“This case would settle if it wasn’t for that darn lawyer.” I’ve heard it said more than once, and sometimes it’s true. After hours of mediation—just when a client seems ready to accept a reasonable settlement offer that, while not perfect, will resolve the dispute fairly and put an end to the uncertainty, conflict, and expense of going to trial—the lawyer takes over.
They might scoff at the other party’s offer, call it insulting, list some facts or rattle off some case law that they assure their client will win the case at trial, causing the client to retrench. The lawyer isn’t in mediation mode; they’re litigating, focused on being a zealous advocate and fighting to win the case whether their client wants to or not, ignoring or oblivious to the fact that their client is ready to accept a compromise and move forward with their life.
“[A]dvocates sometimes fail to see what mediation… can be and approach it as what they expect it to be,” according to Stanley Zamor, a Florida mediator.[1] “They expect a fight where there must be a winner and loser.”
Are you that lawyer? Well, don’t be. Just as mediators shouldn’t impose their will on the parties to a dispute, lawyers shouldn’t be the monkey wrench in the works that prevents a self-determined client from accepting a fair settlement offer or derails the mediation process altogether. Of course, lawyers are supposed to give legal advice and make sure their clients make informed decisions, but it's the client’s decision whether or not to settle and under what terms, not the lawyer’s.[2]
As a lawyer who’s also a mediator, I know it’s not always easy for lawyers to switch from litigation to mediation mode, but it can make a huge difference in making the mediation process successful.
For more information or to schedule a mediation, contact Jeff at (206) 397-0020 or jeffsmootlaw@gmail.com. I look forward to working with you!
Copyright © by Jeffrey L. Smoot.
[1] Stanley Zamor, “In mediation, is ‘expecting’ the wrong approach?” Florida Sun Sentinel, August 20, 2023.
[2] RPC 1.2(a): “[A] lawyer shall abide by a client's decisions concerning the objectives of representation and … [a] lawyer shall abide by a client's decision whether to settle a matter.”
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