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Victoria Pynchon

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She Negotiates

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Do Attorneys' "Get in the Way" of Mediator Assisted Negotiations?

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

  1. don't "significantly affect the settlement rate" /2
  2. don't significantly affect "the perceived fairness of the process";
  3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
  4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

  1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
  2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
  3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

 

Comments (10)

Read through and enter the discussion by using the form at the end
Jan Frankel Schau - January 12, 2010 5:05 PM

Wow, Vicki. This is powerful stuff. Existential and experiential. The implications are vast. Do you think we need to return to the joint session format to provide that lost chance at reconciliation, lawyer's preferences be damned? Do you think we need to stand beside the attorneys at all times lest they be bad-mouthing their mediator in service of aggrandizing their "position" to their clients? Any practice conclusions?

Joe Markowitz - January 12, 2010 6:10 PM

The only really bad experience I ever had in a mediation was when the mediator kicked the attorneys out of the room and had a session with my client and the opposing party alone. I went along with that on the theory that the opposing counsel was obstructing progress. But after the parties came out and announced that they had made a deal, I found out after I had a chance to talk to my client privately, that my client regretted making the deal, and was also second-guessed later by other principals of the company. So what probably was a good business deal for the company turned into a bitter experience because my client felt coerced into making an agreement.

Since that time, I always try to make sure when I am acting as an attorney in a mediation, that I fight hard to get the best possible deal for the client, and that I make sure before my client signs anything, that he or she is very comfortable with what they are doing. When I act as mediator, I tell the participants to listen first and foremost to their own attorneys' views of the case. Everyone has a role to play in a mediation, and there is danger in shutting anyone out.

Vickie Pynchon - January 12, 2010 9:44 PM

Thanks for commenting Jan and Joe.

As to Jan's question about joint sessions I have two answers. I do believe attorneys should begin to consider accepting the advice of mediators with whom they've had good experiences when the mediator recommends a joint session.

Attorneys are rightly skeptical of these sessions, however, in light of the dozens of horror stories they've told me about joint sessions winging out of control and damaging any chance for settlement.

This is not, as both Joe and Jan know, a problem with joint sessions, but a problem with mediators who are neither trained nor experienced in managing joint session mediation. Joe's experience is just one of many examples of attorneys being 'stung' by inept joint session mediators or those who see their primary "skill" as one of the Dark Arts, i.e., coercion.

Mediators who have extensive community mediation experience, however, are extremely adept at handling joint sessions because all community mediations are primarily conducted in that fashion. The wise attorney says "no thanks" to any mediator without this experience in one setting or another and "yes" to a mediator who possesses the experience AND who is already a trusted advisor to the attorney hiring him or her.

THANKS for keeping the conversation going!

On the second issue raised by Jan, I have no trouble being the "fall guy" in the mediation if that's what is required to close the deal. In fact, I've even made the suggestion myself from time to time. "Blame it on the mediator," is a good cop/bad cop tactic that can be played in one room with the attorney (saving face) and the mediator taking the rap for the bad news that the attorney can't deliver to the client without appearing traitorous.

As to reconciliation, I am a firm believer in the transformative power of joint session mediation. I see it happen routinely in community mediation in situations far more fraught with emotion than the commercial litigation I mediate for a living. I also believe, as Jan certainly knows, that money can and often is saved or spent more freely when the parties experience a transformation of their heretofore fixed idea that their opponent is . . . frankly . . . THE DEVIL. I make recommendations for transformative work when something about the parties' expression of emotion suggests to me that it would be helpful in breaking impasse or improving the result for both parties. At the end of the day, however, I am guided by counsel and would never presume to come between an attorney and his client.

Timothy R. Hughes - January 14, 2010 10:18 AM

Interesting post.

My experience is mixed: I have definitely had lawyers in cases, negotiations, trials, arbitrations, and mediations that were part or all of the problem, not the solution. I have also had folks who helped clients see the light.

As a litigator and trial attorney and business lawyer, I feel my job ultimately is to use whatever tools I can to solve the client's problem. That generally involves trying to resolve it amicably rather than risk lack of certainty, but sometimes that just will not happen.

It is pretty funny what you said about mediators blaming the lawyers though ... much of the same dynamic that the lawyers are generally bringing the mediators the work! Definitely a great parallel there on a lot of levels.

Ericka B. Gray - January 15, 2010 6:02 AM

My experience is that lawyers are often invaluable to the mediation process in assisting in obtaining settlements. However, many lawyers favor "litimediation," which is less client centered and more lawyer driven, which may draw the mediator away from focusing on client's interests and resolution, rather than settlement. I know that this may be a narrow distinction, but one that I believe is important. Balance is key and the interests of the clients and the lawyers must be addressed.

