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Learning in Advance if the Client Needs to Hear It from the Neutral

September 28, 2013

Private conversations with counsel, before the commencement of the mediation session, can provide the mediator with valuable insight for the conduct of the mediation.

Consequently, it is worth the effort of coming to the mediation early and/or having the conversation by telephone even earlier.

It is my practice as mediator to do both: to have a private telephone conversation with counsel beforehand AND to arrive early.

Why?  Because much can be learned in a short time that will help to move the process forward.

So I recommend this to the lawyers as well:  Make time for the phone call; come early. It will help your client and the process.

In these private conversations with counsel, among many other questions I usually ask the lawyers at least two things:

(1) What is it that I should know that you didn’t want to write about in your mediation statement? And…

(2) What is it I can do to help you help your client?

Lawyers should not shy away from giving candid responses, and most do not, and the kernels of insight that result help everyone ultimately.

Sometimes I hear about the emotional content of the dispute and we discuss how we will navigate the emotional storm of the conflict.

There, among other things, we can weigh whether and how to have joint sessions, if at all.

Sometimes I hear the lawyer say that the client just won’t listen regarding the realities of the risk the client faces.


Maybe it’s not the senior partner in the law firm who’s handling the file and the client does not have the same level of confidence as might otherwise be available.

Or, as is more usual, the client is so wrapped up in the unrealistic certainty of prevailing or so self-convinced that there is no problem with the case (every case has problems) that the client cannot see any other possibility.

In these instances, I often learn that the client will need “to hear it from the Neutral.”

From some of the finest mediation trainers in Los Angeles (Lee Jay Berman and Peter Robinson come to mind among many others), I learned long ago that sometimes our role as mediator is to be “the agent of reality.”

But I won’t “go there” with the disputant unless the lawyer and I have first discussed whether I should do so and until I have the instruction or permission to do so.

So the pre-mediation conversation with counsel is critical in deciding what the client or lawyer will need in the mediation, and how to proceed during the session, in order to get the job done.


David I. Karp is a full time mediator of real estate and business disputes in Southern California.  His business website is at .  He apologizes for ads attached to this blog by; they are not from him.


From → Mediation

  1. Great advice, David. For both mediators and litigators. Well said.

    Lee Jay

    • Thank you, Lee Jay. I’m pleased to put into practice, and to suggest to others, those valuable lessons I learned from you and other great trainers!

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