Counseling Clients To Consider Compromise: The Benefits Of Mediation

This article first appeared in 20 The Practical Litigator 5 (January 2009) and appears here with permission.


Sometimes there is no acceptable compromise. The litigants’ positions are irreconcilable. It is necessary that a third party — a jury, a judge, an arbitrator — decide the dispute. Most of the time, however, compromise is possible, and preferable to litigation. Most litigants eventually conclude that a negotiated resolution better serves their interests than the cost and risks of litigating to third-party resolution.


Litigation is inflexible. Generally it is a “zero-sum game.” One party wins, the other loses. One party is “right,” the other “wrong.” Litigation is defined by absolutes. In addition, litigation requires expense, time, work, and emotional energy. It may require that litigants expose proprietary or personal information and become the object of microscopic scrutiny. Its ebbs and flows are unpredictable and its consequences are uncertain. Litigation can appear to be — and can be — irrational. Observing motion day in any given trial court may cause one to doubt whether there is order in the universe. Does a rational person truly want his fate determined in this process?


Lawyers understand these things. That’s why most cases settle. Litigation may be the best alternative to adjudication by personal combat, but reasonable compromise is usually the better option. Most litigants reach this conclusion, cerebrally and viscerally, after some experience with the litigation process. Still, coming to terms with compromise can be difficult.


To a litigant, compromise may have negative connotations. One sense of the word connotes sacrifice of principle, as in “he compromised his ideals” (i.e., sold out). Another sense of the word suggests impropriety, as in “she was caught in a compromising position” (i.e., doing something disreputable). Compromise suggests abandoning purity and right, anathema to the litigant who has Truth, Justice, the statute, and the contract language on his side. (“If I’m right, why should I compromise?”).


Even the suggestion of compromise may undermine the client’s confidence in the hard-nosed litigator the client thought she hired. (“Hey, I thought you were on my side!”). This is exacerbated by cultural phenomena: our “rights” orientation; our affinity for the Lombardi ethic (“Winning is the only thing.”); the absolutist outlook inculcated by our religious traditions; and our expectation that Justice always will neatly triumph, as it does in 105 minutes on the big screen and 60 minutes on the small one, even if Paul Newman drinks too much or the Mafia runs Tom Cruise’s law firm or senior partner Al Pacino really is Satan.


Despite these human impulses toward absolutism, to properly serve their clients lawyers must counsel on the benefits of compromise. Michigan Rule of Professional Conduct 2.1, typical of most lawyer ethics codes, recognizes the lawyer’s role as “advisor” and requires that the lawyer “render candid advice.” This includes aiding the client to transcend emotion and assess his true interests. MRPC 2.1 continues: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” The comment to MRPC 2.1 elaborates:


Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate.


MRPC 1.4(b), addressing “communication,” provides: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The comment to MRCP 1.4 instructs: “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so.”


Sometimes the lawyer’s task is simple: to explain to the client that it doesn’t make sense to go to trial and spend $100,000 in fees to collect $20,000 in damages. Sometimes, however, the lawyer’s task is more difficult, when the client says: “I’m right. I will not compromise. Whose side are you on?”


Still most clients eventually understand that compromise must, at the least, be seriously considered. Helping clients reach this understanding can be aided by allusion to the wisdom of others.


There is the lawyer’s aphorism: “A reasonable settlement is preferable to a good case, because one can always lose a good case.”


There is Judge Learned Hand’s 1926 observation to the New York Bar: “…as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.”


There is Abraham Lincoln’s advice, circa 1850, from his “Notes For A Law Lecture”:


Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses and waste of time.



There is Voltaire’s voice of experience: “I was never ruined but twice — once when I lost a lawsuit and once when I won one.”


There is Charles Dickens’ description in Bleak House of the Court of Chancery:


… which gives to monied might, the means abundantly of wearying out the right: which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, “suffer any wrong that can be done you, rather than come here!


And there is Ambrose Bierce’s definition of “litigation” in The Devil’s Dictionary (1911): “A machine which you go into as a pig and come out of as a sausage.”


Mediation is a good way to determine if there is palatable alternative to becoming a sausage. Mediation, like sausage, comes in various shapes and sizes, affected by varying philosophies.