Lee Jay Berman - January 17, 2010 11:34 PM

Vickie, what an amazing post! You write so eloquently! And so pointedly. While it may be politically correct to say that lawyers are indispensable and all of that, as most mediators who do litigated cases know where their bread is buttered, I have to say that for my first 18 months as a mediator, I felt that we could get generally settle cases if the lawyers would just get out of the way, I very soon learned that good lawyers were the most important (yes, I said MOST important) variable weighing in the favor of getting any dispute resolved.

Give me the most challenging parties, the most diverse perspectives and the most hairy discovery, and with two really good lawyers, we can get the case resolved. I owe the majority of my "mediator magic" and my resolution rate to good lawyers. I thank God that they keep bringing their cases to me because I know that with them in the game, my odds are good.

The difference is in the mediation seasoning of the attorney. Good lawyers who see themselves as Counselors at Law, aren't afraid of allying themselves with the mediator to help their client achieve closure. It's only lawyers who come from the old school of thought that neither the mediator, nor the opposing counsel or any client at the table are to be trusted who some mediators feel "get in our way".

For me, this highlights the need to continue educating counsel, and, at least for me, to keep relying on them to bring all of their intellect and creativity and problem-solving skills into the room when they come to visit.

Thanks for raising and analyzing the issue - you're the best!

Vickie Pynchon - January 18, 2010 11:03 AM

Thanks for dropping by to comment Lee Jay, Ericka and Tim. Lee Jay hits the nail on the head when he talks about trust and continuing mediation advocacy training. What I continue to trust to provide the magic in the mediation is the process itself. I have seen baffling, intractable, highly emotional, position-driven competitive negotiators settle cases because of, despite and over the head of good, bad and middling mediators. As the transformative people say, it's the mediators job to create the space of hope and safety and then get out of the way of the parties' desire to resolve and, yes, reconcile. And anyone who doesn't believe the attorneys need to reconcile with one another hasn't litigated long enough or has been litigating for so long they no longer notice how bad the competitive, hyper-vigilant, adversarial system makes them feel. In commercial litigation, that "feeling" is primarily anger and sometimes a state of controlled rage, all of which creates collateral damage in the war of wits that also makes litigation and trial work so darn much fun. O.K., I'm going to blow all my credibility now by quoting Avatar. Pandora doesn't take sides. Pandora is on the side of balance. I do not jest when I say the angriest, least tractable, most difficult mediation advocate has something he wants to, needs to, say and accomplish. His view may be the most important because he is likely closest to the reason we're here in the first place - the injustice we've all come together to remedy in our clumsy, hopeful, fallibly human way.

Off to mediate! Thanks for conversing with me on the blog. It makes my life a genuine pleasure.

Ann Begler - January 18, 2010 11:23 AM

I do my best to deal with these issues at the in-person, pre-mediation conference I have with counsel.

I actually do a considerable amount of work in joint sessions. However, what I say is that there is nothing prescriptive about the way I work. I discuss the potential value of joint sessions, of caucuses and let everyone know they can ask for a caucus if I don't raise it. I also let counsel know that from time to time I may suggest the possibility of a caucus with only the clients (that meeting is never to finalize an agreement if people are represented). I want to know counsel's perspective, in advance, regarding that issue. The last thing I want to have happen is to have an attorney be surprised by something I say or do at a session if that can be avoided. At the initial session I talk with everyone (though directed to the clients) about the role of legal counsel in mediations and I let the clients know how important it is that they are represented by counsel who have the capacity to not only be a strong advocate in litigation, but also a settlement advocate at mediation and let them know every attorney doesn't have that skill due to the time-honored roles attorneys are accustomed to having.

I typically find quality counsel to be very helpful. I typically find that, at times, even quality counsel needs my help to work with the client. I also find non-quality counsel to be problematic, however, low competency counsel is problematic not only at mediation, but throughout whatever process is place.

Finally, we need to stay vigilant about continuing to educate the Bar...

Vickie, though I've already tweeped it to you, let me just reiterate my appreciation for you and the many great blogs you post, including this one which I think, is one of your best.

Joe Markowitz - January 18, 2010 3:14 PM

Lee's comment provokes another thought. I think lawyers only get in the way of settlement when they are putting their own (perhaps short term) interests ahead of their client's interests. If lawyers are focused on doing what is best for their clients, they do not get in the way of settling cases that should be settled, because they should have at least as good and probably a better appreciation of when settlement is in the best interests of their clients.

Gustavo Angelo - January 20, 2010 5:20 PM

I really enjoyed this article by Victoria Pynchon. I read the other comments and appreciated their insight and comments too, but when I began reading the article I thought it was another lawyer justifying the way some attorneys behave during mediations.

When I read the phrase "We're all in this together," and saw the video clip, I realized the inner message of how we see people and form our assessments of that person without understanding who that person really is, their beliefs, or what their values might be. During last Sunday's Mass, the pastor also pointed out that each of us has a unique talent or gift, different from another's talent, and that we need to find a way to use our special talent for the collective good of all people. Victoria's article helped me appreciate the insight attorney's bring into mediation and the benefit of incorporating the strength and talent of the attorney during the mediation process.

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