can do so in a private caucus with the this as another deal to close. After a half an
mediator.
Notably, just as it may be valuable for the hour, they reduced the gap considerably,
other side to see your client in action, it can paving the way for an eventual settlement.
also be valuable for your client to hear the A caveat in these situations, however is that
other side’s case from the principal rather your client may make a proposal without hav-
ing discussed it with you irst, which can make
than only from the lawyer. In a mediation future negotiations dificult. If possible, dis-
involving a mass layoff, the employer’s apol- cuss with your client ahead of time what, if
ogy to the employees at the opening session
helped diffuse the employees’ anger and set any, proposal he or she plans to make.
a tone for productive negotiations.
In short, while there is no prescription for
Would a face-to-face meeting between client involvement in mediation, there are Give Your Clients a Gift with
your client and the other side be valuable? certain factors to consider when preparing
Although private caucuses with the mediator for mediation and in deciding what role your Real Value.
are common in commercial mediation where client will play. Making sure your client is
engaged and prepared to be an active partici-
the discussions focus on money and legal
issues, having different parties come together pant, whether making an opening statement, Grant your clients unlimited access to
can be effective as well. In addition, even if engaging in a face-to-face discussion with the
the parties hold private caucuses after the other side, or maintaining a quieter role, can award-winning legal news coverage with an
opening session, they can meet together later
be critical to achieving a resolution.
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