In 2017, Yale professor, Timothy Synder, published “On Tyranny. Twenty Lessons From The Twentieth Century.” In that book, he wrote about the rule of law and how it is hard to subvert the rule of law without lawyers. Unfortunately, lawyers are exactly who Hitler recruited to oversee the imprisonment and execution of Polish and Austrian citizens in the 1930’s. Hans Frank, Hitler’s personal lawyer “claimed that the law was meant to serve the race, and so what seemed good for the race was therefore the law.” These arguments allowed German lawyers to convince themselves that laws and rules were there to serve their own interests. Professor Synder concludes:
If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.
Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interest, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following order.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable.1
I appreciate that comparing our work as lawyers mediating civil lawsuits to atrocities committed by Nazi Germany may feel heavy handed. But the principles are the same regardless of the situation. Ethics are no less important in our day-to-day work than in instances of mass murder. Now that I have your attention, let me proceed.
Mediation is a few steps down from the formality, the performance, and the consequences of trial. Typically, the only Judge in the room is retired, and more often than not, not even a retired judge is involved. There is no jury to watch your every move and evaluate your credibility or the credibility of your client. Mediation often feels much less consequential than closing arguments and waiting for a verdict. The reason why is that if mediation fails, you just get back to work and take the next steps toward a resolution. Judgment day has not arrived.
I have noticed on occasion, however, that some lawyers act as if ethics are not a guardrail at mediation. They are comfortable arguing facts that are not “facts” and have no basis because no document supports them, and no witness has the requisite personal knowledge to testify to them as admissible evidence. They are also comfortable stretching a legal proposition so thin that support for it borders on the farcical. If called upon to support those facts or legal arguments in Court, they would likely retract them. But in a mediation, they feel like it is ok to take their best shot and see where it gets them.
There are at least two important reasons why you should not treat mediation as an opportunity to stretch the facts or the law. The first reason is that mediation is an opportunity for you to enhance your credibility with opposing counsel and the mediator.
It may surprise you to know that the ABA Model Rules provide some leeway for lawyers who are inclined to stretch the truth. For example, ABA Rule 3.3, which says:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
The problem is that, except in Texas, a mediation and a mediator are not considered a “tribunal” under the ABA rules. It turns out that lawyers in a mediation are bound by a qualified truthfulness standard set forth in Rule 4.1 and, therefore, can engage in “puffery” under “generally accepted conventions in negotiation when they participate in mediation.”2
But just because you can stretch the truth does not mean you should. As I have discussed in several earlier mediation articles over the years, honesty is your shield because honesty is impenetrable. When you are in mediation, like in life, and you strive for scrupulous honesty, a good mediator will see that and use that to your advantage. When I walk into the other room, having absorbed your honest assessment of a case, heard you take stock of your strengths as well as your weaknesses, I am emboldened to carry your message, whether that be a legal argument or a settlement offer. It is your greatest strength.
When the other side is faced with this level of honesty, it is impossible for them to argue effectively otherwise. They may not like your position. For any number of reasons, they may not accept your position. But their ability to respond with a counter argument that carries any weight is very difficult. And they will see, even if they won’t admit, that you have a strong position.
The other important reason not to stretch the facts or law at mediation is based on the learnings from Professor Snyder’s book. Lawyers, regardless of whether they are in front of a tribunal or at the drive through line of a McDonald’s are officers of the court and guardians of an incredibly important institution: the justice system. We should be proud to protect that institution from all sides and at all times. Just as Professor Snyder observed that lawyers have the power to subvert and destroy institutions under the auspices of the law, so too do they have the power to protect them. And we want to protect them. Mediation works because your clients have faith that it can result in a fair and final solution to their important problem. Your efforts to protect and promote an honest presentation of their case is your contribution to the ongoing efficacy of mediation. Your clients may be emotionally driven by a certain result, but you must not be. Resist any temptation to confuse your ethical responsibility with the emotions of the moment, lest you find yourself saying and doing things that you might previously have thought unimaginable.
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.
1 Timothy Synder, On Tyranny, Twenty Lessons From The Twentieth Century, pp.40-41 (2017).
2 Omer Shapira, Mediation Ethics, A Practitioners Guide, p.38 (2021).
