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Legally Speaking


Issue: December, 2006
Author: Jay A. Gilbertz

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Mediation Isn't a Band-Aid for Poor Lawyering

The problem is not novel or new. “None love the messenger who brings bad news.” Little has changed in the 2,500 odd years since Sophocles identified the simple fact that we dislike the person who bears ill tidings. While it may not be an analytical or logical reaction, it is a predictable part of human nature.

Instinctively we know this to be true, and it creates a counter response in humans. This reaction, however, is logical – if the news is bad, no one really wants to be the messenger. We are like teenagers who get a bad report card on Friday. We look for any excuse or justification to avoid telling our parents until Monday. Then again, Mondays are always bad, maybe Wednesday (night) would be good.

Attorneys are no different; we want our clients to like us. We want our clients to think that we are fine attorneys doing our best to negotiate or litigate for a good outcome and maybe even cut that proverbial fat hog for them, if the opportunity is presented. At the same time, one of the obligations we accept as lawyers is to renounce our human tendency to avoid the distasteful task of conveying unwanted information. Our professional obligations and our human tendencies are in conflict.

The need to overcome our natural inclinations is so important that we have an ethical rule on the issue. In our role as “advisors” we are ethically bound to tackle this problem. The comment to Rule of Professional Conduct 2.1 states that: “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. . . . a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” While the obligation seems uncomplicated, it will always be unpleasant in some degree to convey bad news, and there is a strong temptation to delay the task.

I have found that it is much easier to impart this type of message early in the attorney-client relationship. When a new client first comes in my office, it may not be a fun job to tell them that his “great” case has some significant legal or practical flaw. Yet providing accurate and straightforward advice is easier when we don’t really know the person. Few lawyers have trouble dispensing bad news under these circumstances.

However, as the representation or case proceeds, we develop a more personal relationship with our clients. We begin to think of them as people and we begin to believe more and more in our client’s case. By nature, lawyers are competitive, and during the process we can get personally (and financially) invested in the client’s cause or simply driven by the idea of winning. At times, we may even begin to dislike the other party or even the lawyer representing them.

To complicate matters, our client’s opinion of us develops as we represent them. Clients start telling us what exceptional, ethical and committed attorneys we are. These are always gratifying compliments, but they can also create feelings of comradery and commitment to the “cause.” Even if such accolades do not cloud our judgment, they accentuate our natural reticence to deliver unwanted information.

From my perspective, this problem is greatest when a case that seemed to be going well takes a sudden and unexpected turn for the worst. If the reversal of fortune is the result of some previously unknown or unaccounted-for issue, we anticipate that the client may well blame us for the new development. Under these circumstances, the temptation to shirk being the messenger is the greatest.

Mediation serves a good purpose in many circumstances. It can provide a plaintiff with a cathartic experience as he or she explains the impact an event has had on his or her life, and have those complaints acknowledged by a judge-like mediator. Likewise, a defendant has the opportunity to respond to accusations that can be personally offensive or demeaning to him and have his position acknowledged. In this way, mediation can facilitate a resolution by being a surrogate for the trial process without the associated expense, delay and risk. However, the potential for mediation is not justification for an attorney to abdicate his or her duty to advise the client of unpalatable facts, law or developments.

As an advocate, I have attended more mediations than I care to remember, and I have acted as a mediator in a handful of cases. Unfortunately, in a number of instances, it has appeared to me that attorneys have abandoned their obligation as an advisor when a case or the facts have taken a wrong turn. Rather than addressing troublesome facts, developments or risks directly with the client, they rely on the mediator to perform this task and spare the attorney the unpleasantness. At worst, this tactic will doom the mediation. At best the mediation will succeed, but the client will usually leave angry with the mediator, the process and his or her own lawyer. Even though the lawyer dodged being the messenger, he still took a bullet in the end.

While mediation is an excellent option in many cases, it does not supplant our obligation to properly advise our clients. When these more difficult situations arise, attorneys must take the time to be consciously aware of and think about all the forces that act to dissuade him or her from fulfilling the duty of bearing bad news. Once the forces that affect the lawyer are tamed, good planning and preparation can make the delivery process less painful.

Prepare for your meeting as if it were an appearance in Court. Start by reminding your client that your job is not to blindly “fight” for them, but also to give them a good, detached assessment of the legal battlefield as it develops. Like any battle, the field conditions and circumstances change, and this requires assessment and reassessment. Plan a good, easy to understand explanation of the things that have changed or the unexpected circumstance that has arisen. Take the time to explain why the change makes a difference and how it impacts a detached assessment of their case. If the situation is an unexpected development, explain why the situation was not or could not have been anticipated.

Planning must also account for the fact that the client will tend to blame the messenger – you. Take the time to think about and anticipate the questions the client will ask and be ready with good concise answers. Know in advance that the client is going to offer objections, arguments and excuses to combat the bad news or deflect its implications. If there are strategies or avenues to limit the impact of new developments, be ready to discuss these with your client, but try to keep expectations realistic.

When we were kids, the Band-Aid had really strong glue so it wouldn’t fall off. It did its job well – so well that removing the bandage could be a painful experience. Anyone who has removed a bandage from a hairy arm can tell you that you are better off to grasp the bandage firmly and rip it off. If you approach the process timidly and without resolve, slowly pulling the bandage back inch by inch, you will just make the process more painful. The same is true for bearing bad news. Let your client know “this is going to hurt a little” and then tackle the task directly.

Jay Gilbertz practices law with his partners at Yonkee & Toner, LLP in Sheridan, Wyoming.

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