Is Your Client Ready to Mediate?

Prudent lawyers do not recommend that clients waste money pursuing litigation steps or a strategy that is doomed to fail.

Prudent lawyers should not recommend that clients spend time and money on voluntary mediation that is destined to fail because one or more participants is not ready to mediate.

Clients are not ready to mediate when the absence of evidence on one or more critical points will be an insurmountable barrier to resolution. Being ready to mediate includes having the evidence the client needs to meaningfully assess the strengths and weaknesses of each mediation participant’s “BATNA (best alternative to a negotiated agreement) strategy”, or “what you’ll do if you don’t reach a deal”. (1)

The client is unlikely to “reach a deal” if the client has unreasonable expectations notwithstanding their lawyer’s advice. The client is probably wasting money on a mediation that is destined to fail because the client’s monetary and/or other non-negotiable settlement requirements are so unrealistic as to fall far outside any foreseeable Zone of Agreement.

The mediator can act as a “reality check” without compromising neutrality. “A reality check occurs when the mediator asks the parties to examine their expectations and helps them ensure that they are realistic.”(2)

“Essentially, this means asking them about aspects of the cases where they might be making overly optimistic assumptions.”(3)

The mediator might attempt to “work to convince the intransigent negotiator that his or her belief that the other party or parties will eventually accept the current position is inaccurate and that there is a need to search for alternative options for agreement” (4) or attempt to persuade the unrealistic participant to temporarily put their unrealistic demand on hold or back off from it and explore other options. (5)

David Hoffman has written with respect to BATNA that “when the client needs to be more flexible, or more realistic about the court outcome, and the client’s attorney is reluctant to insist on such realism, a mediator may be able to communicate the message to the client.” (6)

Respectfully, counsel should not be reluctant to insist on realism in advising a client whether or not to incur the expense of mediation. Counsel do not need to maintain neutrality, as do mediators. Counsel is entitled, indeed obliged, to be evaluative. Counsel needs to advise their clients in advance of committing to mediation whether or not their settlement expectations/demands are realistic. By the time the mediator is involved, an intransigent and unrealistic client has already incurred the expense of a likely-to-fail mediation.

If such client has not accepted their lawyer’s advice as to the realistic range and options of settlement, or the lawyer has caused the client to be overly optimistic by being reluctant to “insist on realism”, the client may be taken aback and ultimately resistant to the mediator’s “reality check” or other problem-solving techniques.

  1. Negotiation Insider, January 12, 2021. The Program on Negotiation authors credit Getting to Yes by Fisher, Ury and Patton (1991) as having introduced the concept of having a BATNA (best alternative to a negotiated agreement) strategy as “the standard against which any proposed agreement should be measured… the better your BATNA, the greater your bargaining power.”
  2. The Art and Science of Mediation: Picard, Bishop, Ramkay, Sargent, (2004) at p. 282.
  3. Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals: Hoffman, David (2013) at p. 4-47.
  4. The Mediation Process: Moore, (4th ed. 2014) at p. 388.
  5. Ibid at p. 389.
  6. Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals: Hoffman, David (2013) at p. 1-22.