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 or so of the mediation process. Tell your client that they can let rip during this period. If your client wants to thump the table, or walk out, that is fine. But obviously, tell your client that if he is going to walk out, he (the walkers are usually men) should keep his mobile telephone switched on, because you going to call him back in.

But also tell your client that there is likely to be a time – usually late in the day – when it is time to give ground. Such grounds should be given grudgingly, and with as much complaint as can be mustered. More of that in a moment.

In the meantime, how should your client be guided in his relationship with the mediator? You should explain that the mediator is not his friend. The mediator’s job is to try to undermine your client in every way possible and, if your mediator has a decent track record he might well – as subtly and unobtrusively as possible – be determined to destroy your client’s confidence in your legal team. This does not mean that you should encourage your client to be aggressive towards the mediator.  Instead, encourage your client to treat the mediator with an air of exasperated disappointment. The most successful parties in the mediation act as if the mediator is their servant, the mediator doing his or her incompetent best to persuade the other party to give ground.

Above all, explain to the client that they should not feel in the slightest bit bound to follow the mediator’s steer as to how the negotiations should go. If you have considerable experience as a lawyer in mediations, you should be able to persuade your client to listen to you, not the mediator.

Mediators sometimes ask for meetings between the clients themselves, without the lawyers. Should you advise that this is OK? It depends on the dominance thing. If your client is more dominant than the other client, then it should be fine. But not if the other client is more dominant than yours.

Sometimes (well, usually) it pays to play “Good cop, bad cop”. As the lawyer, you are the good cop, and your client is the bad cop. That means that you should warn your client that you might well, in causus session with the mediator, be looking as though you are hosing his expectations down.  In other words, you as the lawyer, might be advising the client in front of the mediator of the need to give some ground. The ground that you will give in these circumstances is ground that the client will have to give in any event. It is far more in your client’s interest to give this ground reluctantly, on the basis of legal advice about costs and delay, then willingly and commercially. If you warn your client that that is what you are going to do, and get your client’s agreement in advance, that should negate the risk of your client thinking that you are weakening his position.

Depending on the client, it may be sensible to give advice – perhaps very firm advice, that your client should not make any offer of settlement without prior discussion with you. That advice is especially important, of course, for clients have not been through mediation before. It is much less necessary with an experienced and skilful client.

But there is perhaps a “catch all” here. Sometimes, proceedings in a mediation descend into a blazing row. This process is sometimes known to the bar as a “bloodletting” and the psychiatrists as “venting”.   Whatever you call it, here is the thing, at the end of that process, there is typically a period which may last for as much as twenty minutes during which the parties are particularly amenable to apology and compromise. You might have seen it in a children’s playground. The children have a fight and then, a few minutes later are sharing each other’s biscuits. Perhaps surprisingly, the same psychology usually manifests itself in commercial disputes when these descend into an all-out row.  And so, unless you think it is in your client’s interests to settle on any terms, or unless you are confident that your client is an out-and-out psychopath, it might be prudent to find a good reason to keep your client away from the negotiating table for at least twenty minutes after the end of a bloodletting. That said, if you are inherently a risk-taker, and if you think that your lay opponent scores more highly in agreeableness than your client as one of the “big five” personality traits, you might let that die roll.

There are often periods in mediations when not much is happening. The mediator might be talking to the other party. During these periods, your client might be getting bored and edgy. Explain that, however tedious and unproductive these periods might be, they are but nothing compared with what happens in a trial. If the mediator has given you an exercise to perform during this period which is calculated to undermine your client’s case, instead talk to your client about music, or football, or anything which might usefully pass the time.

Hopefully, your client has full confidence in you. But if not (I am guessing here, never having been there) insist that your client reveals nothing of any doubt in your advice. I have (not very often) seen that in opponents. It is the kiss of death.

Towards the end, when offers and counteroffers frog-hop towards a compromise, make sure that your client shows absolutely no joy at all. Mediators sometimes say that the sign of a successful mediation is that each side is, at the end, equally unhappy with the result. It is not only discourteous to display any happiness about an unexpectedly good result, but it also risks the success of the final conclusion of negotiations.

After the deal is done, the conventional wisdom is that nobody goes home until settlement agreement is signed. This conventional wisdom is absolutely right. Tell your client he cannot leave, but must stay to sign the legal document. All too often, one party or the other will then come up with some balls-achingly long pro forma which takes an hour or so to get agreed and signed. Under no circumstances whatsoever should any alcohol be consumed during this period.

There may well be a bit of client management be done after the deal is signed. For good reason, the client is likely to have been pushing for a fairly ambitious result, and almost always, the final result is less good than that. That does not mean that the mediation result should be treated as disappointing. It is merely a paradox which attends every successful mediation campaign. A good time to explain this to the client is usually after the document is signed, whilst consuming some alcohol. Compare the final result, not with what you are pitching for beginning of the mediation process, but with where the client might well be but for the settlement.

Mediation is not just a commercial process. It is a psychological game. As a lawyer, you are the manager, and your client is your team.