As we noted yesterday, counsel know all too well that their clients arrive at mediation with "an unwarranted faith in the righteousness of [their] position" and that their obligation is to "bring rationality, objectivity and experience to bear on the matter."

Easier said than done, right? 

To help your mediator help you, I offer the following 5 & 5 on the why's of client hopes and the how's of diminished expectations.  

Five Reasons Why Your Clients Have Unwarranted Faith in the Righteousness of their Cause

1. when she first told you her version of the facts, she left a few things out -- like how her  partner caught her cooking the books before he "breached" the partnership agreement by refusing to let her back on the business premises.     
2. you're a zealous advocate -- not only are you paid to be -- your ethical responsibilities require it.  Despite all of your efforts to describe the perils of litigation, your client only really paid attention during the parts where you told her how great her case was. 
3. your client hasn't spoken with his business partner, supplier, importer, competitor, licensee, etc. since the dispute arose two or three years ago.  There's been no opportunity for the parties to reality test their positions with the only other party who actually knows what happened. The social psychologists called this state one of  "autistic hostility."  
4. as much as you try to anticipate the opposition's arguments, your job is to win.  It's impossible not to spend the bulk of your time justifying your client's actions and excusing his errors.
5. to work as hard as you do on your client's behalf, you must believe in the merits of her case.

Five Ways Your Mediator Can Help You "Depress" Your Clients' Unreasonable Expectations

1. let the mediator know you need some help with your client.  Call him ahead of time if he doesn't call you to discuss the nuances of the mediation session itself.  You can be candid without giving away the store. 
2. let the mediator be the "fall guy," taking the "hit" for delivering this bad news -- while you, one of the best attorneys in town, were busily developing a great case, the other side's attorney was doing precisely the same thing.
3. allow the mediator to develop as strong a personal relationship with your client as possible and permit her to ask probing questions that will gently reveal the problems with your case that have developed over the course of time. 
4. be willing to break away from your client for separate session cacucuses with the mediator to discuss how things are going in the attorney-client dynamic so that course-change is possible.
5. let the mediator know that your client is going to need more time to digest bad news -- if your mediator doesn't offer, ask him to arrange for the offer/demand to remain on the table for a  pre-determined amount of time and ask him to follow up with both parties during that period of time.

Remember:  there's no such thing as impasse, only a recess in the settlement discussions.