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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

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She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Yet Another Path to Attorney Malpractice in Mediation Proceedings: Coerce Your Own Client

Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do. 

As a mediator, however, I hear stories.  

Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediationOthers have reported that they felt ganged up on by their attorney and the mediator.  Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly. 

These stories are troubling to any mediator who values the good reputation of the mediation process itself.  They should also disturb attorney mediation advocates.

Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation?  Under certain circumstances, I think it is.  Here's the bad news.  If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.

In a 2006 article in the Ohio  Journal on Dispute Resolution TAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELD  Paula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation.  Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.

What might actionable attorney mediation malpractice look like?  Young cites the example of one woman who told the following story:

I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.

Young has a systemic solution for problems like these:  procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants.  She writes:

To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.

Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.

Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients.  When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date.  Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.  

There's no better defense to professional negligence actions that the quality of your relationship with your clients.  Keep channels of communication open.  Demand that your adversary and the mediator treat your client with respect.  At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition.  Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.
 


Comments (9)

Read through and enter the discussion by using the form at the end
Steve Mehta - September 19, 2009 8:44 AM

From my understanding the settle and sue cases are difficult to prove. Also, the example cited doesn't sound like coercion, it sounds like intimidation.

A problem also exists because many people feel unhappy at the end of a litigated case that results in settlement. The fair part is that both sides feel equally unhappy. That shouldn't be a basis for a lawsuit. Plus how would mediation confidentiality fare in this?

I have in the mediation agreement that the parties do "not" have to settle and that the mediator is not forcing the issue.

Vickie Pynchon - September 20, 2009 1:48 PM

Steve,

Thanks for dropping by to comment. I'm not certain there's much of a difference between coercion and intimidation. These cases would indeed be difficult to "win." As no one knows better than mediators, however, few people ever actually "win" a lawsuit. The damage is sustained when suit is filed or the Court refuses first to grant the demurrer and then the summary judgment motion.

When I write about mediator and mediation advocacy malpractice, my intent is as much to suggest that we establish standards of practice (and hence increase the professionalism of the profession) that we'd all agree mediators adhere to.

I DO ENDEAVOR to help the parties go away from a mediated settlement feeling as if some degree of "rough justice" has been achieved. They may be unhappy with the settlement, but they shouldn't go away feeling as if their will has been overridden by their own attorney or the mediator.

It's interesting that you've included this self-protective mechanism in your mediation agreement. It suggests that you might agree with me that the mediator shouldn't "force the issue" and that his doing so might be below the standard of care in mediation practice. Yes?

Thanks for extending the conversation. As a fellow blogger, you know how great it is when someone takes the trouble to comment and I do appreciate your efforts as well as the outstanding quality of your blog posts, which I recommend to all my readers.

Best,

Vickie

Xan Skinner - November 14, 2009 4:03 PM

We've probably all seen cases where, given the risks and benefits, it's plain to everyone but the client that they ought to accept a settlement offer on the table, but the client is having trouble coming to grips with it for one reason or another. I think it's important to prepare the client ahead of time, by using the BATNA and other scenarios to help the client envision ahead of time what settlement offers might look and feel like.

But settlement negotiations can change perceptions of facts rapidly, in ways clients may not have anticipated. If they're still having trouble with the question "how will this feel at Christmas", why not suspend the mediation for a time, so the client has time to let the dust settle emotionally before making such a big decision? I speculate that a lot of "buyer's remorse" could be avoided if the pace were slowed down just a bit to give the client's emotions time to catch up with the reality of the situation?

Steve, I agree these issues are difficult in an evidentiary sense, as well as your written consent does reinforce the idea that settlement is 100% voluntary, but is that really the issue? I think we want our clients to be happy with the process, without regard to what is on paper ahead of time. In some sense, the client is likely to be unhappy no matter what happens if they don't get exactly what they want (e.g. turn down settlement and then lose, or accept settlement and think they could have done better), but I think part of the challenge is to make sure the process does remain completely within the party's volition and not our own, as a matter of fact and not merely what we talk about.

