Client Participation in Mediation – To Speak or Not to Speak

The purpose of mediation is to give the parties an opportunity to have a discussion and possibly develop a solution to a dispute. The assistance of a skilled and experienced mediator helps to provide the parties with a facilitator who can assure a neutral environment, help the parties to explore options, and use proven techniques to overcome impasse.

A good mediation allows for creativity in problem solving and empowers the parties to come up with a solution tailored to their particular circumstances. In addition, the parties have an opportunity to vent and have their feelings acknowledged. This enables them to move on emotionally and psychologically, which serves to help them shift the focus from blame, battle, and defense, to problem-solving. The problem is that many advocates do not realize that in order for mediation to be effective, their clients must participate – be engaged. That means they have to talk. Otherwise, it is just a settlement conference where the parties abdicate control to their attorneys. A settlement conference does not provide for the flexibility, creativity, client venting or control in resolution development process.

 A mediator’s job is to get the parties to talk, so that the mediator has an opportunity to address hidden agendas and emotions that are at the route of their decision-making. Many times, advocates tell their clients not to talk, but to let the advocate do all the talking. It is immediately apparent to a mediator when a lawyer’s client has been so advised or instructed. In these cases, progress tends to stall and potential for success becomes more remote. Other times it is readily discernable that the client is afraid to speak and feels that they have hired the lawyer so that they do not have to speak. Good lawyers and mediators in this situation patiently and gradually work to increase the party’s comfort level and encourage them to speak, until they are doing so easily, shifting the mediation into a higher level and accelerated pace in the resolution process.

 An advocate who wants to make the most of the mediation opportunity for the client should work with their client to prepare the client for actively participating in the mediation process. Here are some suggestions for client preparation.

 

  1. Take the time to explain the mediation process.

Be thorough in your explanation and discuss the roles of each of the expected participants. Printed materials or videos available on the internet or published by various agencies or organizations are often helpful.

 

  1. Be specific about your client’s role and what is expected of them.

Go over carefully what is expected from the client by you, the mediator, and the other parties (including attorneys). Practice a bit with your client some scenarios in mediation to enable them to get comfortable with the process; specifically, opening, hearing from each party in joint session, caucusing, etc.

 

  1. Find out what your client needs to be comfortable in their environment.

Does your client have any special needs or preferences? Do they smoke and need smoke breaks? Can they sit for long periods? Do they have hearing or speaking problems (naturally soft voice or stutter?) Perhaps you can arrange for a seating arrangement that might be more conducive for your client’s participation.

 

  1. Give your client some positive examples or anecdotes of successful mediations.

Since your client may not have personal or professional experience with mediation, you can substitute with the positive experiences of others by anecdotal information. This gives your client a vicarious point of reference to draw from, and may also serve to give your client examples as to how they might like to participate.

 

Like anything else, preparation is the key for successful client participation in order to maximize the potential benefits of mediation.