Who should do the heavy lifting?

"I need you to speak to my client directly and tell her that she's not going to get what she wants in this case."

"We need a reality check."

"I'm having client control issues."

"My client is too emotional and can't see the facts."

Mediators hear these pleas for help, or variations of them, on a routine basis. No matter how phrased, they all have one thing in common: an effort to shift the burden of dealing with unrealized expectations from lawyer to mediator. At a deeper level, the unrealized expectations themselves represent one of the most common and most significant challenges to resolving disputes at mediation.

What is the genesis of unrealized expectations in the context of mediation? My experience is that unrealized expectations develop from: (1) A misunderstanding of the function of the civil justice system; (2) a misunderstanding of what results are obtainable through the process of litigation or arbitration; and (3) overpromising on the part of lawyers.

For decades I have thought that the labels of "Civil Justice" or "System of Justice" represent a lofty and ambitious ideal but the description fails to match the reality. The reality is that the system of civil justice is expensive, time-consuming, cumbersome and, at the end, really about this: Parties cannot reach a resolution by themselves so they ask a third party to make a decision for them. Perhaps we should call it: "The system to provide a decision when you can't reach a decision on your own." Although that label is certainly less elegant than "the system of justice," maybe it's more accurate.

What does the name of the system have to do with unrealized expectations? Simply this: If you grow up believing that the idealized label ("justice system") is the reality, you are likely to have a basic misunderstanding of the system in which you find yourself. You will be looking for justice instead of understanding that the best you can expect is finality -- which might be "just" or might be a decision by a third party based on intangible factors having little or nothing to do with the merits of the case. It's usually quite easy to determine if a party is anchored to the idealized view of the system because that party will typically use the word "justice" during the mediation, saying something like: "I know that I have a just case and I will get justice in court." Or: "I want 12 jurors to see this because I know that I will get justice." Interestingly, and perhaps tellingly, it's extremely rare to hear someone say: "I'm bringing this lawsuit because I just want a result."

The problem is that while we are all strive for justice, the reality is that many cases are decided on the basis of other factors, including money (who can spend more), lawyering (who has the more effective lawyer), the luck of the draw on the judge or arbitrator, and intangibles such as looks, charm, verbal skills, race, gender, ethnicity and other factors that seem to be determinative even though lady justice with that scarf over her eyes is supposed to be blind to all of them. It is the clash between the idealized and real-world versions of the system that creates unrealized expectations. For a person who deeply believes that a trial is conducted in a sanctuary of justice and that justice is the essential task of judge and jury, to be told that the outcome of the case may depend on entirely different factors is a bitter pill indeed and one that is exceptionally difficult to swallow. In such a case, a presentation of this reality by either the lawyer or the mediator, or both, represents a challenge to an entire belief system. Changing a belief system in the short span of a mediation is a difficult task.

Related is the second cause of unrealized expectations: not understanding what results are actually obtainable through litigation and arbitration. Experienced lawyers know that at a basic level there are limits on what the system provides. The system can provide an award of damages. But the damages may, or may not, be collectible. The system can provide various orders, such as injunctions, to make people stop doing certain things or start doing other things. These orders may, or may not, be effective or enforceable. But many litigants, through lack of experience or otherwise, do not understand these limitations. They expect that a judgment or arbitration award will accomplish many different things. For example, parties in a mediation often say: "I want to make sure that this defendant never does this to anyone else." This statement reflects the belief that the judgment or arbitration award will somehow "teach the defendant a lesson," or somehow magically change his or her behavior, for the betterment of society as a whole. My own experience is that adverse judgments rarely, in fact almost never, change anyone's behavior. People who behave badly by lying, defrauding others, not living up to promises, doing work in an incompetent or careless manner or acting in other reckless or reprehensible ways typically just keep on doing the same thing. It's a type of civil (as opposed to criminal) recidivism.

The obverse of that coin is what will happen to the winning party. Many plaintiffs believe that winning at trial or at arbitration is like winning the lottery. The first misconception is that unlike a lottery ticket you can't cash in a judgment or arbitration award. You might, instead, spend years trying to collect it. The second misconception (and this one is apparently shared by actual lottery winners) is that winning in court will solve all your problems in life. This is rarely the case. Sometimes you get money, although usually not everything that you are asking for. Sometimes you get very little. Sometimes most of the money goes to the lawyers and you wonder why you spent all the time and effort for very little return.

