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Most mediators insist that clients be present at the mediation location to caucus with their counsel and make decisions about proposals put on the table by attorneys for opposing parties. After an initial session with both counsel and parties present, mediators generally allot a caucus room to each side and meet only with counsel, who then caucus with their clients to arrive at proposals and evaluate opponents’ counter-proposal. There’s no substitute for on-the-spot consultation with the person whose time, money and peace of mind are on the line when the topic for discussion is a resolution of claims short of trial. But does a lawyer want a mediator actually to talk to the client? And does a mediator actually want to do it? There’s something visceral in most lawyers that rebels against the idea of his client getting explanations from someone else in the course of any kind of proceeding. Generally, the lawyer wants to be the conduit for information and the source of strategy and guidance. Some lawyers absolutely refuse to select mediators who make it a practice to talk to the client, especially if the mediator insists on talking to the client outside of the lawyer’s presence. What’s at stake is the counseling relationship — that professional link in which a lawyer devotes skill and wisdom to the client’s position, and the client puts trust in the lawyer to be canny and adroit in achieving the best possible outcome. At a mediation, a lawyer, who is, after all, going to have to try the case if the mediation doesn’t result in settlement, usually wants the client to ask, “What do you think?” and to follow the advice given. When a mediator talks to a client, the lawyer can find herself or himself suddenly in the middle, with the client countering the lawyer’s advice with the statements the mediator has made. Instead of the client and lawyer planning their moves together, the lawyer whose client has been jawboned by a mediator can feel the mediator’s intervention as inserting a wedge in the lawyer-client relationship. Maladroit direct discussion between client and mediator may even put the lawyer on the defensive about the preparation of the case. If the mediator has misstated the law or omitted some salient facts, the lawyer is faced with the need to point out the mediator’s error in a context that can sound plaintively like, “listen to me, not to that guy.” And if the lawyer gives in to the urge to say, “That guy doesn’t know what he’s talking about,” then why, the client has to wonder, has the lawyer selected this mediator in the first place? Representing a client in a mediation sometimes requires lawyers to do a bit of manipulation to get the client to come to accept a particular resolution. The lawyer knows, or should know, the client’s manner of approaching problems and style of coming to a decision. A blunderbuss mediator who talks to the client directly can interfere with a lawyer’s ability to phase the proceeding in a manner that will allow the client to accept a realistic compromise. Sometimes, though, lawyers are desperate to have a mediator talk to the client. I recall a case in which two owners of small businesses had spent whopping amounts on pleadings and had suddenly realized that the amount spent out of spite and pique was starting to exceed the amount at issue in the case. The lawyers couldn’t point out that settlement was an economic necessity without getting into recriminations from clients who forgot that they had been all in favor of the expensive motion warfare. At the lawyers’ request in that case, it seemed reasonable to talk to both clients directly, without the lawyers, to lay out the economics of the situation and to urge the clients to make a rational decision about the wisdom of continuing the dispute. It turned out that the businessmen were actually willing to resume doing business with each other and were happy to salvage their relationship by deciding to agree that it had really been the lawyers who were so adversarial all along. On some occasions, lawyers want the mediator to talk to the client to confirm the reality of the points the lawyer has been trying to make about weaknesses in the case. It can be easier for the client to hear the bad news from a neutral source, and more convincing to hear it directly than just to be told by counsel that the mediator has agreed with counsel’s analysis. Should mediators insist on talking directly to clients? In my opinion, no. It should happen only if counsel for a party thinks it’s a good idea given the dynamics of the particular dispute. The mediator should find out why the lawyer thinks a direct conversation with the client would be helpful and confine his or her remarks to the subject that counsel has said is the reason for trying this approach. On occasion, clients will express a desire to talk directly to the mediator. Most often, they want to ask direct questions to check whether the mediator has the same view of the actual merits of the client’s position and the fairness of the settlement. This is a truly delicate situation, as it often means that the client has lost confidence in the lawyer’s advice. In my view, a mediator should participate in this way only if the lawyer signals that it’s a good idea, and only if the mediator is very sure indeed that truthful answers won’t do major damage to the attorney-client relationship or to the ultimate prospects for a fair settlement. Judge Beverly Hodgson manages civil cases on the complex litigation docket on the Connecticut Superior Court at Waterbury. She is the co-author of “Alternate Dispute Resolution in Connecticut’s Courts.” Her opinions are her own, and she does not speak for the judicial branch. This article originally appeared in The Connecticut Law Tribune , a law.com affiliate based in Hartford, Conn. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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