These practice tips are drawn from the April 12, 2016, MSBA CLE co-sponsored by the ADR Section and Labor & Employment Law Section: "How to Manage Client Expectations in your next Employment Law Mediation – For Attorneys and Mediators," by speakers Ellen Sampson, Larry Schaefer, and Joe Schmitt, and moderators Linda Mealey-Lohmann & Joe LeBlanc, with thanks to T.J. Conley.
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Before the mediation, prepare your client well by explaining the process, setting reasonable expectations, identifying non-monetary options, and anticipating an emotional and at times frustrating session.
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Prepare your client, particularly if you represent the plaintiff, to take an active role in the mediation and to talk to the mediator and to the other side. This is a chance for the clients to feel they have been heard by the other side.
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It is not effective to start a mediation with an "opening statement" like one would hear in court, as it will likely inflame the other side, entrench the parties, and possibly derail the mediation. Think about your choice of words and tone of voice in setting a collaborative tone to start the mediation.
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Treat the mediator as your partner. Before the mediation, have a confidential phone conversion with your mediator to discuss status of negotiations, possible obstacles, client problems, and how the mediator can be helpful.
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If impasse is looming, mediators and lawyers can help the parties be patient and not give up. Some suggestions for the mediator include checking to see if anyone has further thoughts about resolution or what else to try, providing food, taking a break & getting some fresh air, or giving the parties 24 hours to think over the last proposal.
Compiled by Linda Mealey-Lohmann, Past Chair MSBA ADR Section.