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.
There is nothing necessarily wrong with attorneys advocating their clients’ position to a limited extent in mediation. According to experienced mediators, the most persuasive communicators in mediation spend about ten percent of the time advocating their viewpoints. See Betsy A. Miller & David G. Seibel, Untapped Potential: – Creating a Systematic Model for Mediation Preparation, 64 J. Disp. Resol. 50, 53 (May-July 2009). However, many attorneys cling to the standard philosophical map and spend far too much time advocating legal positions to the disadvantage of both themselves and their clients.
When attorneys focus too much on advocating their clients’ positions in mediation, they present their opening and comments to the mediator as if the mediator were a judge or the jury, and attempt to persuade the mediator that their position is correct. In doing so, they often overlook the interests of the other party, and lose sight of the fact that it is the other party and not the mediator who needs to be persuaded. See Tom Arnold, 20 Common Errors in Mediation Advocacy, 13 Alternatives to High Cost Litig. 69, 70 (May 1995).
“Tit-for-tat” is the tactic of modifying another party’s behavior by providing a reward when there is cooperation and punishment for noncooperation. While this tactic, if properly utilized, can help to modify an opponent’s behavior and illicit cooperation in mediation, it can easily backfire if it is incorrectly applied or if its intent is misunderstood. See Dean G. Pruitt & Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement, 70-71 (3d ed. 2003). For example, if two attorneys employ tit-for-tat in a negotiation, without making their intent known, the tactic can result in a chain of punishing, retaliatory behavior, which dramatically escalates the dispute.
In order for a threat to be effective, the harm must be worse than any gain from compliance, and it must be credible. Threats can be very effective, cost nothing if they work, can always be taken back, and are often consistent with an individual’s sense of justice. However, threats are generally resented and often destroy relationships by creating distrust. Moreover, fulfilling a threat can be very expensive and time consuming, and can escalate the conflict. See id. at 71-75. The most common threat made by attorneys in mediation, of course, is to take a case to trial.
Coercive commitments are escalated threats, indicating “I have started doing something that punishes you and will continue doing it until you conform to my wishes.” Id. at 75. This tactic is similar to playing the “game of chicken,” where both parties may be substantially harmed if one party does not relent. Utilizing this tactic, the weaker party is generally in the stronger position, especially where the weaker party has “nothing to lose.” Coercive commitments often result in conflict escalation, where neither side can change its position without losing face. See id. at 75-79. For example, in a divorce case, an attorney may use a coercive commitment, with authority from the client, and threaten the opposing party to either accept an unfair settlement offer or all joint assets will be spent to fight any different division of assets.
It is never appropriate behavior for an attorney to initiate or instigate violence. Unfortunately, it does occur. In 2006, the Utah State Bar conducted the first statewide survey of violence against the legal profession in the United States. See Stephen D. Kelson, Violence Against the Utah Legal Profession – a Statewide Survey, 9 Utah Bar J. 4, 8 July/Aug. 2006. The results presented a startling picture of the level and kinds of violence experienced by members of the Utah Bar, including incidents of violence perpetrated by opposing counsel. Some reported examples include:
• Hit by opposing counsel in a deposition, requiring a hospital visit.
• “In the heat of the moment after a hearing where opposing counsel lost, opposing counsel grabbed me by the tie and tried to drag me out of [the] courtroom to discuss the matter further.”
• “Opposing counsel suggested we step out into the parking lot to settle the matter at issue.”
• “In the federal courthouse…I was threatened by oppos[ing] counsel in the elevator with a weapon.”
• “Opposing counsel made threats against counsel and client suggesting damage to property and person…attorney subsequently disbarred.”
• “On one occasion I was physically assaulted by another attorney outside my office.”
It goes without saying that violence in mediation is unlikely to promote resolution.
The Unfortunate Results of Employing Contentious Tactics in Mediation
Attorneys who employ contentious tactics in mediation often believe they gain a professional advantage by demonstrating resolve. Instead, such advocacy results in the escalation of the dispute, poor decision making, and the failure to achieve their clients’ interests.
Too much advocacy during mediation can harm the potential of reaching resolution. It wastes the opportunity to learn helpful information from the other party and to reach a mutually acceptable and swift resolution of the dispute. Too much advocacy also results in attorneys and their clients “anchoring” (placing over-reliance on a particular fact or piece of information) and becoming overconfident in their own view of the dispute, resulting in decision-making errors that undermine otherwise potential resolutions. See Donald R. Philbin Jr., Decisional Errors: Why We Make Them and How to Address Them, 64 J. Disp. Resol. 64, 66 (Nov.-Jan. 2010). Having created anchors, attorneys lock themselves and their clients into their positions and subsequent offers, from which they find it difficult to move. See Douglas E. Noll, Mediation: The Myth of the Mediator as Settlement Broker, 64 J. Disp. Resol. 42, 48 (May-July 2009). Moreover, over-advocacy often results in the escalation of emotions and the untimely termination of mediation.
