Oregon State Bar Bulletin NOVEMBER 2013
Professionalism in Mediation:
Avoiding Common Pitfalls
By Richard G. Spier
According to the Oregon State Bar Statement of Professionalism (www.osbar.org/_docs/forms/Prof-ord.pdf), “Professionalism is the courage to care about and act for the benefit of our clients, our peers, our careers, and the public good.” In light of this, allow me to discuss some kinds of lapses (major and minor) in professionalism that I see from time to time in my full-time practice as mediator, committed by lawyer-advocates.
You might think that a lack of professionalism while representing clients in mediation won’t subject a lawyer to the kind of disciplinary sanctions and loss of reputation that can arise in other practice contexts. After all, mediation is off the record for most purposes. Moreover, much of mediation involves confidential interaction only with the mediator (albeit with the client usually present or copied) but without the scrutiny of opposing counsel, judges, arbitrators or the media. However, even unsophisticated clients can often discern unprofessional performances; and opposing counsel can sense when the advocate is unprepared or blowing smoke. And remember, while the mediator won’t say anything negative about you to opposing counsel, he or she will tell your opponent — if justified — when you appear to be well-prepared to present a credible case if the matter doesn’t settle.
The good news is that most lawyers avoid these pitfalls all of the time. On the other hand, I do see these kinds of unprofessional actions often enough to believe it useful to bring them to the attention of lawyers who represent clients in mediation.
Here are some professional lapses that advocates should try to avoid.
Mediating for the Wrong Reasons
There are good reasons to mediate many cases (including the need for help in dealing with a difficult or unrealistic client or a problematical opposing lawyer or in complex or difficult — even if small — cases) but there are several bad reasons. These include seeking an easy way out of a case for which counsel is unprepared or unqualified or mediating because counsel is afraid to try his or her cases (your opponents sense this, by the way).
The Statement of Professionalism says, “I will explore all legitimate methods and opportunities to resolve disputes at every stage in my representation of my client.” Most cases should settle but some can and should be tried. And most cases can be settled without the expense of mediation.
Remember, your professional ability to achieve reasonable settlements for your clients will be enhanced if you develop a reputation of being ready, willing and able to try your cases, when necessary. Don’t use mediation as a crutch.
Failing to Prepare Your Case for Mediation
In mediations before most lawyer-mediators, you can expect the mediator to ask tough questions about the facts and law supporting your claims or defenses. You can expect the mediator to be respectful and empathetic to your client, but you need to be able to explain to the mediator — in your client’s presence — the strengths of your case and to acknowledge the weaknesses (and to explain how you will deal with the weaknesses). Don’t expect the neutral mediator to help you with pleading or trial strategies you have not thought of yourself. Be ready to answer such questions as:
- For plaintiffs: Is there is risk of summary judgment? How will you argue against it?
- For plaintiffs: If you get a good judgment or award, will it be collectable (based on insurance and assets)?
- For defendants: Can you keep this case away from the jury? How?
- For insurance defense counsel: If there are insurance coverage or limits issues, have you recommended that your insured client retain and bring coverage counsel?
- Do you need an expert? Have you retained one?
- How much new money will you client spend to get this case to trial court judgment or arbitration award, win, lose or draw?
- What is the admissible evidence that supports your claims or defenses? Have you confirmed what the non-party witnesses will say — such as by deposition or work-product declarations?
- Have you carefully questioned your client to be sure that you have the full story (because even honest people are sometimes reluctant to tell even their own lawyers about embarrassing or harmful facts)?
- Have you had professional discussions with opposing counsel to better understand his or her view of the opposing case and to explore settlement before resorting to mediation?
Failing to Prepare Your Client for Mediation
The professional advocate will prepare his or client for mediation as thoroughly as for deposition or trial. A well-prepared client will understand the strengths of the case before arriving at the mediation but should also understand its weaknesses (see section above on preparation).
