Clients with attorneys make for interesting situations in negotiations. Who’s in control? Who’s driving the strategy? Who determines what’s in the “best interest of the client”? Who’s responsible for preparation of client positions?  Who makes the decisions? One answer to the above questions is it depends. It become messy, ambiguous, and downright frustrating when the truth becomes known when a client says “whatever you say” to their attorney. Sometimes that happens because of a lack of sophistication of a client, at other times emotions overcome a client, at other times it is because iffy expectations are not only created but fostered. Of course there are times when a clients view of “whatever you say” is the right response because this forces the other side to either capitulate or make further concessions. For a mediator this makes for difficult choices and even judgments.

For example in an agreement requiring ADR the first step is mediation involving somewhat complex legal issues boils down to money. The complaining attorney and their client comes in without a figure because they have “not yet done enough discovery”. Why agree to mediation? Time is taken to compute a figure. The calculation is flawed. Changes are made to underlying assumptions to get the number to the same figure. The number becomes an unwavering position and the range between the money asked for, versus offered, and is too much of a gap to bridge between the parties. Impasse is reached and what’s heard from the client is, “whatever you say”.

Best interest of the client? The legal issues involved are overwhelming for the client to understand, but money on the table versus the time and cost of going forward? You almost know the issue will be settled on the court house steps. Happy Thanksgiving! Of course this is the perfect place for “it depends”. Mediator strategies in situations like this are part of an art in closing a deal but not every mediator can do that. Mediation gives clients choice and it's up to them to utilize it or give it up.