Expectation Management and Mediation

“Expectation Management” is key for any party entering mediation. Lawyers representing litigants in mediation must help their clients with this valuable component, or they lose the client’s trust. Failure to adequately provide clients with realistic expectations of the process is another component of why mediation is dead.

Expectation management is as simple as it sounds. Clients entering mediation must understand the mediator is not going to massage their fragile egos, give them a tummy rub, and hand the case in full to them. As previously discussed, most mediators don’t follow their training and engage in “evaluative case analysis.” Lawyers love this, because they are used to the trenches and what jurists will rule. Mediators take the easy way out and appease the lawyers, because that’s how they get paid.

The client, or party entering mediation, doesn’t have the same view as the mediator or their counsel. Their view is that all will be resolved amicably during the mediation session, that the mediator is interested in hearing what they have to say, and will work to give them everything they want and desire outside of court.

The client’s expected scenario never happens, and they almost always end up dissatisfied with the outcome of mediation. Some lock into a “get it done” mindset, and then end up with “buyer’s remorse” after the reached agreement is a binding court order. Others will simply resent their lawyer for not getting them everything they wanted. Some might even take the unnecessary step of accusing the lawyer of malpractice.

Combat unrealistic expectations. 

If you are the litigant, know when you go to mediation you will not get everything you want. Understand you will be forced into a position where you will be told this is the best possible way to settle your case. Understand you will be under pressure from all sides to “settle” if necessary, including the so-called “mutual cheerleader,” your mediator. If you don’t like the deal, walk. Tell your lawyer you don’t like the deal, and that you want to walk. He or she might try to talk you out of it, but the final, signed mediation agreement is binding on all parties. You are only comfortable with a deal if you find it fair.

If you are a lawyer, prepare your clients for mediation. Let them know the results they want are not what they’re going to get. Start asking them about a Best Alternative To A Negotiated Agreement (BATNA) and its counterpart, the Worst (WATNA). Set a game plan for the mediation. Let the client know they might be there all day, so if there’s child care or other arrangements that must be considered those need to be dealt with before the mediation ever starts.

Unrealistic expectations and failure to manage client expectations lead to impasse. They are both reasons Mediation is Dead.

The Phone Call and Expectation Management

It’s late afternoon when the phone rings in my office. I don’t recognize the number, but I answer.

“May I please speak with Mr. Seaton?”

I identify myself.

“Hi I’m (name omitted). You probably remember me. We went to school together way back when, I wanted to see if you were available for legal services.”

I pause here to let the reader know this line is one every single fucking attorney hears on a daily basis. Sometimes it’s true, sometimes it’s a case of mistaken identity. Sometimes people just lie. Regardless, the line is an attempt to establish familiarity with the attorney, and worm into the lawyer’s good graces.

“What’s going on?” I ask.

“Well I…” This is the point where the prospective client then begins a long-winded spiraling tale about his or her woes, usually at a rapid fire pace in an attempt to get free legal advice on their issue. Phone calls like this happen all the time. Newer lawyers will stay on the phone with the prospective client and eagerly share their hard-earned knowledge. I have shit to do.

“Wait a minute,” I respond. “I want to make the best use of your time, so let me ask you a few questions.”

“Okay.”

I ask the questions I need to determine whether I take the case or not. I tell the caller my policy on consultations, discuss the fee for the consult, and ask when they’d like to schedule.

“Well, I have to talk with my spouse, and it’s almost Christmas, and…”

Again, I pause to let the reader know the Christmas line is just that. A line to signal the quoted price for my time is too high, and an appeal to emotion wrapped in a nice little phone blurb. Again, I cut the caller off. I give the caller three available dates and times, and let the caller know when they speak with their partner and decide a time I’m eager to help.

“Thank you. We’ll be in touch.”

I’ll most likely never hear from this person again.

The caller meant well. They were conditioned through a series of advertisements from bigger law firms about how the consultation would be free, how their problems would be answered with one phone call. They have a false expectation in their minds about the delivery of legal services. It’s all supposed to be free, and the person who takes the case does so because they have a boatload of money and are just in this profession for Truth, Justice, and the American Way.

Except we are people who like to get paid for our work too. We have overhead, costs, and sometimes staff to pay. Once all that is paid, we have to put food on the table for our families and pay for our home expenses. Those who can’t or don’t get paid end up finding another line of work. It’s as simple as that.

My time is valuable. So is the person who calls. That’s why I developed a system over the years of learning how to cut through the weeds, get to the point, and let the caller know I’m available when they’re ready to pay. Absent that, there’s no point in staying on the phone when others who have paid, who earned my time and attention, need my help.

When you call, be prepared for a short call. It’s not that I don’t want to hear your problems. It’s there’s only so many hours in the day, and so much work to do.