Some mediators are “peacemakers,” seeking to bring parties to common ground by providing a safe environment where all can be heard and understood. These mediators can succeed and their successes validate their worldview: humankind is good, and understanding can bring peace between warring spouses; terminated employees and their former employers; injured patients and their once-trusted doctors; and angry vendors and their dissatisfied customers. Peacemakers sometimes fail, prompting them to utter a variation of Rodney King’s lament: “Why can’t we all just get along?”


Other mediators are judgmental, and ready to tell the parties where they ought to end up, and why, and why they are off the deep end if they don’t see things just that way. Many of these mediators are former judges who act as if they still have iron fists inside their velvet gloves. These mediators can succeed, too, and their successes validate their worldview: that the parties just needed a stern talking-to about the facts of life. Judgmental mediators also sometimes fail, prompting them to remark on leading horses to water.


Different parties and different disputes are better served by one or another mediation style. Still, almost any style can effectively promote desired clarity. Anyway, most mediators are somewhere on the philosophical continuum between Rodney King and Judge Roy Bean, and most will tailor the mediation to accommodate the parties’ preferences. Most mediators listen, probe, suggest, facilitate, and help the parties focus on, as the mantra goes, their interests, not their positions. Indeed, often the most significant contribution made by a mediator is causing the parties to define their interests and realistically assess their BATNAs (best alternatives to a negotiated agreement, i.e. trial).


Michigan’s mediation court rule provides as good a definition as any: “Mediation” is a process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement.



The rule makes it explicit that a “mediator has no authoritative decision-making power.” MCR 2.41(A)(2). Mediation may be voluntarily undertaken, or it may be imposed by the court (absent some irate party’s constitutional challenge to court-imposed delegation to a private mediator at the parties’ expense), but any agreement is purely voluntary. As no party can be compelled to compromise, mediation carries small risk; usually there is the possibility of much to gain and little to lose.


I’ve participated in mediation from both non-party perspectives, as a mediator and representing litigants. I’ve found that it often is a productive undertaking on multiple levels, even if it doesn’t produce settlement. It gives the parties a kind of confidential “day in court,” where they express their viewpoints — factual, legal, and, often, moral and emotional — directly to their opponents. It requires that parties clearly articulate — and support — their viewpoints for a critical audience. This can cause parties to assess rationally, if not entirely objectively, their viewpoints from the opposing perspective, often for the first time. Often mediation diffuses emotion and encourages civility and moderation. Even when parties blow off steam—and say exactly what they have been thinking—having an outlet to do this can alter objectives and diminish the parties’ need to pursue vindication, paving the way to settlement based on rational self-interest. At the least, mediation sharpens issues and identifies exactly what is in dispute.


By providing a hospitable forum for communication between the parties, mediation can eliminate misunderstanding, reveal common ground, and identify compatible goals. It is not unusual for litigants to begin mediation breathing fire and end — settlement or not — thanking one another for listening. And, of course, mediation often does result in settlement. Communication, aided by an effective mediator, can overcome what were seemingly insurmountable differences. Further, an effective mediator can validate the sound advice already given by the litigants’ lawyers, confirming the risks of litigation and the benefits of reasonable compromise. The mediator’s neutrally-communicated perspective can shed new light on the situation, even when this phenomenon is based on a variation of the principle that an expert is someone from out of town.


Of course, despite the parties’ good faith and the mediator’s best efforts, sometimes there is no acceptable compromise. Sometimes nothing will substitute for that real “day in court” and a decision by jury, judge or arbitrator. C’est la guerre. That’s what keeps litigators in business. At the same time, however, even the most combat-hardened and partisan litigators serve their clients by counseling them to consider compromise. In many cases, mediation is the way to clear the fog, identify the parties’ true interests, test whether reasonable compromise is possible, and rationally assess the looming alternative: litigation, only slightly ahead of sickness and death on Judge Learned Hand’s dread list.



                        author

Stuart M. Israel

STUART M. ISRAEL is a lawyer and mediator, practicing with the law firm Legghio & Israel, P.C. in Royal Oak, Michigan. His book, Taking and Defending Depositions (ALI-ABA 2004), is in its third printing. MORE >

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