Clients will lose confidence in counsel if they hear for the first time at a mediation session that there is risk of dismissal before trial or that the expense to try the case is much higher than previously understood.
Clients will also lose confidence in lawyers who advise an unreasonably “hard-ball” approach to negotiations in the early hours of the mediation, then suddenly seem to lose confidence and “cave” later in the day. This does not mean that counsel and the parties should not listen carefully and possibly re-evaluate settlement positions when the mediator discusses ongoing risks, but it does mean that advocates should agree with their clients ahead of time on a reasonable and coherent approach to negotiation, one based on careful preparation of the case. It’s OK to keep the other side and the mediator guessing, but don’t surprise your client.
Your client deserves candor and honesty. Almost any case can be won or lost. Judges, juries and arbitrators are unpredictable and have short attention spans. Don’t grossly overstate (but you can “puff”) your chances when the mediator asks, “What is the probability of success?” or “What is the range of likely damage awards?”
Failing to Prepare Your Opponent for Mediation
For plaintiffs, be sure that the other side has your full damage claim well before the mediation. It does no good to show up at the mediation with an economic damage claim that has not previously been disclosed and backed up with documentation. It does no good to show up at the mediation with a non-economic damage claim that has not been previously pled or which is so extreme as to engender laughter in the defense room.
For defendants, it is unprofessional to appear at the mediation with no authority or with a predetermined decision to low-ball, unless you have discussed this with plaintiff’s counsel. If that truly is the position of your client (which can be realistic and legitimate), be professional enough to so inform plaintiff’s counsel well before the mediation so that he or she can decide whether or not to proceed anyway.
Bad-Mouthing Your Opponent (Counsel or Party) to the Mediator
It’s one thing to tell the mediator in the presence of your client, “Our attorney fees are already this high because we have had to file several successful discovery motions.” But it’s another to say, “Opposing counsel is an uncooperative jerk who is impossible to deal with and tries every trick to resist legitimate discovery.” It is unprofessional to sound petty or personally offended. Cite the record and then let the record speak for itself.
Similarly, it’s one thing to say, “Based on his evasive demeanor at deposition and admissible impeaching evidence, we think there’s a good chance that the opposing party won’t make a good impression on the jury.” But it’s another to say, “The opposing party is an obvious slime ball and we are sure the jury will hate him, the way my client does.”
Bad-Mouthing Your Client to the Mediator
It’s one thing to call the mediator ahead of time and say, “My client is unrealistic about her chances at trial. I have been working with her but the jury may focus on her previous convictions for fraud and expert evidence from the other side that she forged her elderly mother’s signature to the contract to sell the home place to my client. So, I need your help in showing her the risks of trial.”
But it’s another thing to say, “My client is a flake. I’m sorry I ever took this case. I had hoped to settle much earlier, but now it is too close to trial to resign. I need to settle this, no matter what.”
Not Letting the Mediator Hear From Your Client
For many clients (even sophisticated representatives of organizational clients), the mediation session is the one opportunity to feel heard and respected by a neutral third party. This process cannot be rushed and often must include discussion of technically irrelevant or even objectively foolish issues. Lawyer-mediators will have a full lawyer-to-lawyer discussion with counsel (preferably in language or with explanations that the client can fully follow), but the process requires development of rapport between mediator and client.
Except in very rare instances, if the client wants to discuss something with the mediator, it is worth investing the time to allow this. Likewise, it is worth investing the time for the client to get comfortable with the mediator, both as a caring person and as a professional. Always remember that this is your client’s case, not yours. It can take professional restraint and patience for counsel to sit back and listen while the client vents to the mediator.
Orally Attacking the Opposing Party Across the Mediation Table
There are many approaches to mediation procedure, but most lawyer-mediators in cases other than family law and public policy cases hold short joint sessions, then do most of the their work in separate sessions with each side. If invited to make a statement in the joint session, it is almost always counter-productive to rip in to the opposing party. This can cause not only failure of the mediation but also long-term failure of later negotiations. Let the mediator take the time to pass on your assessments in a sensitive yet clear way so that the opponent can avoid some of the defensiveness and anger that will arise when hearing the bad news directly from you.
