When Lawyers Pursue Peace

Some years back, I was walking around my neighborhood when I was suddenly hit by a car making a right turn.  While toppling over its hood like a cartoon character, my fleeting thought was, “Well, that’s mighty inconvenient.  Now I know how plaintiffs must feel.” Back then, as a young litigator, I thought good lawyering was single-minded, requiring an “us versus them” approach.  Compromise was a last resort. 

After my accident, though, I found myself in the unwelcome position of being hurt and needing some compensation.  It was a rough process, but I thankfully recovered and later, after embracing my status as an injured claimant, I settled my case.  Looking back, my accident gave me much-needed clarity about how my views had to evolve to accommodate my new reality.    

We learn quickly that not every case should be tried.  Early on, I believed in principle that most cases should settle.  But often, I became so preoccupied with pushing my case forward to trial and arguing both sides to clients and other stakeholders, that I didn’t spend enough time forming my own assessment of the case, which is vital for someone managing and potentially taking the case to trial. 

When I finally did so, I struggled for the right perspective. 

Should I argue zealously as if I were in trial?  Or should I adopt a more conciliatory tone, as one wanting to settle?  What risks was I willing to take within the bounds of my client’s consent?  What did a principled concession mean for me and my client?  More than once, I found myself of two minds -- negotiating to settle at the same time I was mired in trial prep, a common occurrence for busy litigators. 

To preserve my sanity, I gradually developed a way to capitalize on the best and compensate for the worst parts of my cases.  As mediator, I’ve been fortunate to work with many skilled attorneys that navigate this path very well. And because every case I mediate has its imperfections, I’ve gotten to observe attorneys who deftly search for compromise in mediation without lessening their convictions. 

Here are some traits that stand out amongst these effective advocates.

First, attorneys who pursue peace in mediation are, at their core, problem solvers.  They seldom devote time arguing like they were in court before a jury.  They focus instead on what principled concessions they can make, what information they can exchange with the opposing side and what conditions can provide the greatest traction for settlement.  These lawyers are not focused on a single position; rather, they are committed to creating options for a mutually beneficial outcome.   

Second, attorneys who seek resolution tend to be active listeners and clear communicators.  Because mediation aims to find jointly favorable ways of meeting the parties’ needs, the lawyer’s role is to help clients discern their needs from their wants, which are not always clear.  For example, some clients want what trials rarely provide – control and certainty, not realizing that a settlement can provide both stability and a firm outcome.  Likewise, some clients expect that litigation will produce a moral victory when, in reality, the issues and outcomes can be gray and unclear. 

Lawyers who seek resolution are generally attentive to their client’s true wants and needs.  They often ask thoughtful questions, counter with reasonable opposing viewpoints, and listen without judgment, reframing issues to increase clarity and direction.  They strive to communicate their client’s needs to the mediator in clear and direct ways that generate settlement options. 

Third, lawyers who facilitate settlements search for common interests that align with all the parties, not just their client’s.  Just as persuasive lawyers tailor their arguments to sway the judges they appear before, effective lawyers in mediation generally seek appealing options that all parties, not just their clients, will likely find acceptable.

There are probably many more ways to foster accord in mediation while still honoring a client’s wishes and goals. 

What approaches have helped you pursue peace for your client most effectively?  

I hope these reflections will encourage the most keen litigator that skilled representation is not one-dimensional, but rather, a committed process of identifying a client’s needs and exploring different pathways of meeting them.