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Walking A Fine Line

by Phyllis Pollack
March 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Ah! Attorney’s Fees. Where would the litigated case be without them. To a plaintiff, the ideal situation is one in which defendant pays the fees of plaintiff’s counsel, either as a result of a fee-shifting statute or a contingency fee agreement.

        But, such an arrangement poses a quandary for the mediator who is trying to settle the case and is having difficulty doing so because plaintiff’s attorneys fees are getting in the way. To pose the issue more succinctly, consider the following inquiry:

      “ “The mediation has reached an impasse over the settlement amount. The mediator asks counsel (outside the presence of his client) if counsel can modify/reduce the fees owed to him by the client in order to bridge a small gap between the parties’ settlement amounts. Counsel refuses and said the mediator is being unethical in making such a request. Is the mediator’s question unethical?” ” ( SODR 2009-1 at p. 1.)

         In its opinion SODR 2009-1, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance answered the question in the negative:

      “The mediator did not act unethically in suggesting to counsel – outside the presence of his client – that he could consider offering his client a fee reduction in order to reach a settlement at the mediation. However, the mediator must be sensitive when handling this delicate subject, which, if mishandled, may create tension between client and counsel and potentially jeopardize the mediation.” (Id.)

        Citing Standards I and II (involving self-determination and impartiality, respectively) of the Model Standards of Conduct for Mediators, the committee noted that the attorney, while not an actual party to the dispute, is a “participant” in the mediation. Thus, counsel’s interests are an issue that must be considered in any attempt to resolve the matter. While a mediator cannot coerce either a party or her counsel to accept a settlement since mediations are to be guided by self-determination of the participants, the mediator, being sensitive to the potential risk of creating a conflict between plaintiff and counsel, can raise the issue – using caution – to counsel alone. By raising it diplomatically and separately with counsel, the mediator also preserves the quality of the process, another standard to which mediators must adhere.

      This issue continues to surface and resurface in many informal discussions with and among my colleagues, and many mediators have expressed their view that they shy away from raising the issue altogether. I, too, hesitate to raise the issue as I do not want to create a conflict or drive a wedge between the attorney and her client.

       But, according to this opinion, I, and my colleagues, need not be so shy. We just need to raise it cautiously, diplomatically and out of earshot of the plaintiff.

       So. . . if a mediator should raise the issue with you, don’t think her unethical. She is simply doing her job. . . trying to help the parties reach a settlement, using the principles of self-determination, impartiality and preserving the quality of the process, as tools in her toolbox.

       . . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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