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Wednesday
Nov232011

Of Mashed Potatoes and Mediation

By Christie Foppiano

With November in full swing, my thoughts naturally turn to Thanksgiving.  This holiday conjures up not only iconic images of turkey and dressing but of sharing and peaceful gatherings.  In the spirit of peacemaking that Thanksgiving aspires to bring, I have formulated some questions that may be helpful in preparing your client for mediation (which I hope will also be peacemaking).  Even if the parties are as different as Pilgrims and Native Americans, working through these questions may assist you in understanding what matters most to your client and in working toward achieving those objectives in mediation. 

1. What is the case really worth based upon an objective review of the facts and law? 

 If you are the plaintiff’s attorney, you should explain (or perhaps once again reiterate) the range of recovery your client might reasonably expect to receive at trial.  You should obviously indicate the likelihood of obtaining such an outcome.  If you are a defense attorney, you should have the same conversation with your client.  Naturally, counsel for the parties will often disagree about the value of the case but each side should know and understand their own position.  Your client should also understand the strengths and weaknesses of his case.  If your client does not like what you are saying, your mediator should be able to help you make those points in caucus.

2. What outcome does your client want?  Does that desire have any objective relationship to the case’s value?  

Prior to mediation, you should know what your client’s expectations are and the basis for them.  A plaintiff may want $1M after a minor slip and fall because he no longer wants to work.  A defendant may refuse to pay a penny to her former business partner even though she knowingly breached their partnership agreement.  Having this information will help you to review and evaluate those desires in the reality of the case and the legal system.  This conversation will provide you with an opportunity to explain what considerations are relevant in court and whether a judge or jury is likely to consider your client’s desired outcome.  Again, if your client does not like your message, mediation presents an opportunity to reinforce this information with the help of a mediator. 

3. What is the case really about to your client?  

Is money your client’s primary objective?  Or is it something else and is that desire one that the legal system is designed to provide?  For example, a family who has suffered the loss of a child may not only be looking for money to pay for their child’s medical bills during her prolonged care.  Do they want to punish the defendant for their loss?  Is their primary objective having their child’s memory preserved?  Evaluating your client’s needs and explaining those that the legal system is designed and equipped to provide may be able to help you reach a settlement agreement.  Negotiating to include an intangible which is important to your client may increase the likelihood of a settlement.  In this example, a way to memorialize the family’s child along with a monetary payment might satisfy both their tangible and intangible needs.  A trial court would not be in a position to help the family preserve their child’s memory but a settlement agreement might be able to do so.

4. What are the hidden costs of litigation?

This is an important question for all the parties.  What recovery might the plaintiff obtain (or not) and what judgment might the defendant be required to pay?  In addition to attorneys’ fees and other expenses, what are the other costs of litigation such as missed work or other business opportunities?  What is the emotional impact of litigation and the demand on the time and energy of the parties?  This inquiry might be one that is best saved for mediation particularly if the parties are getting close to a settlement.  While civil litigation speaks only in terms of money, it has non-monetary side effects.  Helping your client (and possibly the parties) achieve closure, especially in personal injury or death cases, may also help the parties reach a settlement agreement.

If you and your client explore these questions, you will both be ready to see where the mediation process takes you.  With some hard work and a little luck, the parties will understand each other’s positions even if they are not ready to share a meal by the end of the mediation.  At a minimum, your client will have explored the possibility of peace before going to war.  And if war is the answer, you and your client will both understand why and for what you are fighting.

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