In some instances, managing a client’s expectations may be more difficult than negotiating with the other side. Litigation is stressful and clients respond to stress differently. Most have not been cross-examined before. Feelings of loss and frustration are common – especially in serious injury and death cases.
To help clients cope, lawyers should listen and communicate in ways that earn their client’s trust and confidence. Counsel should make every effort to accurately understand their client’s goals and possess a knack for explaining options in terms that are easy to understand. Difficult personalities must be managed with patience and sensitivity. Status updates must be timely conveyed.
Of course, the ultimate outcome of a case matters, but clients also care about how they cross the finish line. Poor communication or a lack of empathy and understanding by counsel can dilute hard-fought efforts that otherwise produce good financial results.
Lawyers can improve client communication with active and attentive listening and by validating emotions and asking good questions. As I’ve written in this column before, people need to feel heard. All of us feel frustrated and angry when we think we are overlooked, ignored, or unimportant.
But when clients are given focused attention so that they feel understood and witnessed, they are more likely to open up to someone else’s assessment (counsel’s assessment, ideally) of the legal and practical challenges they face, how much it will cost (including the tangible and intangible costs), and the potential outcomes in court or mediation.
Mediators can help. Most clients want to tell the mediator what’s important to them. Clients may want to hold someone accountable or feel vindicated, answers to factual questions, economic recovery or reasonable payment terms, legacy remembrances, repair business or family relationships, or defend their reputation.
Some may be concerned about how long the legal system will take before the merits of the case are decided. Litigation may divert time and energy from an institutional client’s directors, executives and other employees. Mediators build trust and confidence by listening to and reflecting back what’s important to parties.
In addition to bridging potential communication gaps between clients and counsel, mediators endeavor to bridge gaps between opposing parties. This is where the experience of the mediator matters because the case type and the personalities involved may influence what choices the mediator makes during the process.
Sometimes the mediator may push for a direct conversation because the parties have plenty of shared interests and the attorneys have a good working relationship. On the other hand, the mediator may keep the parties and counsel separate because the entire dynamic is toxic and few, if any, shared interests exist.
Regardless of how communication unfolds, mediators who ask good questions can help the parties make better decisions – especially if parties have some appreciation for how their own cognitive biases may be clouding their understanding of the big picture and what solutions are possible.
It should go without saying but in my view, attorneys should consider how they communicate with opposing counsel before mediation. Someday they may find themselves mediating another case with that same lawyer.
Of course, lawyers know that no one is compelled to do anything in mediation. But that makes the point: for counsel and their clients to be successful at the bargaining table, the other side has to be willing to comply with what you want.
Everyone has a story about how opposing counsel was inefficient and disrespectful. Actions grow into reputations. Reciprocation, in the moment and over time, is a social norm.
Of course, tough cases, difficult clients and ineffective communication will persist. Some lawyers are not interested in anything other than hard-fought dollars that exceed their goals. Some clients will not have an open mind about how they evaluate their case, perhaps due to input they get from family and friends or an institution’s internal settlement committee, outside of counsel’s influence. Some mediators maintain narrow views about what’s “really at issue” in a case and overlook solutions that are practical and satisfying to the parties.
But when clients feel that their lawyers really want to understand what matters to them and why, they are less likely to develop frustration and disappointment in the first place.
Jeff Trueman is a commercial mediator. He can be reached at firstname.lastname@example.org