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Honolulu Hawaii Mediator - Arbitrator - Attorney
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A Special Note to Attorneys
There’s a secret we lawyers keep to ourselves. Maybe saying it out loud would sound like bragging, or being too naïve.
The secret is about the reason we became lawyers. And it’s this: in becoming lawyers we set out to become heroes. Someone who helps others by telling the truth about the hard situation they’re in. Someone like Atticus Finch from the novel To Kill a Mockingbird.
We know the story. Atticus was the white lawyer who defended Tom Robinson, a black man wrongly accused of raping a white girl. The novel is set in a small Southern town in Alabama in the mid-1930’s. Atticus was a man of quiet courage, intelligence, determination, and decency. He refused to quit, even though it looked like he “was licked before he began.”
That’s us. That’s who we’re striving to become. A hero for our clients, our families, and our community. That’s what makes us happy; that’s what makes us feel good.
Atticus Finch demonstrated that heroism in the jury trial of Tom Robinson. Nowadays, there aren’t too many jury trials; instead, our skills are more often called upon in mediations. Although mediations aren’t adversarial, they share the same fundamental purpose as trials: the search for truth and wisdom to resolve a dispute. Our essential job as attorneys in mediations is also the same: to guide and protect our clients in the search for truth about the dispute, and to find the wisdom to resolve it. It’s a private drama, as opposed to a public trial, but we attorneys are still needed to be the heroes we set out to become.
The question, then, is how to exercise heroism as lawyers in mediation. As a mediator, here's my answer to that question.
Exercising Heroism as a Lawyer in Mediation
- There are five critical decisions to make in mediation: deciding whether to mediate; choosing the mediator; weighing the facts; applying the law; and evaluating settlement offers. Your advice on each one is indispensable in helping the client make informed decisions.
- When your clients are in a serious dispute, no matter who they are, they need you to stand by them, to protect and guide them. Your active participation helps your clients feel more safe, relaxed, and willing to "risk" mediation, because you’re there to keep the mediation on a level playing field.
- You know the process of mediation. Just as important, you know whether the mediator has the reputation of being impartial, independent, experienced in the subject matter of the dispute, and, most of all, endowed with the right stuff to achieve a fair result.
- During the mediation, it's commonplace for issues of law, legal strategy, and predictions about the outcome of arbitration, trial, or appeal to arise. When that happens, the parties may ask the mediator for a confidential nonbinding recommendation for settlement. Any such recommendation needs to be reviewed by you. You know the special facts, the idiosyncrasies of the players, and law of the case far better than the mediator, and can help the client weigh the mediator's evaluation. The "second opinion" of the mediator can also help you with a difficult client by providing additional reality testing about an unreasonable position.
- Mediation, at the very least, generates new information about the facts, the other side's point of view, and creative settlement ideas. Clients need your help to reevaluate the strengths and weaknesses of their case when new information comes up.
- Clients rely heavily on your advice in making decisions about settlement. You are a co-decision maker with the client. Clients want -- and deserve -- to have you present to tell them whether a proposal is fair.
- My experience is that, rather than thwarting fair settlements, you promote fair mediation settlements by discouraging unrealistic client expectations, refraining from identifying with the client emotionally, resisting outrageous demands, understanding the likely legal outcome, and engaging straight-forwardly in the settlement process.
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Active lawyer participation does not mean you "take over" the mediation, or wrest control of the process from the parties. The parties still attend, speak, listen, think, propose, and decide. With your assistance, the parties not only participate fully, they benefit fully from the process.
Abe Lincoln said: “As a peacemaker a lawyer has a superior opportunity of being a good person.” As lawyers, when mediation’s done just right, we get a special feeling that we’ve been a good person, maybe even a little like Atticus Finch. It’s one of those moments we strive for as lawyers. It’s the secret reason we became a lawyer in the first place: to be a hero.
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