Vickie Pynchon - November 14, 2009 8:23 PM

Thanks for commenting Xan. There is often a point in settlement negotiations where the where the figures being passed back and forth begin to seem like monopoly money and the clients are saying . . . what happened? Now we're talking about numbers I never thought I'd consent to. As I write this I realize there's a post on this so I'll just stop and thank you Xan for priming the pump for tomorrow's post!

Renee Evers - November 22, 2010 1:37 PM

My attorney forced me to attend two settlement conferences in approximately one
year. He arranged both of these conferences without my permission and insisted on just one judge that he knew would work with him. On the last conference he arranged, went to court and insisted that I attend, he had managed to eliminate telling me that my 5 Year Court Case was finally scheduled for Court in a couple of months, he lied about my dental expenses
(I spent over $100,000.00) and he stated $25,000.00 even though he had a copy of all my expenses. He and the Judge pummelled me both of them purposely
avoiding that I just got out of the hospital 4 days before with massive brain surgery. They said I signed, even though I told them under my diminished capacity I definitely did not want to sign, and later on my atty's court documents
closing my case . . were proven that he forged my signature. This man had the audacity to send me $14,000.00 for my settlement. This seems to be a silent
connection to the one (there were two) insurance companies involved for the
defendant. I was too sick to try to get the case back within the 6 months, but
I am ready to declare the judgement fraudulent and hope I can re-open my 5 year court case. My atty. sold me down the river and I am trying, but I really don't know
how to handle it. . I even have Doctors' notes saying I was not capable to make
any decision. The Judge worked as an executioner instead of a mediator. My mental capacity from brain injury and brain surgery was extremely limited. I
couldn't even write, read, speak, walk during that conference but these two
maniacs wouldn't let me rest, give me a glass of water or let me go home to
pass out. On my way home, I had a seizure. .
R. Evers.

Renee Evers - November 22, 2010 1:38 PM

My attorney forced me to attend two settlement conferences in approximately one
year. He arranged both of these conferences without my permission and insisted on just one judge that he knew would work with him. On the last conference he arranged, went to court and insisted that I attend, he had managed to eliminate telling me that my 5 Year Court Case was finally scheduled for Court in a couple of months, he lied about my dental expenses
(I spent over $100,000.00) and he stated $25,000.00 even though he had a copy of all my expenses. He and the Judge pummelled me both of them purposely
avoiding that I just got out of the hospital 4 days before with massive brain surgery. They said I signed, even though I told them under my diminished capacity I definitely did not want to sign, and later on my atty's court documents
closing my case . . were proven that he forged my signature. This man had the audacity to send me $14,000.00 for my settlement. This seems to be a silent
connection to the one (there were two) insurance companies involved for the
defendant. I was too sick to try to get the case back within the 6 months, but
I am ready to declare the judgement fraudulent and hope I can re-open my 5 year court case. My atty. sold me down the river and I am trying, but I really don't know
how to handle it. . I even have Doctors' notes saying I was not capable to make
any decision. The Judge worked as an executioner instead of a mediator. My mental capacity from brain injury and brain surgery was extremely limited. I
couldn't even write, read, speak, walk during that conference but these two
maniacs wouldn't let me rest, give me a glass of water or let me go home to
pass out. On my way home, I had a seizure. .
R. Evers.

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Darlene Bolton - March 29, 2013 11:38 PM

I was treated unfairly in my divorce by my Attorney and the Mediator. They both said a lot of degrading, racial remarks to me, forcing me to sign the papers, and the judge who would try the case in court is their good friend who does not want to hear my drama and will be on the same page as them. My ex is retired Military, has the better job, comes off as a great guy but is abusive at home got away with his abuse during one more marriage. I was forced to sign and then threatened with consequences for telling anyone that I was forced to sign. I am an American citizen from another country and every one of my civil rights was violated during my divorce.

Darlene Bolton - March 29, 2013 11:38 PM

I was treated unfairly in my divorce by my Attorney and the Mediator. They both said a lot of degrading, racial remarks to me, forcing me to sign the papers, and the judge who would try the case in court is their good friend who does not want to hear my drama and will be on the same page as them. My ex is retired Military, has the better job, comes off as a great guy but is abusive at home got away with his abuse during one more marriage. I was forced to sign and then threatened with consequences for telling anyone that I was forced to sign. I am an American citizen from another country and every one of my civil rights was violated during my divorce.

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