Page 5 - Alternative Dispute Resolution

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Alternative Dispute Resolution | MONDAY, MARCH 28, 2016 | S5

he felt so bad about putting his mother in Who will attend (or should attend) the attended, the case would have been more he is interested in continuing that relation-

that home, that he believed that only a mil- mediation? While there are cases in which likely to resolve.
ship. In fact, it is not always clear whether
lion dollars would make him feel as though you will not have a choice as to whom attends As for who should attend from the other a relationship must end. For example, in
he appropriately valued her life. Only after the mediation (or it will be quite obvious who side, consider who the decision-maker is. the settlement of an employment matter,
the client articulated these concerns was will attend), if you do have some control, it If your client has a relationship with the part of the resolution included the former
he able to meaningfully participate in the is worth thinking through and discussing the
decision-maker, can that be used effective- employee doing some consulting work for
mediation.
ly at mediation? Or is it better if they stay the employer, something that would not
Success at trial or arbitration is not the in separate rooms for the day? If there is have been contemplated until both sides
only basis on which a client makes a decision someone on the other side who your client fully discussed with their attorneys what
to resolve a matter. It is important to discuss If your client has a relation- thinks would be helpful at the mediation, they were seeking in a resolution.

with your client any non-legal considerations ship with the decision-maker, suggest to the other side’s lawyer before
that may inluence his or her decision to can that be used efectively the mediation.
The Client’s Role at the Mediation
settle. Does your client face signiicant inan- If there is insurance involved, find out
cial obligations unrelated to the dispute? Is at mediation? Or is it better if whether a representative from the carrier Consider whether an opening statement
your client concerned about the publicity will be present at the session. Whether the by your client would be productive. Hav-
associated with the dispute in the event they stay in separate rooms for carrier’s representative will be present or only ing fully discussed and considered with your
there is a lawsuit? Is your client prepared the day?
available by phone, consider how much the client what he or she hopes to achieve in
for several years of litigation, inancially and representative knows about the case. If you mediation and made sure the right people

emotionally? How would your client do on are representing a client with insurance cover- were attending, you will be in a much better
the witness stand? In a recent employment options with your client. If you are represent- age, evaluate whether it would be helpful for position to determine what role your client
mediation, an employer’s lawyer told me ing a business or an organization, consider if the carrier to hear from the plaintiff directly should play at the session. Mediation is the-
that even though she considered the plain- there is someone who not only has knowledge to assess credibility and/or how that person ater. While the lawyer has an opportunity to
tiff’s case to be weak, having the employer of the facts, but may also possess personality would do as a witness.
shine in mediation, your client is the star. If
deposed if the litigation continued would traits or other knowledge that may be helpful How to address a continuing relation- your client would be comfortable speaking at
be so detrimental that it was worth paying in mediation. For example, in a recent media- ship between your client and the other a joint session and would advocate effectively
more to settle the case. To be sure, there are tion involving real estate interests, one of the side. It is also important to consider wheth- on her own behalf, it is worth preparing her
some cases in which the only interests are attorneys told me that she wished she had er the dispute contemplates a continuing to do so. Of course, if your client is painfully

monetary and there are no considerations brought the vice-president of the board who relationship between the two parties, such shy or has personality traits that would not
that inluence your client’s thinking other had a legal background and a more down to as a business or employment relationship. present well, then he or she should not speak
than success in a future proceeding. How- earth personality instead of the president If the parties want to continue to do busi- at a joint session. Your judgment on this issue
ever, it is important that your client be able who not only did not fully understand the ness or work together, having your client is critical.
to articulate what she is hoping to achieve legal issues, but was also quick to anger. play an active role in the mediation may Many lawyers assume that they should
in mediation.
She believed that had the vice-president
help convey to the other side that she or
make the opening presentation » Page S13

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