Jeff Trueman: What happened to the problem-solving lawyer?

Jeff Trueman

Why do so many litigators grasp defeat from the hands of victory at the mediation table? In other words, why do some lawyers revert to trial arguments or bicker with each other during settlement discussions, even when the parties are making progress toward resolution?

During a recent mediation, in joint session where the parties were talking to each other (in a nice way) and working toward resolving the litigation, I had to remind counsel, over and over again, to stop infighting and posturing. One potshot led to another. Lawyers on both sides would not let it go, even though their clients were visibly frustrated by the bickering.

I appreciate the professional roles everyone must maintain at the table. But lately, I’ve been wondering what happened to the problem-solving lawyer? Perhaps some lawyers believe that “winning” a case on the law is the best way to deliver value to clients. In light of the relatively small number of trials compared to cases filed, however, I’m not sure that’s the problem.

Moreover, many clients have interests that are much broader than what’s expressed in the legal papers. Victory in court may not be victory in the life of the client. Maybe clients ought to consider other measures of success such as the average life of a case, average total costs incurred and actual results compared to projections. It’s tough to improve performance that cannot be measured and analyzed over time.

Perhaps some lawyers just don’t get along. Once hostility gets started, it escalates and it’s hard to stop. But lawyers and clients have an interest in establishing and maintaining good working relationships with each other, otherwise it costs everyone more time and money.

It seems that we still live in a legal culture that is fairly traditional in the sense that lawyers are afraid to express a desire to negotiate or cooperate because others might interpret it as a sign of weakness. No doubt, we live in a competitive world and our legal system is adversarial by design. Few people make themselves vulnerable, even in our personal lives.

But an invitation to negotiate is not necessarily a sign of weakness. It can be a smart way to manage risk, resources, and client outcomes. How counsel manages the discussions that lead up to and include the negotiation is more important than the mistaken impressions that others make and maintain about the case.

Although some litigators may prefer not to be peacemakers, they occupy that role more often than not. Ironically, many parties return to the bargaining table after someone “wins” the war at trial. Thus, since litigators are settling cases, please allow me to offer a tool that will reduce the rancor and generate movement at the same time: cooperation. It can be an effective way to generate leverage. No need to worry about appearing vulnerable if you chose a conscientious mediator who will make sure the litigator-turned-peacemaker looks great to the client.

Be prepared, however, for the distinct possibility (if not probability) the other side will react negatively and devalue your cooperation. Stay calm and don’t worry; it’s normal noise. When we get something we want, we often react with comments like, “It’s not enough”; “Why didn’t they make this move earlier?”; or “I don’t trust this.” This is a common cognitive bias called “reactive devaluation” and it is usually manageable.

The real problem for litigators in mediation is the lens through which they view the case. It is impossible to get an objective assessment of a dispute from someone who has an interest in the outcome. Most of us have no trouble flagging and ignoring self-interested predictions in every other walk of life. Self-interested case assessments will not diminish anytime soon but I’m hopeful counsel might manage conflict as a problem that can be solved instead of a justification for ego-driven acrimony that fails to accomplish anything productive.

Not every “difficult” lawyer is selfish or addicted to drama. As we know, some clients have extreme and unrealistic expectations that can put pressure on lawyers to be more aggressive than necessary. Instead of escalating the tension by reacting to posturing and backbiting, perhaps counsel can look for ways to move the issues forward and deliver what is needed, calmly and patiently. The difficult lawyer is not the problem. Rather, it is our own inner reactions to him or her. Try breathing through it (a technique that helps me) and keep the big picture in mind.

Positive working relationships with opposing counsel can ease the way for a problem-solving approach to settlement discussions that will save clients time and money, producing good results on a consistent basis.

Jeff Trueman is a commercial mediator and can be contacted at [email protected]