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Mediating with the Unreasonable

Updated: May 1, 2019

By Christina L. Scott, J.D.

Practicing attorneys know that sometimes clients will have unrealistic and unreasonable ideas about what they can settle for in a lawsuit.  These are the people that think because they’ve been injured or wronged in some way, they will get exactly what they want.  After all, that’s what happened on the last episode of “Suits”!  Dealing with them in mediation can be a challenge when they refuse to listen to you about their case. Here are a few tips that can help you manage the unreasonableness:

1) Be the “Counselor” for the Client

Your client will continue to live in a fantasy world until you give them a reason to come out.  Changing someone’s views takes time, and it’s a good idea to start in advance of the mediation.  Walk your client through a realistic and honest evaluation of the case.  Be sure to highlight the strong points and the risk factors.  What are the pros and cons from your viewpoint?  Is there significant information missing or gaps in the facts?  Is there thorough documentation of wage losses?  Is there a demonstrated need for long term alimony if they have worked full-time for the last several years? Is there a strong case for custody if the parent has constantly defaulted on their parenting time?  Have a very real and candid conversation with your client and don’t be afraid to be the “bad guy.”  Your client desperately needs your counsel.

2) Finish all Discovery

Gathering all important documents, medical records, bills, financial statements, property appraisals, etc. is essential to helping your client see reality. Your client will have a tough time believing they deserve $500,000 when their medical specials are only $20,000!  If appraisals are completed, your client will also realize that 50% of only $3,000 in equity might not be worth going to trial over.  Completed discovery prior to mediation can help deflate your client’s “creative theories” about the financials. 

3) Be Upfront with the Mediator

If you’re having challenges and believe that your client will not be realistic during mediation, let me know before the mediation starts.  Sometimes these “attorney caucuses” can be extremely helpful.  My focus is always on settlement and moving forward.  So, if you already know the road blocks and pitfalls, let me know them as well so that mediation can be more productive.  

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