Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.
Listen. Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck.
I’m talking to attorneys here — but settlement officers, judges and mediators should pay attention as well. Whether you’re representing the CEO of a Fortune 500 Company or the 60-year old man who slipped on the iconic darkened bananna peel in the produce section of the local Ralphs, at some point during settlement negotiations your clients are going to suspect one or more of the following:
- you’re tired of his case and want to get rid of him
- you’re in cahoots with opposing counsel, with whom, frankly, you have a far more enduring if not affectionate relationship than with your client
- you and your old buddy the mediator or settlement judge/officer have joined forces to to compel him to give up his legal rights in exchange for less money than you, his attorney, told him he was likely to recover two years ago
- despite his protests, you, the mediator and opposing counsel keep saying the fact most important to his case is “irrelevant” to his chances of recovery
- when you talk to opposing counsel or the mediator about the case, he doesn’t even recognize what you’re talking about — this is not the same case he brought to you to try two years ago
- he feels extorted and no one is paying any attention to that
- he feels like he’s being sold down the river and no one is paying any attention to that
- he paid his you and your law firm tens of thousands, hundreds of thousands, millions or tens of millions of dollars in attorneys fees and he thinks he could have settled the case for the sum that’s being offered/demanded now before he paid you to litigate this case to the settlement conference.
- he’s really really irritated now — angry even — though he doesn’t get angry; he gets even, and he’ll have no trouble spending another few million on attorneys fees so show that lying, cheating so and so in the other caucus room a thing or two
- he’s a successful business man and he’s never been treated with so little respect before.
Now let me tell you something else. If these thoughts are some of those which race through your clients’ minds during settlement conferences, your mediator should be sufficiently alert to the changing temperatures in the room to address them.
Because the mediator’s job is not to settle the case.
The mediator’s job is to:
- assist you in helping your client understand the options available to him
- assist you in delivering bad news to your client in a way your client can hear it
- assist you in negotiating as good a settlement as possible for your client without making your client feel as if he has no other options
- assist you in resolving for your client the justice issues that your client originally brought to you to resolve
- assist you in helping your client recognize and set aside the emotional experience of the settlement conference for the purpose of doing a sober cost-benefit analysis
- assist you in helping your client recognize that legal cases change over time; sometimes getting better and sometimes getting worse, usually both in the discovery process — this is not the case your client originally brought to you — untarnished by the harsh adversarial systems but puts “facts” to a more exacting test than any other process in business, political or social life
- assist you in helping your client recognize his own fallibility, potential for error, and accountability for his part of the harm for which he is seeking recompense
- assist you in helping your client recognize that the other side — evil, destructive and hateful as it may well be — also has a few items of “truth” and “justice” on its side of the balance sheet
- assist you in helping your client make an informed decision without pressure from anyone whether he wishes to accept less than he wants to or would like to take his chances at trial
- assist you in walking away from the mediation or settlement conference with your client clapping you on the back and saying, “great work, John. If I’m ever in need of a litigator again, rest assured it’s to you I will come. I’ll tell my friends on the block or on the Board of Directors that you’re the man.
How do we accomplish these ten aspirational goals together — attorney and mediator and client? Stay tuned.
The Jerry McGuire video above is for our clients — with whom we do not share just how hard we are working and what a toll it takes upon us because that’s what they’ve paid us to do — and paid us handsomely I might add.