Mediating a matter that is in litigation is sometimes difficult. By virtue of the fact that the matter is being litigated, each attorney has taken on the mantle of being an advocate for the client, and thus, by implication, of being adverse to the opposing attorney. Having spent many months in an adversarial role, the attorney is required to walk into a mediation, suddenly cease being adversarial and antagonistic, and negotiate a resolution that is acceptable to all. Needless to say, on more than one occasion, I have asked counsel to hang their “adversarial cloaks” outside the conference room door and come into mediation re-focused to a mindset not geared for combat but for resolution.
With the above in mind, I find it noteworthy that on July 20, 2007, the California State Bar published “California Attorney Guidelines of Civility and Professionalism.” Of particular interest to me as a mediator are Sections 13 entitled “Settlement and Alternative Dispute Resolution: and 18 entitled “Negotiation of Written Agreements,” Each section provides in full:
Section 13: Settlement and Alternative Dispute Resolution:
An attorney should raise and explore with the client and, if the client consents, with opposing counsel, the possibility of settlement and alternative dispute resolution in every matter as soon as possible and, when appropriate during the course of litigation.
a. An attorney should advise a client at the outset of the relationship of the availability of informal or alternative dispute resolution.
b. An attorney should attempt to evaluate a matter objectively and to de-escalate any controversy or dispute in an effort to resolve or limit the controversy or dispute.
c. An attorney should consider whether alternative dispute resolution would adequately serve a client’s interest and dispose of the controversy expeditiously and economically.
d. An attorney should honor a client’s desire to settle the dispute quickly and in a cost-effective manner.
e. An attorney should use an alternative dispute resolution process for purposes of settlement and not for delay or other improper purposes, such as discovery.
f. An attorney should participate in good faith, and assist the alternative dispute officer by providing pertinent and accurate facts, law, theories, opinions and arguments in an attempt to resolve a dispute.
g. An attorney should not falsely hold out the possibility of settlement as a means for terminating discovery or delaying trial.
Section 18: Negotiation of Written Agreements:
An attorney should negotiate and conclude written agreements in a cooperative manner and with informed authority of the client.
a. An attorney should use boilerplate provisions only if they apply to the subject of the agreement.
b. If an attorney modifies a document, the attorney should clearly identify the change and bring it to the attention of other counsel.
c. An attorney should avoid negotiating tactics that are abusive; that are not made in good faith; that threaten inappropriate legal action; that are not true; that set arbitrary deadlines; that are intended solely to gain an unfair advantage or take unfair advantage of a superior bargaining position; or that do not accurately reflect the client’s wishes or previous oral agreements.
d. An attorney should not participate in an action or the preparation of a document that is intended to circumvent or violate applicable laws or rules. . . .
While in my more than 300 mediations, I have yet to encounter any attorney or party that has not been “civil,” I think the points raised in these guidelines are useful, and ones that should be kept in the back of everyone’s mind at every mediation.
So while I ponder whether civil litigation has indeed, become so “uncivil” that the State Bar found it necessary to publish guidelines on how to behave as mature adults, I pass along two of the guidelines in my never ending quest for learning and thinking about “interesting” stuff.
. . . Just something to think about.