It is important to keep a clear head and a professional distance from a dispute to properly evaluate your client’s position in mediation. The more contentious a dispute and mediation becomes, the more likely an attorney becomes emotionally involved and entrenched in positions, which can lead to decision-making errors. A 2008 study of 2,054 California civil cases, decided between 2002 and 2005, examined whether, and under what circumstances, the parties did better at trial than they could have through settlement. The study showed that in only 15% of the cases, both sides did better at trial than their last settlement offer before trial. On average, in 60% of the cases, plaintiffs did worse at trial than the last settlement offer, and in 25% of the cases, defendants did worse at trial than the last settlement offer. See Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients 42-45 (2010). A significant step to overcome decision-making errors in mediation is to seek independent views, keep emotions in check and examine the facts, recognize that circumstances matter, and consider your alternatives. See id. at 107-08.
Contentious tactics are overwhelmingly counterproductive in mediation, create bad feelings between counsel and the parties, cause opposing counsel and parties to react and strengthen their resolution to “fight it out,” and inevitably lengthen the time it takes to otherwise come to a resolution. These tactics often produce a worse outcome. When an attorney is going to attend mediation, the following recommendations should be used to avoid falling into the pitfalls of contentious tactics.
Prepare for Mediation
According to the author and mediator William Ury, “Most negotiations are won or lost even before the talking begins, depending on the quality of preparation.” William Ury, Getting Past No: Negotiating Your Way From Confrontation to Cooperation 16 (1993). Many attorneys still only have a general understanding of mediation and haven’t taken the opportunity to educate themselves about the process. It is more difficult to adapt to the philosophy of mediation when you don’t understand the process. A decision to “wing it” at mediation by just showing up to trade numbers is not zealous representation of the client, is unproductive and regularly backfires.
Attorneys who fail to educate themselves for mediation similarly fail to educate and prepare their clients, making the mediation process more difficult and less beneficial for the parties. Attorneys should prepare themselves for mediation by educating themselves about: (1) the mediation process in general, (2) the attorney’s different philosophical role in mediation as opposed to litigation, and (3) how the specific mediation will be conducted, and the roles of the participants. With this foundation, attorneys can then educate and better prepare their clients for mediation, evaluate the best alternative to a negotiated agreement (BATNA) and the worst alternative to a negotiated agreement (WATNA), and plan their negotiation strategy.
Focus on Interests
A central role of an attorney is the ability to communicate and express his or her clients’ interests (why they want particular options). Attorneys who focus on advocacy commonly lose sight of the interests in the case, and anchor themselves in extreme positions. Attorneys who focus on their clients’ interests permit their clients to have more control of the outcome in the dispute and to reach an acceptable resolution.
Don’t Resort to Uncivil Contentious Tactics
The Utah Standards of Professionalism and Civility provide a baseline for attorney conduct. Where some attorneys might believe that employing uncivil contentious tactics will give them “the edge” and help them “win” in mediation, such is not the case. As discussed by Justice Richard D. Fybel of the California Court of Appeal, for District Four, Division Three (Santa Ana): “The Rambo, ethically-challenged lawyers are not better lawyers and do not achieve better results for their clients.…People are not persuaded by obnoxious or unethical tactics. Intimidation is overrated as a litigation tool.” Justice Richard D. Fybel, Honest Lawyers Make Good Lawyers: Thoughts on Ethics and Civility in the Legal Profession, 19 Utah Bar J. 7, 11-12, Nov./Dec. 2006.
Contentious tactics used by opposing counsel do not justify reciprocal responses, and escalate rather than resolve conflicts in mediation. Take the high road for both you and your client. When such conduct occurs in mediation, request ground rules to the mediation, drop your volume, take a break to cool down and check yourself from replying in kind, or request a caucus to allow the mediator to address the uncivil behavior. If necessary, request that the parties be separated for “shuttle mediation,” allowing the mediator to filter out the offending attorney’s uncivil behavior. Most importantly, focus on your client’s interests.
Nearly every legal dispute has its distinct challenges. Attorneys who rely upon and cling to the standard philosophical map in mediation add to these challenges and unsuspectingly obstruct the mediation process by intentionally and unintentionally employing contentious tactics. The failure to adapt to the mediation process and employment of contentious tactics regularly results in inadequate preparation, over-advocacy, and over-aggressive and uncivil behavior. This only prevents the client from potentially achieving his or her interests through mediation. By preparing for mediation, attorneys will better understand the differences between the mediation philosophy and the standard philosophical map, adapt to the mediation process, instead of falling back on and employing uncivil contentious tactics in the mediation process, and better serve the client’s interests in mediation.