The Three Lawyers

It's interesting how many stories involve three main characters. The Three Little Pigs, the Three Musketeers, Goldilocks and the Three Bears, My Three Sons (for those of you younger than 60, you might have to look that one up). This story is also about three main characters: The Three Lawyers. Our story is about the way in which the three lawyers behave in mediation.

Clients typically arrive at mediation "on fire." Many times the fire is fueled by anger based on the belief that the defendant has done something to them that is terribly wrong. Additional fuel for the fire is provided by the frustration arising from the time and expense incurred in righting the wrong. On the defense side, the fire burns hot at the indignation of being wrongfully accused, and having to spend good money and time that could be better spent on other, more worthwhile endeavors. Whether it's a small campfire or a blazing bonfire, the emotions of the parties are burning brightly.

And what of our three lawyers? How do they react to the fire? Our three lawyers have very different reactions. Lawyer number one, anticipating the fire, brings a fire extinguisher to the mediation and does his or her best to put the fire out. Lawyer number two brings a 5 gallon can of gasoline and at the critical moment when the case might settle, hurls the gasoline on the fire and watches it explode. Lawyer number three simply stands and watches the fire burn, doing virtually nothing to either put the fire out or to make it burn hotter.

Let's analyze our three lawyers a bit more. Let's start with lawyer number two - the gasoline thrower. This is every Mediator's least favorite lawyer because this lawyer disrupts the settlement process and undermines the efforts of the Mediator. What is the motivation of this lawyer? There are any number of possible answers but among the suspects are the following: inexperience leading to poor judgment, greed, overpromising, being caught off-guard and inappropriate aggressiveness.

Let's say that the client has unrealistic expectations of the type or amount of damages that he or she might recover. For example, in a real estate non-disclosure case, the client asserts a demand to be paid for emotional distress damages (precluded by the case law). This demand is impeding a settlement. The Mediator gently (sometimes less gently) suggests that the damages are not legally recoverable. The gasoline-thrower jumps in and begins to argue with the Mediator: "Of course we can get those damages!" What happens as a result? Two important things: first, the lawyer has undermined the Mediator's credibility with the client; second, the lawyer has bolstered the client's already unrealistic expectations; third, likely there won't be a settlement because the client will not abandon the critical damage claim that is making the settlement impossible. The gasoline-thrower might have mistakenly (or for other reasons) told the client before the mediation that these damages are recoverable and now cannot backtrack without losing credibility with the client.

The gasoline-thrower may also be acting out of simple greed (it's an hourly case with a client who is willingly paying the bill and not questioning the hours) or because the lawyer cannot confront the client and "speak truth to power," either for fear of offending the client or disappointing the client.

What about lawyer number three - the "bystander." There are a number of reasons for this lawyer's behavior. First, this lawyer may simply be inexperienced and not understand the dynamics of the situation or know what to do. In this regard, we could compare this lawyer to an amateur firefighter - the first time a firefighter can see that there's a serious problem but he or she simply doesn't know the best way to put the fire out. Second, this lawyer might be reluctant to put the fire out for fear of damaging his or her relationship with the client. Simply put, the lawyer is afraid to confront the client. Third, this lawyer might be acting in a passive-aggressive way, meaning that they might not affirmatively add fuel to the fire but by doing nothing they allow the fire to burn - which leads to the same result - no settlement. Fourth, this lawyer may not understand that the client is on fire in the first instance. In other words, this lawyer may fail to comprehend that emotions are driving the client's decision-making process and thus see no need to act. Fifth, this lawyer may expect the Mediator to put out the fire. This happens often - especially where lawyers have over-promised to the client, or where the lawyer wants the Mediator to deliver the bad news about problems in the case.

Finally there is the first lawyer, the one who plans ahead and brings the extinguisher to the mediation. This is every Mediator's favorite lawyer. This lawyer is keenly aware of the role that emotions play in the context of a lawsuit and is sensitive to anger, frustration, rage or disappointment that may be heavily influencing the client's thinking about the case and he or she understands that dealing with these emotions is essential to a resolution of the case. This lawyer understands that putting out the fire is simply another aspect of preparing a case for settlement. This lawyer checks off the box marked "bring fire extinguisher" along with the other important boxes on the checklist such as: prepare a concise mediation brief and send it to the mediator well before the mediation, prepare the client for the basic concept that a settlement will be imperfect and require compromise, have the client available for the full time allotted for the mediation and make arrangements for the client to sign a settlement agreement when the case is resolved at the mediation. Above all, this lawyer recognizes that the essential task of a lawyer is to solve a problem (in the context of mediation, by reaching a settlement), and not create a bigger problem (by protracting the litigation process).

Before your next mediation, give some thought to how you approach the mediation process. Which lawyer are you, really, in our story of The Three Lawyers? If you conclude that you tend to bring the gasoline can and not the fire extinguisher, perhaps it's time to reconsider your approach.