In 2000, I decided to move away from practicing law because I got tired of fighting with opposing counsel and being labeled and treated as the "bad guy" simply because I was representing an allegedly "bad guy". It seemed that civility and professionalism among lawyers no longer existed, and I and my clients were continuously lumped together as "hated and despised" individuals.
I recently conducted a mediation that brought home the value of professionalism and civility among lawyers. Indeed, the case would not have settled without it. The mediation contained two lessons: (1) make certain that what is being offered can be fulfilled; and (2) relationships among lawyers REALLY do matter.
The case was about an automobile which plaintiff claimed was a "lemon" due to the myriad of times she had brought it in to the dealer for various and sundry repairs. Many of the complaints were resolved after one repair but there were others that were not. Some of them were noise related and others were not. So, plaintiff sued under California's Song Beverly Consumer Warranty Act, California Civil Code section 1790 et seq.
Plaintiff's initial demand was that the defendant manufacturer repurchase the vehicle. The manufacturer responded by offering minimal cash-$5,000 inclusive of attorney fees and costs, with plaintiff keeping the vehicle. Obviously, this did not sit well with plaintiff, and so I figured a joint session among attorneys only was warranted.
After that joint session, the parties traded numerical amounts, a few more times. As the day was progressing, and in an effort to perhaps skip a few steps and settle the matter sooner rather than later, Plaintiff's counsel wondered to me what was Defendant's ultimate authority. As I did not know, I had a candid conversation with the defendant's representative and counsel about how much they thought they could get from "headquarters" to settle the case. Right then, they advised that they had $9,000 but thought that if they made a telephone call they could get as much as $11,000. I asked if that latter amount was what they wanted me to offer and, and they said "yes"; they were confident that the folks back home would approve it.
So, I relayed this to plaintiff's counsel. After a few minutes of discussion with her client, counsel asked me to ask defendant to request $13,000 from "headquarters." I did so.
Defense counsel and the representative made the telephone call requesting the amount. Counsel then advised that the supervisor at "headquarters" would not budge even a penny off of the original authority of $9,000. Even when told that $11,000 would settle the case, (although plaintiff was hoping for $13,000), the supervisor absolutely would not budge.
What a dilemma! Defendant had just made an offer ($11,000) that it could not fulfill. Because of it, plaintiff's expectations had been pegged to this amount. To now tell plaintiff that defendant never really had that authority and had in actuality only $2,000 less- $9,000- would destroy any attempt to settle. Further, plaintiff would accuse defendant of not acting in "good faith", or being "misleading", or not trustworthy or other counterproductive accusations. Psychologically, plaintiff was primed to accept $11,000, and there was no way plaintiff could do a quick mindset change and accept the lower amount. (Thus, the moral here is never to make an offer of which you are not 100% sure; if defendant had offered $9,000 with the comment she would try for an additional $2,000 in authority, plaintiff's hopes would not have been raised and the inability of defendant to obtain that higher amount would not have created the dilemma now confronting the parties.)
The community of plaintiff and defendant attorneys who practice in this field is small; they continuously work with each other on cases day in and day out. Because of this ongoing relationship, they have learned that good working relationships with each other are important because one day defense counsel may be in a bind and need an extension and the next day, it may be plaintiff's counsel who is in the bind, requesting the extension. This community, by and large, has created professional and respectful relationships among each other to the point that after a motion hearing or mediation, they may even have lunch together.
This is where the professionalism and respect kicked in. Plaintiff's counsel, recognizing that the case should settle, but $2,000 short of the goal, approached defense counsel and essentially commented that on a prior case, defense counsel had helped her out and so now it was payback time. She would adjust the amount of her fee so that her client, the plaintiff, would not leave disappointed.
A settlement agreement was quickly prepared and signed by all.
I was greatly taken by the professionalism of counsel, finding it extremely refreshing that these two attorneys (along with others in this community of lawyers) neither take the matters they handle personally, nor are hurling ad hominem attacks on each other simply because of who they represent- the "bad guy". Rather, they separate the person from the issues and remember they are the "hired gun" trying to do the best job they can for their respective clients and that there is nothing wrong with being civil, professional and respectful to opposing counsel in the process of that representation. They are no less an advocate; if anything, they are better advocates!
Relationships do matter and make all the difference in settling cases!
.... 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.