by Stephen D. Kelson
Most litigators would agree that mediation is a helpful process in the attempt to resolve disputes before they reach trial. However, many attorneys often unsuspectingly obstruct their clients’ ability to achieve resolution of their disputes in mediation, and thus prolong legal disputes and underlying conflicts, due to their assumed role and inability to adapt to the mediation process.
The following discussion briefly examines: (1) the attorney’s role and philosophical assumptions in legal disputes; (2) the attorney’s philosophical conflict with mediation; (3) contentious tactics employed by attorneys; (4) the unfortunate results of employing contentious tactics in mediation; and (5) simple recommendations to help attorneys make the most of mediation and better serve the interests of their clients.
The Attorney’s Role and Philosophical Assumption in Legal Disputes
In general, by the time parties seek an attorney, they have already invested themselves emotionally and financially in their legal dispute. It then becomes the attorney’s job, as a provider of professional services, to define the needs of the client. See William L.F. Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…, 15 Law & Soc’y Rev. 631. 645 (1981). The method attorneys apply to define these needs is instilled in them through law school training and has been characterized by Leonard Riskin, Professor of Law at the University of Florida Levin College of Law, as “the lawyer’s standard philosophical map” (standard philosophical map). Chris Guthrie, The Lawyer’s Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering, 6 Harv. Negot. L. Rev. 145, 155 (Spring 2001). This philosophical map is governed by two significant assumptions: (1) that disputants are adversaries, where one must win and one must lose and (2) disputes may be resolved through the application of law to facts of a given case. See id.; see also Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29, 36 (1982). This philosophy is instilled in law school where attorneys are taught “to put people and events into categories that are legally meaningful, to think in terms of rights and duties established by rules, [and] to focus on acts more than persons.” Riskin, 43 Ohio St. L.J. 29, 45.
In the practice of law, the assumptions of the standard philosophical map are regularly encouraged through regular application, the legal process itself, and procedural rules and the professional standards. With these experiences and standards, attorneys apply themselves to a given case by primarily behaving in an evaluative manner, focusing upon the parties’ rights and duties under the law, determining the strengths and weaknesses in legal positions, and deciding how to exploit these positions to the clients’ advantage. The duty to zealously represent clients by focusing upon disputes in an evaluative manner discourages attorneys from concerning themselves with their opponents’ situation and the ultimate results caused by the application of the standard philosophical map. Victory by attorneys on both sides becomes solely defined by the size of the monetary judgment. See id. at 44.
The standard philosophical map may also affect the manner in which attorneys live their personal lives away from work. Researchers have concluded that attorneys generally apply “‘a cognitive and rational outlook’” on the world, have underdeveloped emotional and interpersonal skills, and “tend toward an adversarial orientation.” See Guthrie, 6 Harv. Negot. L. Rev. 145, 156 (citation omitted). Whether or not the attorney’s standard philosophical map is the cause of these deficiencies, it arguably reinforces them, and provides attorneys the excuse and/or justification that “this is how an attorney acts.”
The Attorney’s Philosophical Conflict with Mediation
Attorneys often find themselves confused by the mediation process after they have spent years learning and honing evaluative and adversarial skills which are based on the standard philosophical map. While the standard philosophical map assumes that disputants are adversaries, where one must win and one must lose, and disputes are resolved through the application of law to facts of a given case, mediation has its own distinct philosophy, which assumes that (1) parties can work together and cooperate to create solutions in which each gains and (2) the parties can resolve their conflict without being limited by strict rules of procedure and substantive law (the mediation philosophical map). See Riskin, 43 Ohio St. L.J. 29, 34.
My personal experience has revealed that attorneys who are ingrained with the standard philosophical map react to mediation in one of three ways. First, some attorneys adapt to the circumstances once they gain an understanding of the difference between the philosophies of litigation and mediation. This ability to adapt is usually due to each attorney’s personal disposition, as well as training in alternative dispute resolution and prior experiences in mediation. Second, some attorneys’ “fight or flight” mechanism appears to kick in when they are confused and unprepared for the philosophical differences that are required in the mediation process. These attorneys revert to what they know best: the standard philosophical map. Third, some attorneys fail to distinguish the difference between the philosophical assumptions between litigation and mediation, or simply refuse to set aside any part of the standard philosophical map, and proceed in mediation as if it were a trial.
