By Mediator Lee Wallace
If you cannot think of a single time you have been shocked and infuriated by the conduct of the opposing lawyer — well, you are probably still in your first year of practice.
Litigation, by its nature, is contentious, and older lawyers will tell you that it is even less civil today than when they started practicing. If you have been in a case where the opposing lawyer is hostile in letters, offensive to your client at deposition, and rude on the telephone, then you know exactly what I am talking about.
Part of the problem is that we lawyers are extremely competitive, and I do mean extremely. I like to think that I keep my competitive nature in check, but I once got into a debate over a case at a ladies’ tea party. A ladies’ tea party!
Our competitive natures, honed by years of law practice, can serve us well in litigation. But they can be terrible obstacles to settlement.
In order to successfully mediate a case, we have to shift our mindsets. This shift is especially tough for us as lawyers, since mediation is radically different from what we normally do at work. The more bitter the litigation, the harder it is to stop thinking about how to defeat the other side long enough to consider how to reach an agreement with them.
It may not be pleasant, but the parties can “live with” a really contentious relationship during litigation. In fact, the lawsuit process not only accepts a high level of conflict, it harnesses it to help the judge and jury reach a fair resolution.
The defendant puts his best arguments forward in a motion for summary judgment, and the plaintiff counters with the best arguments for the opposite view. The plaintiff researches and files a motion in limine, and the defendant marshals the case law to oppose it. With a judge to act as referee and make rulings, and a jury to make the final decision, the litigation system works, even with bitter, acrimonious parties.
Mediation Requires a Dramatic Change in Mindset
And then along comes a mediation, and what has been working in the litigation suddenly no longer works. A mediation can succeed only if the parties agree on a settlement.
The plaintiff and the defendant may have a long-running dispute, and it can be difficult for them to lay down those hard feelings, even in the name of settlement.
And while we lawyers may not have been a part of the dispute for as long as the plaintiff and the defendant, everything about the practice of law makes it difficult for us to take off our “litigation” hats and put on our “mediation” ones. Starting in law school, we are trained to take a side and argue for it. After law school, we spend the majority of our workday crafting and honing arguments for our side, and against the other side.
But at mediation, we are supposed to treat yesterday’s enemies as today’s allies. Suddenly the best way to pursue our client’s interests is to reach a beneficial agreement — not prove the other side is wrong. Horror of horrors, we have to actually work with the other side.
My Enemy, My Friend, My Enemy
To complicate matters further, if the mediation fails, today’s allies will again be enemies tomorrow. We will head back into our offices and re-don our litigation hats. We will double down on our efforts to oppose everything the other side does, from pretrial motions to jury instructions.
When I speak of “enemies,” of course I am being facetious to make a point about how contentious litigation can get. But I am not kidding about the fact that, increasingly, cases can get very rancorous.
The Only Solution: Radically Change Your Mindset for a Day
In order to represent your client properly at mediation, you have to be able to be a “mediation lawyer” for at least a day. Both sides have to choose to lay down their arms and work together to reach a compromise.
It is always difficult for lawyers to switch over to mediation mode, but it can feel nearly impossible when you are in the middle of an acrimonious litigation against a hardball litigator. The angrier you get, the less you want to compromise on anything, especially with that litigator.
Next week, I’ll give six tips on what to do when you head into a mediation in a case where the other side has been obnoxious and rude.