When I walk into a mediation, I have many thoughts on my mind. Those include the information I have been provided by the respective attorneys and their clients explaining their positions for or against liability as well as the nature and extent of any damages or other recovery they expect. But hovering in the air is what I know about the credibility of the attorneys. Their reputations precede them. Throughout the day, throughout the process, however long it lasts, their reputations are omnipresent and shape the course of the mediation.
It is axiomatic that a good reputation is hard to earn and easily lost. In your legal community, you may spend years gaining the respect of your peers through excellent legal work performed with integrity. But one bad act can tear down years of good work. Every day I see emails posted on listservs asking after one attorney or another. “Has anyone had a case with Eric Gillett?” “Has anyone tried a case against Eric Gillett?” “Has anyone used Eric Gillett as a mediator?” “What was your experience? All responses confidential.” I’m sure you see similar requests, whether about you or someone else.
We can’t control whether or how others respond to these requests. Some responses may not be accurate or fair. But we can control how we conduct ourselves to give us the best chance to encourage a positive response. And it is important because it will influence your ability to serve your clients’ best interests.
When I was a young attorney, I was advised to pay attention to whether opposing counsel went to trial or always looked for a way to settle cases. After trying a few cases myself, I understood why this was important. Trials are hard work. Trials are stressful. Trials can be downright scary. You are forced to put yourself in front of twelve strangers who will decide your client’s fortune, under the critical gaze of a judge who, well, judges whether what you say has merit or whether it is worthless, and finally opposing counsel who is looking for every opportunity to throw another roadblock in your path. It is no surprise many attorneys who are happy to file a lawsuit will do everything in their power to avoid a trial. For some, settling a case is always the answer.
I learned if an attorney had a reputation for always settling their cases rather than exposing themselves to trial, I could leverage that at mediation. Their reputation strengthened my conviction they would take my best offer rather than take the case to trial.
But I didn’t need to be told to learn the importance of an opposing counsel’s reputation for honesty or whether they had integrity. Understanding that was self-evident. And that is the point. No one needs to figure out that honesty or integrity are important. From the time we are children on a playground, we learn dealing with a dishonest classmate is different than dealing with an honest one.
It is no surprise the phrase, “my word is my bond,” carries great weight. Earning such a reputation should be a goal. Holding onto that reputation should be an even greater goal. As your mediator, if I believe your word is your bond, then I will carry your reputation into the other room; if your opponent has any doubt, I will ensure they understand and I will explain why that should matter to them and their client.
In 49 BCE, Gaius Julius Caesar faced a dilemma. Under Roman law, no army was permitted within Rome. With his legions massed on one side of the stream known as the Rubicon, Caesar understood if he ordered them to cross over with him, he would be considered an enemy of the Roman Republic and civil war would ensue. But if he turned his legions away, he would be stripped of his enormous power and his army, exposing himself to a fragile, unlikely existence. He chose the former, marched on Rome, engulfed the Mediterranean in civil war, and hastened the fall of the Republic. And, of course, he was assassinated. Such are the consequences of some decisions.
But Caesar had a reputation in Rome borne from decades as the Governor of Gaul where he amassed an army that conquered nearly all the tribes inhabiting what is now known as northern Europe. He was known to be a man of his word. He had a reputation as a formidable and ruthless military leader.
Crossing the Rubicon has become a catch phrase meaning you have passed a point of no return. You have made a decision or taken an action from which you cannot return to the status quo ante. I come here today neither to bury Caesar nor to praise him. But I implore you, if you wish to resolve a case in your client’s best interest, don’t make a decision from which you cannot return, if that decision will adversely impact your reputation for honesty, hard work, and integrity.
While most of our decisions may not have such grand or grave consequences as there were for Rome and Caesar, you should accept that your reputation is as important as the fate of an empire, if not your own life. As Caesar is quoted, “[t]he evil that men do lives after them; the good is oft interred with their bones.” Your bad reputation may be all people talk about.
It is obvious a “lying” lawyer is bad as well as unethical. Crossing that Rubicon is likely to destroy your empire. But exaggerating the truth, engaging in unnecessarily contentious discovery, or excessive motion practice also may put you at the water’s edge where you will face the same dilemma as Caesar. Beware the Rubicon.
You must be able to understand and communicate with your client whether opposing counsel has a reputation for honesty and integrity. Some will have preconceived beliefs about attorneys which may impact their decisions; if those beliefs are inconsistent with your opposing counsel’s reputation, they will not serve you well as you attempt to negotiate, whether in mediation or outside of mediation.
When I walk into the room and see you sitting with your client, I want to know you have that positive reputation in the legal community. With that reputation, the facts you put forth, the legal arguments you posit will carry more weight with me and allow me to put that weight in the other room. My job is to use your good reputation to support your claims. If the discussion in the other room begins with how you are not a serious lawyer, not an honest lawyer, not a lawyer with integrity, then a large part of the mediation will be spent trying to minimize your importance, how the case stands on its own merits. Work hard to make your reputation your asset, not your albatross. While your case may be so strong that your reputation is secondary, that the undeniable facts stand on their own, your case will stand stronger if you are a Ceasar.
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 or at https://www.linkedin.com/in/gillett-mediation 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 eric@gillettmediation.com Mediations in person are encouraged.