Contentious Tactics Employed by Attorneys
Reliance upon the standard philosophical map often undermines mediation’s overarching purpose, which is to resolve disputes. While attorneys and clients alike can create any number of challenges, the application of the standard philosophical map prior to and during mediation often creates and fosters serious pitfalls which prevent the parties from achieving resolution. One of the most serious pitfalls created by the standard philosophical map is the employment of contentious tactics, which regularly escalates the conflict between the parties, and the legal dispute, instead of resolving it.
When attorneys rely on the standard philosophical map, they often intentionally and unintentionally adopt a hierarchy of contentious tactics to achieve victory against the opposing party and counsel prior to and during mediation. Some of these contentious tactics include: (1) integration, (2) promises, (3) gamesmanship, (4) shaming, (5) persuasive arguments, (6) tit-for-tat, (7) threats, (8) coercive commitments, and (9) violence. These contentious tactics are often applied sequentially; however, some tactics may be skipped as a conflict escalates. See Dean G. Pruitt & Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement 63-84 (3d ed. 2003); see also Stephen Potter & Frank Wilson, The Theory and Practice of Gamesmanship: The Art of Winning Games Without Actually Cheating (1948). Arguably, the hierarchical order of contentious tactics may differ based on how the tactics are employed. While some of these tactics are not inherently inappropriate, others – and the methods in which an attorney employs them – both violate the Utah Standards of Professionalism and Civility and can be destructive to achieving resolution of disputes in mediation.
Integration is a tactic employed in an effort to “butter-up” an opposing party or counsel through flattery, charm, and guile, with the intention of coercing the party into concessions. Some methods used to achieve this end are (a) exaggerating admirable qualities in order to make it difficult to be disliked, (b) expressing agreement with another’s opinions to express similar attitudes, (c) giving “favors” to be liked, and (d) using indirect methods of “tooting their own horn.” See Pruitt, Social Conflict at 65. For example, an experienced attorney might use this tactic by making exaggerated compliments to a less experienced opponent, sharing “war stories” about many successful trials, and recommending a “joint” course of action based on the experienced attorney’s knowledge of similar cases. If an opponent is unaware this tactic is being employed, it can be a very cheap and effective way to resolve a dispute. However, if detected, it can backfire by diminishing trust between counsel and escalating the dispute. See id.
Promises provide an exchange for compliance, which creates a sense of indebtedness to the one who makes the promise. However, successful promises can be very expensive, tend to require increased rewards in exchange for further compliance, can create undue dependence, and are often costly to break. Moreover, failing to provide a sufficient promise can result in failing to resolve a dispute and offending an opponent. See id. at 67-68.
Gamesmanship is far too common in the practice of law, and is regularly employed with the hope of pushing the other party and their counsel off balance. Some common examples of gamesmanship include preparing and filing a complaint which contains unfounded allegations in order to increase the cost of litigation, serving unnecessary discovery requests, the failure or refusal to provide requisite discovery responses, delay, name calling, offensive statements, etc. Attorneys regularly see through these tactics, resulting in a rapid escalation of the dispute.
Shaming is the act of causing another to feel the emotion of shame, often by publicizing inappropriate conduct. While shaming is a highly effective way to obtain compliance with social norms and the standards of practice, it often backfires. If a party perceives the shaming as unjustified, it can result in anger and aggression, and can damage the relationship between the attorneys and parties. See id. at 69-70. For example, it is unusual for an attorney not to take offense when faced with a Rule 11 motion. Where the relationship between the attorneys is unsound before a Rule 11 motion is filed, the motion often results in anger, a professional grudge, and escalation of the existing dispute.