copyright 2008 Kaufer Mediation, All Rights Reserved

The Mediation Moment

THIS WEEK'S MOMENT . . . Trust your instincts without losing business

How many of you have not lived the case in which you had that nagging "this isn't good" feeling about from the very moment it walked in the door, yet despite your intuition, you accepted the challenge? How many times was your intuition right? I know it's antithetical to suggest to attorneys to send away prospective clients, but there are those cases where you and your potential clients can benefit far more by doing just that, rather than your handling the dispute through litigation.

As a mediator, I frequently see counsel, both plaintiff and defense, who wish they hadn't gotten involved and are hoping for an immediate resolution not only for the sake of their clients, but for themselves. This almost always happens in cases where counsel is representing a family member or friend. It also happens frequently in those cases where insurance is not available to provide a defense or compensate for a wrong, and the client doesn't have the ability to fund litigation or the defendant doesn't have the assets to make "going the distance" a worthwhile proposition.

In cases such as these, consider recommending that the parties attempt to engage in mediation without counsel first. Often your clients can get a better result for themselves in working with a mediator and another party directly. At this pre-litigation stage, they can save the money they would have spent on attorney's fees and where necessary, put some of it toward resolving the dispute, particularly where attorney's fees will be an issue for one or both of the parties. Even when parties mediate without counsel, it is customary for many mediators to recommend or even require, in some instances, that all parties engage counsel to review and approve any agreement reached. This will provide you with another opportunity to serve your client.

If you are unable or uncomfortable in making this kind of recommendation to your prospective clients, another option is to offer representation on a limited basis, for the purpose of representing them in mediation only. In doing so, you will be compensated for your time and professional guidance, without the attendant risks of taking on the full case. During the mediation process, it is likely that you will learn significant information about the case and the personalities involved, that you might otherwise have to wade through the discovery process to learn. Although all information learned in mediation is subject to confidentiality, if the dispute doesn't resolve at this early stage, it can be of great value to you in evaluating whether you wish to go further in your representation of the client in this particular dispute.

This is a service business. Although litigation is what your clients often have in mind when they first approach you, it's likely that they don't understand their options. One of the keys to your success will always be in guiding your clients to the dispute resolution process that will best serve all of their needs, without losing sight of your own.


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