Preparing a client, or a witness, for a hearing is one thing. I might come to that later. But in any event, preparing a client for a mediation is something quite different.
The first thing to say is that the dynamic of a mediation is completely different from that of a court case or an arbitration. In a court case or an arbitration, the object of the exercise includes persuading the tribunal of the rightness, and of the reasonableness, of your position. Being unreasonable or difficult goes down badly. Conversely, a mediator is not much if at all concerned with doing justice, but merely in engineering a compromise deal, if that is at all possible. Within some very limits, it pays to be unreasonable. The mediator has no power at all to sanction an unreasonable party. And the more unreasonable the party is, the further the mediator is likely to have to reach in order to find middle ground.
There are limits to this, of course. If your client’s position is too unreasonable, and too inflexible, the mediation will fail. But the key to this is usually not in the initial reasonableness, but in the ultimate flexibility. There is merit in the old adage about mediation: “Give little and give late”.
And so it is usually a bad idea to try to rein in your client for the first three-quarters Continue reading