The third cause of unrealized expectations, lawyer overpromising, is directly related to the first two issues. Lawyers often add fuel to the fire of unrealistic expectations in various ways. Sometimes by promoting the concept of justice (instead of results). Sometimes by promoting the concept of "lets teach them a lesson" or "you are going to get so much money that your biggest problem is going to be how to spend it." And, very often, by simply focusing on the "good" parts of the case, while ignoring or minimizing the "bad" parts of the case, which leads the client to believe that they case is stronger than it actually is. Sometimes the lawyer overpromises due to inexperience. For example, a lawyer who is inexperienced in construction disputes may not understand the severe limits of construction insurance and may overpromise to a client that he or she will be able to collect from a contractor when in fact there is almost no chance of that happening. Or, in a real estate dispute, the lawyer may not understand that the claim against the broker or agent must be tried in court, separately from the arbitration between buyer and seller, and that no attorneys' fees are recoverable. Or that expensive experts will be required. Or, at an even more basic level, by giving a client a likely settlement range that is simply disconnected from reality.

What happens as a result? The party arrives at mediation with an unrealistic view of the system and a similarly unrealistic view of the value of the case due to lawyer overpromising. Shortly into the mediation, after a "blunt" but diplomatic discussion with the mediator about certain realities, the unrealized expectations begin to rear their ugly head. And now the lawyer turns to the mediator for help. "Help me make my client understand."

It is, of course, part of the mediator's task to deal with unrealized expectations. Very few cases ever settle for anything like the opening demands and opening offers, which means that when a case settles the expectations of both the plaintiff and the defendant are, by definition, unmet. Mediators are thus accustomed to dealing with unmet expectations -- it comes with the territory. Having said that, dealing with unrealized expectations for the first time in mediation can and should be avoided. And there are many steps that you, as counsel, can take to avoid having this issue derail a settlement.

First, be cognizant of the powerful impact of expectations and strive from the start of your representation to keep expectations in a realistic range. Part of keeping expectations real is understanding the client's expectations in the first place. I always start mediations by asking the lawyers and parties a simple question: "What's your goal today?" I recommend that you ask your client that same question at the outset of your representation -- "What's your goal in this case?" If your client's response is something like: "I want to teach him a lesson," that gives you a perfect opportunity to explain why that goal may not be realistic. Similarly, if the stated goal is "I want to get rich and retire from this case," it's a good opportunity to explain why that probably won't happen. And, if the goal is "I want my day in court because I want justice," that's a great chance for you to explain how elusive the concept of justice is in the real world and how much time, energy and money it takes just to search for justice, let alone obtain it. Many lawyers are worried that having these conversations may turn away clients -- they worry that the client may perceive them as "weak," or as someone who doesn't believe in the case. I believe that it's important to be honest from the start -- if you are going to disappoint that client, do it at the start, not the end. I believe that clients will respect you more if they perceive you as an honest broker of risk -- someone who is giving them all the facts and allowing them to make an informed decision. I believe that this makes you stronger, not weaker.

Second, for exactly the reasons above, be intellectually honest with yourself about the case. All of us have the human tendency to attach ourselves to facts and arguments that support our position and to resist contrary facts and arguments (I have written about this form of confirmation bias and its impact on decision making in many previous articles). But part of preparing to resolve cases is being open to the reality that in every case there are contrary facts and arguments and those contrary facts and arguments might just resonate with a trier of fact, or at least, weaken your case.

Third, be honest with your client before the mediation. It is unrealistic to expect that you can have an effective mediation when you tell the client only one version of the story: "We have a GREAT case," and then show up at mediation and ask the mediator to tell the client for the first time, "Well, you have some good parts to your case, but there are some real problems, and let's talk about them." It is vitally important to prepare the client for this discussion before the mediation. This accomplishes four things: (1) it's a "reality check" (2) it gives you credibility (3) it gives the mediator credibility and (4) it makes the mediation more efficient.

Fourth, don't expect the mediator to do all the heavy lifting. Clients listen to their lawyers first and mediators second. If you want to re-set expectations, you should expect that this will be a joint effort between you and the mediator. You should be prepared to say: "We need to listen to this. We hired this mediator because he or she is experienced in these kinds of cases, and let's listen to what is being said." Or, simply say, "I have to agree with what the mediator is saying. This is a problem and we have to face it."

Understanding your client's expectations, learning more about your client's perceptions of the legal system and your client's goals and preparing for a discussion about realities are the keys to dealing with the difficult issue of unrealized expectations and good preparation can lead to better settlements and more satisfied clients. 