HCBA Lawyer Magazine Vol. 28, No. 3 | Page 52

Your “DiffiCuLt CLient” anD MeDiation
Mediation & Arbitration Section
Chairs: Kari Metzger - Metzger Law Group P.A. & Robert Scanlan - Hyde Park Mediation Group
as Jerry
Maguire said,
“help Me…
L
awyers sometimes learn
after they take a case that
they have a client with
unrealistic expectations
about the value of their case.
Plaintiffs sometimes tie the amount
they need to get in settlement to
their financial needs unrelated to
the case. Defendants sometimes
feel that paying significant amounts,
or agreeing to non-monetary
concessions, is tantamount to
admitting they are “bad” or did
something wrong, despite knowing
that they will be able to expressly
deny liability or wrongdoing in any
settlement agreement. Often, the
client’s intense dislike of the other
party gets in the way of logic.
One solution to this problem
involves using your mediator to the
fullest. Specifically, a confidential
call or meeting in advance of
mediation in which you let the
mediator know of the difference
in opinions, misplaced motives,
or emotional roadblocks can help
your mediator work with you to
help eliminate any “disconnects”
between you and your client.
Sometimes when a client hears
the same perspective on a key issue
from the mediator as the client has
been hearing from their lawyer, this
allows the client to truly consider
for the first time that they may have
an inaccurate view of their case’s
strength or an unrealistic case value
in mind. Sometimes an advocate
50
help You!”
© Can Stock Photo / eelnosiva
cannot effectively point out
problems with the client’s case, or
strengths of the adversary’s case,
without appearing to be weak or
being viewed as taking the other
side. The mediator can help
overcome those obstacles.
Of course, the mediator has to
comply with the Rules for Certified
and Court-Appointed Mediators in
doing so, including the prohibitions
against “offer[ing] a personal or
professional opinion intended to
coerce the parties,” “unduly
influenc[ing] the parties,” or
“offer[ing] a personal or professional
opinion as to how the court in
which the case has been filed will
resolve the dispute.” 1
But that does not mean the
mediator has no tools to help your
client see a different perspective.
The Rules provide that a mediator
may “point out possible outcomes
of the case and discuss the merits of
a claim or defense.” The mediator
can also “raise issues and discuss
strengths and weaknesses of
positions underlying the dispute.”
Finally, in addressing the difficult
client, the mediator may “call
upon their own qualifications and
experience to supply information
and options,” provided the client is
ultimately “given the opportunity
to freely decide upon resolution.” 2
In other words, the mediator can
ask questions of the client about the
weaknesses of the case, raise issues
such as the absence of a correlation
between the value of the case and
the client’s unrelated financial
needs, or supply information to the
client based on the mediator’s own
qualifications and experience. The
mediator can also find talking
points to steer around emotional
roadblocks that the advocate cannot
effectively broach without risking
the accusation of being disloyal.
By doing so, the mediator can
make sure the client has all the
information necessary to properly
understand their case and the
options to resolve it, while also
demonstrating to the client that
their attorney is — and has been —
accurately evaluating the case.
But to do so, the mediator has to
know that there is a disagreement
between the lawyer and the client.
So tell your mediator.
As Jerry Maguire said, “Help Me
… Help You!”
See Rule 10.370, available at
http://www.flcourts.org/core/fileparse.
php/422/urlt/Mediator-Rules-Tab-
3.pdf
2 See
Committee Notes
to Rule 10.370.
1
Author:
Jim
Matulis -
Matulis Law
& Mediation
JAN - FEB 2018
|
HCBA LAWYER