Welcome back to our Mediation Minute, where today’s subject is: the client who thinks they cannot lose their case. These situations are the hardest for us as mediators. How do you work with someone who doesn’t see risk? Because if they don’t see risk, they won’t compromise, then your case won’t settle. So how do we work through that?
The first thing is, honestly, that we struggle with that. It is the single hardest question. So, we would love your thoughts to put in the comments. Here is what we’ve tried and had success with, but it’s not a guarantee.
1. What is their preparation coming in?
Have they had their expectations set realistically? What this means, is: meet with your client in advance, please! Or, at least tell their mediator in advance that their expectations are unrealistic, and that you need help setting them realistically, or helping them to see the risk in the case.
2. Working through the risk-benefit analysis of the case
What is it going to cost them in attorney’s fees? The problem is: if they’re on a contingency fee, then they don’t have that risk. And if there’s a prevailing party attorney’s fees statute or contract, then they just think they’ll get the other side to pay for it. So, working through that can be a serious challenge. The problem is this: a lot of times, those people don’t think about their case until the very last minute.
3. Remediate right before trial
So, in cases where your client hasn’t thought about the case enough, we always recommend mediating, or remediating, right before trial. Because until their back is to the wall, they’re going to stick their head in the sand, do the ostrich, and not budge. But when they hit that point, then they’re finally open to compromise.
This is a common issue we find with our clients and their clients. If you’ve faced this scenario before, try using some of these tips in your next case, and let us know how it goes. Also, if you have your own strategies that work when dealing with these types of situations, then share what has worked for you or your clients!
And, as always, if you think your clients could benefit from a results-driven mediator, then contact us at Breakthrough Mediation.
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