Tips from Mediators
Emotions can dominate reason. How should a young lawyer deal with a client’s emotions that interfere with the path to a suitable resolution?
Emotions are a very real part of the litigation process. When I was practising, I had to continually remind myself how stressful litigation is for the parties to an action. It is a new and frightening experience for most litigants (and also for some lawyers), and it can cause many emotional ups and downs.
As counsel, your job is to assist your client in making the best decisions possible. In doing so, you must work with the client's emotions and, in some cases, fragile condition.
When emotions obscure the client’s ability to seize upon a reasonable settlement at mediation, you have a few options.
- You may be able to secure the assistance from the mediator to persuade the client that the settlement is fair and reasonable and, therefore, in their best interest. Often, an emotional client will benefit from another voice of reason reinforcing the advice that they have already received from counsel. Most mediators bring with them many years of experience in litigation and are used to dealing with clients in stressful situations.
- You may take as much time with your client as you need to alleviate the concerns (and emotions) and secure a reasonable settlement. You should never be worried about the overly emotional client delaying the mediation process. Frankly, I am of the view that an extra hour or two is always time well spent if the action is settled at the end of the mediation.
- You may decide to take a break. Litigation is not a race. Rather, it requires all the ducks being in a row before a settlement can be achieved. If your client is simply too emotional to provide you the necessary settlement instructions at mediation, you must adjourn the mediation so you can work to alleviate the concerns and emotions in private. You may have to involve the client’s family members, senior executives, or whomever it takes to get at the root of the concerns and facilitate a level of comfort with the settlement.
Remember, it is very dangerous to force a client into a settlement. Those are the clients who may complain to the Law Society, if and when they experience second thoughts.
Hopefully, in his preparation for the mediation, the young lawyer will have anticipated that the client’s emotions might become an issue, and will have spent time trying to ensure that the client understands that emotional responses are not always of benefit, although they can be in certain circumstances. Clients must understand that, if emotions come into play, they must still be able to make decisions based on advice from their lawyer and the offers made at the mediation.
If emotions arise during the course of the mediation, the lawyer should separate the client from the other parties for an opportunity to calm down. Also, if the client is advised that the emotional reactions will cause the mediation to break down, the client may bring the emotions under control.