Be a Beacon Toward a Negotiated Resolution
By Eric Gillett
I am slowly winding down a litigation practice that I began 38 years ago. When complete, I will have transitioned to mediating and arbitrating disputes full time. While I am really looking forward to that moment when I no longer need to prepare for a hearing or a trial, I am enjoying more than ever the few cases I continue to handle and the clients I am honored to represent. I have one particular case that poses significant financial risk to my client and the opposing team of lawyers are skilled and dogged in their pursuit of a result for their clients. At a recent in person hearing, I was introduced to the wife of the lead attorney, who were both from out of State. I was told that after the hearing, they were spending the weekend in the Pacific Northwest to celebrate their wedding anniversary. After the hearing, I was the first to exit the courtroom and again said hello to the lead counsel’s wife. I also waited a few more moments for her husband, my opponent, to emerge from the hearing so that I could wish them both a happy anniversary. After doing so, I went on my way.
Over the weekend, I received a message from opposing counsel thanking me for sticking around long enough to wish them both well. He told me he travels all over the country handling cases and it is rare to experience the civility that I demonstrated that day. He acknowledged what I firmly believe. We can disagree about the facts of a case, the law, and a just result, but we don’t need to take that to a personal level and be disagreeable. It is in our clients’ best interests that we stay above the personal affronts, keep our egos in check, and focus on finding the best solution to the problems presented.
As I thought about the kind note, I wondered, as I often do now, how this relates to mediation strategies. And the first thing that came to mind is professionalism. The “art” of what we do is best displayed when we do it from above the fray. If we put ourselves in the middle of a dispute because we believe advocacy demands it, we run a high risk of becoming invested in a case in a manner that impairs our ability to perform our role objectively. And when we lose objectivity, we become part of the problem rather than a beacon for the solution.
How do we become a beacon for the solution at mediation? The first thing is to approach mediation as a first-class solution to your clients’ problems. Mediation, as I have previously written, is a wonderful tool when it becomes challenging to get two or more parties to negotiate on their own or directly through counsel. A third-party neutral is often the key to open your client’s mind to a solution. You, as the lawyer, are not left alone as a voice of reason. You can find support with your mediator when it comes time to have a “hard discussion” with your client about reality.
But if you do not properly educate yourself and your client about the benefits of mediation, you may find yourself with a client who does not see the value of taking a day or more from their busy schedule to talk with someone about their dispute. You need to sell the process to your client if you expect them to approach mediation with the goal to resolve the matter. Otherwise, you may as well just approach mediation to “check the box” that requires you to participate in alternative dispute resolution before you are allowed to appear for trial. Mediation is not a first class solution if you only go through the motions.
Your attitude will guide your thinking and will encourage your client to think the same. Your point of view is contagious to your client. Most clients depend on their lawyer to tell them whether they are winning or losing, whether the next move is good or bad.
Your attitude also shapes the way your opponent thinks about the case. As mentioned at the beginning of this article, we may disagree with our opponent on the facts, the law and a just result, but if we have demonstrated professionalism throughout, our view of mediation is likely to get a more positive reception by opposing counsel. Optimism breeds more optimism. If you have fostered a positive working relationship with opposing counsel, what you say about resolving a case is likely to matter more than if you have treated your opponent with disrespect and sharp practices.
Another way to be a beacon for a solution is to make opposing counsel happy. It may sound counterintuitive to suggest that you should work to make your opponent happy. Why would you act that way toward someone who is trying to best you on the field of battle? What would your client think if they knew you were being “nice” to the other side? They might be angry with you. They might lose faith that you have their best interests at heart. But that is only if you do not help them understand that it is in their interest that you get along with opposing counsel. You certainly won’t give something to opposing counsel that adversely affects your case, but you can help them out of a scheduling jam, a late filed brief, a blown deadline. Unless you know their mistake is a game changer for your case, that a court is likely to give them a break, consider giving them the grace of your professional courtesy. It will pay dividends at mediation.
This article is about civility in our profession. It is about how civility is better for your client than hostility. We do not need to be angry, and we do not need to be unkind toward opposing counsel. Our role is to stay above the emotion. I have never seen a mediation end better because one side was unprofessional to the other side.
This is not to say you should be detached from the emotional quality of your case. If you are arguing your case to a jury or cross examining an important witness, there will be moments when it is advantageous to show emotion, to go on the attack. But be cautious with that. If you are always yelling, no one will think anything you say needs to be said loudly. But if you are normally soft spoken, cool and collected, then when you raise your voice, everyone will listen.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at egillett@pregodonnell.com or eric@gillettmediation.com Mediations are available both in person and via Zoom.
