Taking a matter to mediation on behalf of a client often requires substantial planning and preparation. In many jurisdictions, courts may order parties to go to mediation in an effort to reduce congestion on the docket or to try to make parties come together in hopes that they can resolve their differences.

Because the act of mediation often requires the parties to proceed in good faith in an effort to discuss their differences or reach settlement, questions can arise regarding what the duty of good faith requires of litigants and their lawyers. How can lawyers help ensure a productive mediation to their client’s benefit, even if it does not ultimately settle?

Here are some tips for how to get to a good result at mediation.

Discuss Goals and Strategy

At the outset, consider working with the client to define what a “good result” at mediation even looks like. For some, the goal may be a final settlement. For others, the goal may be to make their position clear to the other side if the parties have been talking past each other. Or it may be an opportunity to exchange evidence so that a party can more fully appreciate the risks.

Many lawyers will meet with the client ahead of time to discuss the strengths and merits of the case, the reasonable settlement value and some strategy for how to manage the mediation. Even if lawyer and client will be attending mediation in person together, having this discussion ahead of time can help keep a unified front and avoid any confusion.

Notably, there are some aspects of mediation that cannot be fully mapped out. Factors will evolve during the mediation and the lawyer may have to make judgment calls based on the client’s instructions. For example, has the client authorized the lawyer to negotiate amounts in order to get to a certain monetary settlement? Is there a baseline or other development at which lawyer and client agree they will walk away or terminate the session? Is the client open to attending another session with the mediator if the mediation is productive?

If the client is participating in the mediation, they will experience things in real time. If they are only available by phone (and the mediators and other parties agree that clients need not attend), the lawyer should discuss with the client how and when they want to be contacted about developments.

Enforcing the Client’s Goals in Good Faith

Good faith participation typically means timely complying with all pre-mediation briefing and correspondence requirements. It involves attending the mediation as anticipated, appearing on time and ensuring that all decisionmakers are present or available (either in person or by phone when permitted). It may mean confirming, in some instances, that the client representative attending the mediation has the requisite level of authority to agree to a settlement, make an offer or respond to a demand.

Lawyers are also typically required to disclose all offers and demands to their clients, so it could be evidence of a lack of good faith in mediating if a lawyer refuses to keep their client so informed. The parties should also listen to the mediator and attend the session with an open mind (even where a party may have some nonnegotiables).

Notably, a requirement to act in good faith does not mean that a party is under any obligation to settle. Settlements are supposed to be voluntary, not compelled. Where the merits of a case are strong and the client has endorsed the strategy (while being informed of risks), it is not bad faith to refuse to capitulate on a principled view supported by facts or law. Acting in good faith also does not require a party to continue a mediation that is not productive or where the parties are impossibly far apart.

Of course, lawyers still have an obligation to zealously represent their clients and pursue their clients’ lawful goals. Thus, if a party has a strong statute of limitations defense, the value of the case may be low, such as nuisance value. It does not mean that the party is refusing to participate in good faith where, for example, the party wants to avoid setting a precedent that could impact other litigation. It also is not a breach of any requirement for good faith mediation to decline to offer more than counsel’s recommended value after a thorough review of the facts and law, even if that results in no offer at all. However, it may be advisable to seek adjournment of any court ordered mediation requirements to avoid wasting the parties’ and mediators’ time if settlement is truly not possible.

Having an open mind means just that—parties should not needlessly shut down conversations or wholly refuse to engage. They should debate the merits of the case and the applicable law, identify evidence or factors that they believe are substantial, and listen to the mediator’s views.

But at the end of the day, they are not required to enter into a settlement that does not meet their clients’ goals or their recommendations under the applicable facts and law.

Reasonable Minds Can Disagree on Strategy

Under the professional judgment rule, lawyers are typically immune from allegations of legal malpractice arising from the lawyer’s well-reasoned exercise of their own judgment. Thus, it is helpful for lawyers to document the strategy or valuation of the case, including their legal and factual support for their recommendations, before mediation.

It is well-accepted that reasonable lawyers can still disagree about what approach to a mediation is best, such as whether to entertain a high/low arrangement, a bracket, a mediator’s proposal or a walk-away. Lawyers generally receive deference regarding such decisions, except to the extent that they contradict the client’s instructions, reflect bad faith, or ignore the requirements of law.

By being aware of some of these risks and goals, lawyers can help ensure a fruitful—and good faith—mediation.