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What Would You Do if….
A lawyer tells you that he has complete control of his client and that she will accept his recommendation. You suspect the client will not be as accommodating, but the attorney insists you don’t need to meet with his client.
Tracy Allen: I won’t mediate with attorneys who don’t allow me to work with them in the presence of the client. I am very careful to honor the atty-client relationship and never come between a client and an atty. I also won’t take a proposal to the other side unless I have a clear approval from atty and the client. If we are working on “I can recommend it to my client and I think my client will agree” then the proposal comes with no assurances.
Gig Kyriacou: It is important for the mediator to have some contact with all of the parties, even if this is limited to introducing yourself and discussing the process. I think this all starts with the trust relationship that you build with the attorneys. If the attorney feels that you will not undermine their authority, they will almost always honor a reasonable request to have access to the client. In those occasions when they are reluctant, you must walk through the things you will be addressing with the client and seek their input and permission as to how to proceed. I have never been denied access to the client when I have followed this approach.
Mike Young: This one is more difficult because you are now getting away from Easy Negotiation Strategy and into Hard Mediation Ethics. When must a mediator ensure that the actual client (not the mediator’s client — i.e., the lawyer who hires him — but the actual litigant trying to get his or her life back in order) is involved in the process and cognizant of what is going on? Or when can the mediator simply accept the attorney’s representation that the client is on board? It’s an easy answer from an academic perspective; I can hear my Mediation Professor’s wise words back at the Hogwart’s School of Mediation: “It is the individual party’s dispute, and hence the individual party’s resolution. That party must be part of the process and must make the ultimate decision.” But this ignores reality where many parties, particularly unsophisticated parties or those not familiar with our legal culture, hand their decision-making responsibilities over to their counsel to negotiate for them the best deal possible. It makes our lives as mediators much more difficult when we can’t tell whether the individual party is really THERE in mind and spirit, or is there only in body. I think it is incumbent that we mediators ensure that the individual party knows what is going on at all times, and that if she is surrendering her negotiating and ultimate decision making authority to her counsel, that she is doing so knowingly and voluntarily. We mediators run a risk when we do this — we can tick off the very counsel who hires us who may think we are meddling in his attorney/client relationship, and such can be a career inhibiting move if done too often. After all, even mediators need clients. On the other hand, mediators also run a risk of losing a settlement by blindly following the attorney’s representation of client control when it turns out that the control is not as complete as the attorney expected and the now-disenfranchised client walks out the door. There is also that ethics thing — allowing the actual disputants to be in charge of their own dispute and resolution. It is a balancing act to be sure, but one that should be weighted heavily in favor of ensuring client involvement, even at the risk of upsetting an attorney or two. (Besides, what’s a day in mediation without an upset attorney or two, I mean really.)
What Would You Do If…..
A party receives what it considers a small counter-offer and refuses to make a another offer/demand unless the other side substantially changes its position.
Tracy Allen: Which response will provoke the customary “I’m not bargaining against myself.” In order to make an intelligent counter, the non-responding, stubborn party usually needs information. Aside from being insulted by the offer and thus “pissed off”, it’s too easy to dig in and not engage. Why not try a different approach? Why not go fishing for information to see if you can get any clues on where the opponent is going or wants to end up? How do you suggest we go fishing? What bait should we use? What do you need to know? How best to get that information? It’s ok to send a signal that you are dismayed by the offer and you can show that dismay in your response as well as in the message the mediator takes with it. This is a situation where parties have to allow the process, i.e. the dance” to get underway. They have to set a rhythm and begin the dance. Unless the stubborn party came with no intention of exploring settlement, one can usually get
something moving. We also know that there are two kinds of responses to a perceived lousy offer- an in kind response and a defective response. The refusal to respond is a defective one. An in kind response would be to make another counter and if that is again met with what is perceived to be a defective counter, then the stubborn party can become “defective” too. One or two attempts to extend the olive branch usually doesn’t bite you in the a– if the parties came to make a deal you can always pull back in later rounds. Use the mediator as well to send the proper negotiation messages so the dance can proceed.
Mike Young: There is no one answer to this. It may be that this is exactly the right move to reset the bidding and get the parties into a constructive negotiating zone. On the other hand, maybe this is just a power play that is destined to send the process swirling down the toilet. Or maybe one party is just testing the resolve of the other to see what will happen. As this tactic generally occurs early in the process, I see my job at this stage to keep the music playing and the parties dancing, even if there is a little toe-stomping going on. Let’s make sure the party considering the Non-Move response has thought it all the way through, has considered the options and the possible consequences, understands the risks and potential payoffs, and makes the Non-Move knowingly and intentionally. And if that party, after due consideration, wants to make the move — or non-move — I would make sure the Non-Move is presented in a way that expresses the message…but keeps the parties dancing (I know, it’s a sloooow dance at this point). A Non-Move obviously has the serious potential of backfiring, but if it is an appropriate response under the circumstances, the message should be able to be presented without derailing the train. (I love the mixed metaphors.)