Lawyers Are From Mars, Clients Are From Venus – And Mediators Can Help Communicate in Space
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Legal clients often experience intense stress in the litigation process. Professor Dwight Golann noted that parties often grieve over significant feelings of loss in negotiation, which can prevent them from negotiating effectively and reaching agreements. Any party – including defendants and plaintiffs – may have these strong reactions in any kind of case.
A recent study, based on 50 focus groups of new lawyers and supervisors of new lawyers, found that new lawyers are “woefully unprepared” to work with clients. The study, by Professor Deborah Jones Merritt and Institute for the Advancement of the American Legal System Research Director Logan Cornett, provided the basis for their report, Building a Better Bar: The Twelve Building Blocks of Minimum Competence. The report states:
New lawyers described three clusters of abilities that they needed to work effectively with clients:
- The ability to gain a client’s trust, gather relevant facts, and identify the client’s goals.
- The ability to communicate regularly with clients, convey information and options in terms that a client can understand, and help the client choose a strategy.
- The ability to manage client expectations, break bad news, and cope with difficult clients.
Mediators can help lawyers and clients improve their communication with each other. If mediators have separate conversations with each side before convening a mediation, they can discuss elements of the bottom line, particularly the parties’ intangible interests. Except at the very end of a mediation, it’s generally better for mediators not to ask each side for its ultimate bottom line because these determinations change during mediation.
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