One of the most common things that can break down an otherwise successful mediation is when the client expects one thing and finds that those expectations can never be fulfilled.  The cause of this problem is all too often left at the doorstep of the attorney.  Sometimes, it is the implied promise that has been made at the onset of litigation.  Other times it is the lack of discussion addressing the value of the case.  Regardless of the reason, the outcome is often the same:  The attorney has to compromise his fee or make promises to the client to enable a settlement.

It is incumbent upon all attorneys to provide both rational and emotional reasons for why the client should pursue a particular course of action.  Although the client may have inherent expectations based upon past experience, acquaintances’ anecdotes of huge victories, or simply an unexplained reason, it is the attorney’s job to establish reasonable goals. 

A seller of a home would not base his or her decision as to the sales price based upon anecdotal evidence from friends’ prior sales many years ago.  Instead, the seller relies upon the broker and comparable sales to establish a reasonable expectation for a sales price. 

 In the same vein, the client, like a seller, must be given appropriate advice as to the “comps” and the market value of the case early in the litigation process and throughout the mediation.  Only by doing so, will the client be fully able to understand when the attorney has “pulled a rabbit out of the hat.” 

 Establishing reasonable expectations generates several benefits.  First, it helps to make sure that the client’s potentially unrealistic expectations don’t hamper negotiations.   Second, it helps the client to understand when he or she is getting a good deal.  Third, it helps the client to become happy with the outcome and the representation of the client.

 There are several ways to help set realistic expectations.  First, establish trust and rapport.  There is no substitute for the client’s trust in you.  Don’t assume that the mere fact that the client has hired you is grounds for trust.   You have to you’re your client’s trust.  Second, early in the litigation process explain the things that will occur in litigation to the client.  Make sure the client sees that your predictions about the litigation process were correct. This will enable the client to understand that you are knowledgeable about your field.  It is human nature to trust what you see and feel rather than what you are told.   Instead of you saying anything, you will let the client’s own observations persuade him that you are “the” authority on the subject matter.  Third, don’t just tell the likely outcome; explain the reason why the likely outcome could occur and what factors could change the predicted outcome.  This is necessary because opinions are like houses.  They are only as good as the foundation that supports them. 

 Fourth, provide the explanation and the likely outcome well before the mediation, and before negotiations have started.  By doing so, you will have established that your recommendations are not based upon a desire or bias to get the case settled, but instead upon independent neutral assessments. 

 Finally, don’t just explain one outcome, but explain several alternative outcomes, and the chances of each.  As we all know, if you tried the case ten times, there would be ten different results.  Explain those variable results to the client so that he or she can see the good, bad, and the ugly.  Only when the client fully understands the nature of potential outcomes, can he or she completely appreciate the good job that you are doing.

 Often times, the difference between a client perceiving a result as good versus bad is based upon the expectation that was created in the first place.  By helping to create reasonable expectations, you will have gone a long way to creating happy clients.

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