Bringing Your Client to Mediation: the pros and cons considered

This week we return our attention to a topic we have discussed previously on the blog (most recently here). It is a question that comes up for consideration just about every time you prepare a case for mediation: should you bring your client to the mediation?

Many personal injury lawyers we know seem to be in the consistent habit of bringing their clients into mediation. There is also a sizable number who take the contrary view.

Our own view is a little more nuanced. As a general practice pointer, we find more often than not there will be a clear advantage in having your client participate in case mediation. We summarize what we see as the benefits of client participation in the list immediately below. But we also recognize that there may be a number of special factors that could shift our thinking in any given case. So we have prepared an additional list of extenuating circumstances that should also be considered.

Major Reasons to Bring Your Client to Mediation: 

1. A mediation session presents your best opportunity to make a strong impression on the claims’ adjustor. Bringing your client demonstrates the client’s seriousness about the claim and provides a first hand impression of their credibility. Remember, the general goal heading into mediation is to induce the adjustor to come forward with the best number possible.
2. It’s not just a matter of credibility. Very often bringing your client will enable you to put their injuries on display, which can have a powerful impact on all those in attendance.
3. More often than not we find that adjustors prefer to have clients attend because they believe it creates the best environment to promote settle. We don’t necessarily think what an adjustor wants constitutes sufficient reason, in itself, to bring your client. But remember how pissed off you get when an adjustor doesn’t bother to show up for mediation. So in the interest of creating the best possible climate for settlement, it’s probably a good idea for your client to be there.
4. Our general experience is that mediators also want to see your client face to face instead of just hearing about the case through your submissions.
5. In cases where you have a difficult client, with unrealistic expectations about the value of their claim, bringing such a client into mediation provides an opportunity to let them see and hear, through the mediator, the arguments advanced by the defense. Participation in a mediation session will often make a difficult client much less balky about a proposed settlement.

Some Additional Considerations

1. Let’s face it – sometimes your client makes for a lousy witness. Does it really make sense to expose a potential major weakness in your case? In those situations where the impression made by a client is likely to do more harm than good, we nonetheless recommend that you arrange for your client to be on standby somewhere nearby during the mediation session, so they are available in the event the opportunity presents itself to settle the case on favorable terms.
2. There are some cases where a lawyer finds it difficult to control the relationship with the client. In those cases, a lawyer may be wary about giving the adjustor a chance to sway the client’s thinking, thereby putting the lawyer’s control or influence over important decision-making at risk. This can sometimes be a tough call but we generally think it’s better to have your client more not less informed.
3. Many times a mediation session doesn’t lead to immediate settlement; rather it starts a process that can extend for weeks or months. A client may come to a mediation session expecting prompt resolution and end up disheartened and discouraged at the prospect of more delay. We don’t see this as a reason not to bring your client along. More often than not it’s a problem better handled by better setting expectations up front.
4. Remember – anytime the defense knows your client’s schedule in advance, it presents the defense with a good opportunity to arrange for surveillance. So by all means, go ahead and bring your client to the mediation session, but don’t forget to remind them that it’s highly likely a camera crew will be positioned across from their front door.

Related Posts

• How To Identify Which Cases Are Ripe For Mediation
• Getting the Most of Out of Your Next Mediation
• Knowing When to Say No and When to Say Yes in Settlement Negotiations
• What Types of Cases Should You Mediate?
• What positives can come out of an unsuccessful mediation?