Failing to Appreciate the Difference Between ‘Puffing’ and Misrepresentation
Under the Oregon Rules of Professional Conduct, Rule 4.1(a), it is unethical while representing a client to “knowingly … make a false statement of material fact or law to a third person….” However, it is generally understood and expected that lawyers will “hold back” from the mediator expectations of ultimate settlement positions and will “puff” to some degree about risks and strengths of a case. As mediator, I don’t expect you to “spill your guts” to me about your side of the case. I’m not your co-counsel. But I do expect you to never misrepresent your actual authority (yes, I infer that you or your client representative may be able to call and get more later) and most importantly, never to misrepresent any fact you ask me to take to the other side.
Thus, if you ask me to tell the other side that you have an expert report that will defeat summary judgment, be sure that you do. If you say that you have a witness that saw the accident or was present at the critical conversation, be sure that you have indeed confirmed the witness’ testimony with the witness.
It’s not unethical or necessarily unprofessional to bluff to the mediator about your settlement position, but remember the risks. Never cross the line (sometimes a fine one) between “puffing” and misrepresentation about your client’s settlement position. Remember that the mediator or the opponent may suspect what you are doing (though the mediator won’t share his or her suspicions with the other side, but will push you). And, if the bluff is unsuccessful, you may have to “cave” at the last minute. The professional challenge is to discern the difference between aggressive advocacy and reckless abandon (which can sometimes work, but which can also blow up in the face of your client).
Letting the Other Side — or the Mediator — Know That You Are Thrilled With the Settlement
Let’s say you and your client are not only satisfied with the settlement achieved after an arduous mediation session (normally the attitude of all sides) ,but you are thrilled beyond belief by the result. Perhaps the other side was not nearly as aggressive as you expected. Perhaps your bluffing was successful. Or perhaps you belatedly came to realize at the mediation that you case is weaker than you previously thought and are relieved to be done.
Please keep these thoughts to yourself. While an extremely rare event, I have seen one side cheer loudly enough for the other side to hear when I advise that an offer has been accepted, or laugh and pat backs on the way out of the office. This is tantamount to revealing a client confidence, can motivate the opponent to try to find some way to unravel or breach the settlement and will destroy your reputation. And, if the mediator even agrees to take one of your future cases, you can expect him or her to push back especially hard.
Not Buying Lunch for the Other Side
This is one of the “minor” lapses to which I referred in the introductory section of this article. If the mediation is at your office and you are sending out for lunch for your client group, it is courteous and professional to offer to send out for the opponent (and you really should offer to pay). The benefits to your future professional relationship with opposing counsel are worth much more than the cost of a couple of turkey sandwiches.
Losing Your Cool
Mediation, as practiced by lawyer-advocates before lawyer-mediators, is an arduous procedure. In my opinion, it is part of the litigation process, not an “alternative” to it. A hard day of mediation is challenging mentally, physically — and emotionally — for counsel. There is an opponent, but he or she is in the other room. At trial, you can at least see and hear what your opponent is doing. As the day progresses, you get tired and irritated. Much as a surgeon has to react calmly to unexpected events, the advocate in mediation has to do the same.
Avoid angry protestations of “bad faith” bargaining (the mediator has heard this accusation hundreds of times). Avoid taking or giving it personally (“I guess she forgot what happened the last time we were against each other in trial”). Avoid making recommendations to stay, leave or bargain based on fatigue and emotions — rather, be a professional, take a deep breath, calm down and think it through with your client.
ABOUT THE AUTHOR
Richard G. Spier is a full-time mediator in Portland. He is a member of the Oregon State Bar Board of Governors.
© 2013 Richard G. Spier