When I was a young trial lawyer, I sometimes instructed clients to keep completely silent during mediation, particularly the clients I feared would give away the farm, like Kramer from Seinfeld in this clip. But I eventually learned that interacting with the mediator is in the client’s best interest. The interface between mediator, counsel and client is highly valuable to making thoughtful decisions.
Sometimes, lawyers have gone so far as to have nearly all of their communications with me privately in cases in which their clients are competitive, volatile or unyielding. For example, when they send me out of the room (pre-pandemic rooms) to discuss the next offer with the client. Instead of asking me back into the room, they come out of the room to relay the offer outside their client’s presence. I do not recommend doing this. It often leads clients into an uncooperative place.
When mediators hear the reasoning behind a settlement offer directly from, or in front of, the client, they are better able to facilitate negotiations by assisting the parties in evaluating the case and making recommendations as to compromises that will lead to settlement. Mediators are practiced in listening and watching for subtle cues about party interests that might assist them in breaking an impasse.
The client also benefits from interactions with an experienced mediator. For example, a mediator’s reaction to a proposed offer—good, bad or indifferent—should be observed by the client. The mediator must have the opportunity to both build trust with the client and to reduce expectations which will lead to concessions. A client isolated from the mediator is much less likely to understand that they are not going to get everything they want and become immovable in their positions, often not to their long-term benefit.
Lastly, it is incumbent upon the lawyers to be open-minded. Lawyers and their clients inherently view their client’s case through less objective lenses. A lawyer willing to challenge their own perception of the strengths and weaknesses of the case is offering the best possible representation. And part of that open-mindedness requires observing your client interact with the mediator. If you expect your client will do well during cross-examination by opposing counsel in front of a jury, they should definitely be ready to handle interactions with the mediator.