When Attorneys Become the Common Enemy
The Enemy of My Enemy is My Friend
Mr. and Ms. Keene (names changed) entered the community mediation conference room and cautiously took their places next to one another at the scarred wooden table. Though slightly wary, their greetings were warm. He touched her lightly on the arm. She pulled away, but smiled back.
After the preliminaries were out of the way -- introductions, "rules of the road," the signing of a confidentiality agreement -- Mr. Keene launched into a low-key but passionate tirade about . . . . . .
THE ATTORNEYS . . . . . .
a topic upon which there was complete agreement.
The attorneys had been
- disrespectful, retiring to chambers with the judge while the parties sat outside the closed door listening to their attorneys' laughter;
- unresponsive to telephone calls; and,
- high-handed in responding to the Keenes' repeated requests to deviate from certain "standard" or "accepted" custody arrangements in favor of arrangements they knew were best for them and their child.
I apologized for the way we attorneys sometimes act as if the dispute is our own; as if our relationship with Judge and opposing counsel is more important or compelling or fun than our interest in our clients; and, as if we know more about what's good for our clients' business (be it the business of running a family or a Fortune 500 company) than our clients do.
By the time Mr. and Mrs. Keene arrived at the door of the Community Dispute Resolution Center, they were not simply exhausted and angry, they were nearly entirely disempowered.
"How do we 'de-power' our lawyers?" they asked.
"By taking your power back," I responded, alert again to my own inclinations to give unsolicited advice or raise problems only I might think the parties have.
I've seen attorneys unite disputants before. Early in my career, I observed the bitter progress of a case involving hundreds of millions of dollars in lost profits and a fight for the control of intellectual property worth more than a billion dollars. After the parties had turned one another into the tax and custom authorities, they met without their white shoe attorneys, settled the case, and sued counsel for malpractice.
The Keenes left the mediation with an agreement in hand and their self-respect restored.
I do not fault their attorneys. I do not know what transpired before I arrived on the scene.
I only know that at some point, the attorneys lost "control" of their clients by asserting too much of it.
