Sep 16, 2021
Destressing Clients (And Us Too): Steps to Improve ADR Efforts and Client Relationships
[Published in Litigation Tips, the Alameda County Bar Association Blog, September 15, 2021]
Civil mediations are by their nature stressful events. Disputants can’t agree on who’s likely to win or the shape of a resolution. So you bring in a third party who may agree or disagree – or at least raise serious concerns – as to your assessment. Stressful to say the least.
It doesn’t need to be this way. Practical steps follow to reduce the stress and anxiety of unpleasant and avoidable surprises. But first, let’s consider what we’re up against.
Coupled with the stress of mediations is the reality that clients and counsel are pre-wired to overweight their own prospects and underweight the tradeoffs. Behavioral studies confirm that clients and counsel routinely overvalue their positions and their worth. In turn, plaintiffs frequently leave money on the settlement table (compared to the litigated outcome) and defendants periodically encounter painful losses. Bad for clients; real bad for client relations.
Modern mediation practice often makes things worse by delaying a thorough an unvarnished assessment. Rather than engaging early and often with the other side about merits and settlement options, lawyers frequently delay a deep dive until the mediation itself. By then, the sunk costs of the litigation may eclipse the value of the dispute. As well, positions have by then hardened even further, making it more difficult to readjust expectations precisely when expectations need to be reset. Finally, lawyers often resist sharing their mediation briefs – keeping the other side in the dark pre-mediation as to their best evidence and positions.
So, what to do? A few recommendations to reduce – if not eliminate – the stress of mediations for both clients and the folks who represent them: