Tips from Mediators
How would you advise the young counsel to deal with a client who will not see reason? For example, in caucus an offer is received that the young lawyer recommends. The client rejects it for reasons that appear to be silly, at least to the young lawyer. What role, if any, should the mediator play, in such a situation?
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There are a number of seemingly irrational reasons why a client might reject an offer recommended by a young lawyer. The role of the mediator will depend on the specific reason(s) behind the rejection. For example:
- The client may have strong negative feelings about the settlement, and perceive the “young” lawyer as having insufficient experience and knowledge to be recommending it.
- The client may simply be unreasonable in rejecting what is essentially a good offer.
- The client may seem to be unreasonable in rejecting the offer, but may have some ulterior motive, undisclosed information or purpose. In this case, the client’s rejection of the offer may not necessarily be irrational or unreasonable.
My first step would be to determine the reason(s) behind the client’s rejection of the offer. It may be necessary to do this without the young counsel present. If the offer is a good one and the client is being irrational, I would try to bolster what counsel is advising and get the client to see the wisdom in accepting the offer. If the client is not being unreasonable in rejecting the offer, I would try to facilitate a settlement, in which the client is able to achieve the unstated goal with results that are acceptable to the other side.
To facilitate a successful outcome, it is critical that the mediator understand the motivation behind the initial rejection – which is not always evident from the client’s words or actions.
Joy Noonan, LL. B., LL. M.(ADR), C. Med.
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This doesn’t just happen to young counsel, trust me! Sometimes clients have a lot of trouble
seeing reason. I have had counsel of all vintages look to me before or during a mediation session
for support with a client that is in need of a reality check.
Depending on the case, there are times when the mediator is actually in a better position to do a reality check than the counsel and, done in a strategic way, it can really help to refocus the discussion on interests over positions.
In situations where I have observed clients getting stuck in their positions and having trouble taking good advice, I have found that the best "supporting role" for me to play as a neutral party is in getting the difficult client to "help" me as an "outsider" to understand why the option(s) being put on the table is/are unreasonable. This strategy often opens the door nicely to a re-examination the clients' own of interests versus their position, and of course their BATNA ( Best Alternative Yo a Negotiated Agreement).
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The Law Society requires that lawyers who are mediators make it very clear to the participants in the mediation that they are not there to give legal advice. That having been said, matters settle at mediation often because the mediator is repeating or reinforcing what the lawyers have already told their clients.
I can think of many occasions where clients have taken unreasonable positions in caucus and often the mediator can bring things back on track by reinforcing what the lawyer has already told the client.
This is easy to do when the lawyer is giving good advice to the client. It becomes more problematic when the lawyer is the problem rather than the client, but that is probably an issue for another day. If a client is rejecting the advice of the lawyer for reasons that “appear to be silly”, it would be important to try to gain an understanding as to why the client is taking that position so that the mediator and the lawyer can work to have the client truly understand that the position being taken is probably not in the client’s best interests.
Steven C. Gaon, B.A., J.D., C. Med.
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Clients not listening to their lawyer’s advice is not an infrequence occurrence. Lawyers sometimes walk a fine line between following instructions on the one hand, and discouraging poor decision-making by the client on the other. You have to be careful, though. Clients often don’t want to be told that they’ve got problems with their cases or that their choices may be faulty. An effective mediator can help. In caucus, the mediator can engage the client (and the lawyer) in a candid discussion about risk versus reward and legal costs. This will enable the client to better weigh options and to make optimum choices.
The mediator can also diplomatically play "devil’s advocate” to demonstrate that a certain course of action might lead to a poor result. Sometimes it’s easier for the mediator to play this kind of role than it is for the lawyer, because clients may feel their lawyer is abandoning them if the lawyer pushes too hard for course of action that differs from that which the client initially envisioned.
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Sometimes dealing with our own clients is the most difficult part of our jobs as lawyers. They are the biggest cause of young lawyers turning grey prematurely. When I encounter a lawyer having difficulties getting their client to see reason, I tend to become a little more active in caucus as a means to assist counsel in their attempts to make their clients understand the benefits of a certain position. I try to add support to the advice that counsel is giving the client. At times, I will point out why not following the counsel’s advice may lead to the client’s ruin. Or, I may try to show the soundness behind the advice by showing the client the financial risks connected to
ignoring the advice.
If the client persists in his/her unreasonableness, I may ask to speak with counsel in private, to gain an understanding of what assistance counsel would like to resolve the difficulties. Often, counsel and I can come up with a plan to move the client off an untenable position.
Ultimately, it is the client’s decision whether to accept or reject an offer. That being said, in most cases, an educated client will follow a mediator's advice. The support of the mediator, who also has the benefit of a legal background and experience, will often assist in leading the client to making the reasonable decision.