Many times, this opportunity is the lawyer's key to a higher level of client satisfaction. These clients are likely to remember the cost, the delay and the inconvenience of litigation more than their victory, which they see as incomplete. In fact, the more candidly the client is willing to enter into these deeper issues, the more heated the conversation generally becomes, at least until the emotional bile is spent. More often, it occurs, at least initially, in a private caucus, where there is less fear that candid disclosures expose your client to exploitation. For some advocates, this approach presents an unusual challenge.
Lawyers tend to be most comfortable when the discussion focuses on the law.
Here, the advocate and the mediator can work together. When the need for clients to speak more candidly becomes apparent, the mediator may break the sides into private caucuses. Sometimes, the advocates recognize this need before the mediator does, based on their more extensive knowledge of their clients and the other side, and make the helpful suggestion that the time to caucus has arrived. Once apart from the others, each side can let its hair down without fear that its candor will offend or antagonize those others to the point where negotiations cannot proceed. If the cards are well played, the parties and the mediator will explore, directly and honestly, all aspects of the conflict necessary for meaningful progress in their negotiations.