www.loubar.org 10 Louisville Bar Briefs PROFESSIONAL EXCELLENCE Convincing Your Client that Mediation is the Way to Go Dana Eberle As practitioners, we know that mediation is a powerful tool that can save our clients time, money and emotional stress—but convincing them to participate isn’t always easy. Many clients, particularly those in contentious dis- putes, believe the courtroom is the only path to justice. The argument I hear most often from my clients is, “If we could agree, we wouldn’t be in court to begin with.” The second most common source of client resistance is a need to be heard by the judge – they have the “winning” case, so why not let the judge tell the other party that? As advocates for our clients, it’s our job to educate them on their options and guide them toward solutions that protect their interests and support efficient resolution. We have to make them understand that mediation is power. Start educating the clients early and clearly. Clients often resist mediation because they don’t understand what it is or how it works. During the intake or initial consultation, explain mediation as a possible path in their case. Set the expectation early that media- tion is favored by the courts, and may even be ordered. Explain mediation as a volun- tary, confidential process led by a neutral third party. Yes, even if the court orders them to mediate, it’s still voluntary. Emphasize that they do not give up any rights – they can still proceed to trial if mediation does not result in a settlement. Use plain language and analo- gies to demystify the process. For example, I tell my clients that the mediator is literally looking at both parties’ standing across a chasm and trying to figure out how to build the bridge between them. The solution is somewhere on that bridge. Once your client understands what media- tion is, it can help to focus on the benefits of control and empowerment. Help clients understand that in mediation, they – not a judge – control the outcome. Stress that they can help craft a solution tailored to their specific needs. I tell my clients that we can get very creative in mediation – coming up with solutions that the judge would never think of. Highlight that mediation avoids the risks of a courtroom “winner-loser” outcome. Explain that mediation is an opportunity to assess the strengths and weaknesses of their case: they can learn which arguments aren’t as strong as they thought, and which arguments they should be focusing on. They’ll also get a sneak peek at the “attack” the other side will be making against their case, and skillfully craft agreements that avoid those risks while taking advantage of the strong parts of their case. And because so many clients deeply value being heard by the judge, point out the opportunity to be heard directly – as well as the opportunity to bring up subjects and ar- guments that may not be admissible in court. Many lawyers don’t recognize the value of letting their client vent in mediation (although it should be carefully restricted and focused). Talk to your client about the emotional and financial considerations. Clients in emotion- al disputes (like family or employment cases) may be driven by a desire for vindication. They often do not understand that showing their emotions in court – especially with out- bursts or disrespectful statements – will not be helpful to their case. Frame mediation as a less adversarial, more respectful process. This can be especially true with “shuttle” mediation (where the parties do not face each other). If your client’s case is an emotional one, consider the benefits of not having them sit in the same room as their “enemy,” where adrenaline controls the flow of media- tion. Quantify the cost savings compared to litigation (court fees, attorney time, expert witnesses). Discuss how mediation may help preserve relationships (e.g., with co-parents or business partners). Highlight the efficiency and speed of media- tion. Explain the realistic timeline for litiga- tion versus mediation. Mediation can often be scheduled and resolved in weeks, where court cases may take months or years to resolve. If urgency or closure is a concern for the client, mediation is often the fastest path to resolution. I often find it helpful to point out to clients that, if we’re lucky, we’ll get an hour, maybe two, to put our entire case before the court, whereas mediation can take all day if necessary, or even spill into a second mediation. Reassure your clients about the fairness and safety of mediation. Clients may worry about being pressured or disadvantaged in mediation. Reassure them that you will be present to advocate for them and ad- vise them. Emphasize that the mediator is neutral, and that any agreement must be voluntarily accepted. No one will force them to agree to something. It is their case, and as long as they fully understand the risks of going to court, if they decide to turn down any proposals and try their luck with the judge, their attorney will support them in that decision. Again, suggest shuttle mediation to protect emotional safety. Use success stories and statistics with the this-will-never-work client. Provide real- world examples of successful outcomes in mediation. Tell the client how often you mediate, and how often it results in a settle- ment. I typically respond with, “Everyone thinks that. But in my experience, mediation is at least 90% successful. And even if it isn’t in your case, you’ll be better prepared for court.” If local courts strongly encourage or mandate mediation, use that as an incentive. When talking to your client about mediation, tailor your approach to the client’s personal- ity and needs. Some clients respond to logic and numbers, others to emotion or storytell- ing. Customize your pitch. For risk-averse clients, stress the certainty and control of mediation. For combative clients, frame it as a strategic step to strengthen their case. For overwhelmed clients, present it as a way to reduce stress and simplify the process. For these clients, I often underscore how laid-back the mediation process is: we’re not in court, you don’t have to dress up, you’re the only one making decisions, and we’ll order in lunch! Once your client is convinced (or if it’s been ordered and they have no choice), make sure you prepare your clients for the mediation process. One way to boost participation is to help clients feel confident. Walk them through exactly what to expect. In my prac- tice, we are never in the same room with the opposing party. My clients are often relieved to hear this. Help them define their goals and acceptable outcomes. Ensure that they understand that mediation is all about compromise. Set the expectation that no one “wins” at mediation – that they will have to decide which issues are more important for them, and which issues can be ceded to gain ground on the more important ones. Encouraging clients to engage in mediation requires empathy, education and strategic communication. Clients often take their cues from their lawyer’s attitude. If you are visibly supportive of mediation, they are more likely to trust it as a legitimate option. Your tone can de-escalate the dispute and build openness. By presenting mediation as a powerful, client- driven tool – not “caving” or “giving in” – you can help them see it as a step toward resolu- tion and empowerment. With the right fram- ing and preparation, even the most skeptical clients can become open to mediation – and often, grateful for the opportunity. Dana M. Eberle is a partner solely practicing family law at Church Langdon Lopp & Banet LLC. She is a registered mediator and serves as a Guardian ad Litem. Dana is currently co- chair of the LBA ADR/ Mediation Section with her partner Larry Church. n
