Why Attorney’s Should Consider Using Mediation in Every Law Suit?
Mediation allows you to use the mediator as the first person to raise the issue of compromise and settlement with your client, and with the opposing counsel, and at the same time preserve your relationship with your client as the advocate for their case.
As you prepare a case for trial, your client’s weaknesses and the opposition’s strengths become apparent. At some point in time it is both appropriate and in your client’s best interest for them to consider making some compromises in their position and to explore the possibility of settling the dispute.
I am sure that you have learned that these types of discussions must be handled very carefully. Clients always seem to be “shocked” or “surprised” to hear from you that their case has weaknesses, or that litigation is risky and they could lose. They also have a tendency to jump to the conclusion that you are worried about their case, and you do not want to give your client that impression.
Likewise, opposing counsel always seem to view an initial discussion about the possibility of a settlement as a show of weakness.. So, even where both lawyers may want to discuss the possibility of settling the case, they do not desire to be the first one to start the discussion with their client or the opposition for fear of appearing concerned or weak.
Mediation can be the solution. Mediation allows you to use the mediator to be the first person to raise the issue of compromise and settlement, and raise the issues of the risks and costs of continued litigation. Because the objective third party mediator establishes himself as the one supporting settlement, you remain the advocate for your client’s case and you have the opportunity to engage in an objective analysis of the case with your client without giving them the impression that you are worried about their case.
Through mediation your client and opposing counsel can clearly see that you are not worried about the case and are prepared to go to trial. At the same time you and your client have been able to explore risks, and discuss the ways to best resolve the dispute. You have helped your client see beyond their emotions, objectively discuss the realities of their case and reach the point where he can make an objective and informed business decision about his case. You can accomplish this trough mediation without giving anyone an opportunity to jump to the wrong conclusion.
As a mediator, my job includes assisting you in providing the best services you can to your clients. I can do this by providing you a safe environment in which you can discuss the issues with your client, objectively weigh the risks and the strength and weaknesses of their case, and reach the position in which they can make an objective and informed decision about their case.
Further, if the parties are not able to reach a mutual agreement to resolve the conflict, you can still go to trial.
Mediation and Disputes Among Members Of Your “Family Clients”
Your “Family Clients” (whether they are actual family members, or partners or friends involved in a joint enterprise), face many situations in which the “family” members need to work together and make joint decisions. However, they can encounter a roadblock if a disagreement arises between them. Decisions involving the administration of an estate or a trust, the care of an elderly parent, (including conservatorship and guardianship), or the management of a family or a joint business enterprise, are just a few of these types of situations.
The likelihood of an attorney encountering a possible “conflict of interest” is present in many of these situations and this can interfere with your ability to efficiently serve your “Family Client's”. When a potential conflict of interest does arise the traditional solution has been to advise each of them to obtain a separate attorney, or agree to joint representation. Hiring separate attorney’s can be seen as unnecessarily expensive. Also, even with an agreement for joint representation the attorney cannot have separate confidential discussions with each party.
When a disagreement arises, as their attorney, you should consider the use of a mediator. First, mediation avoids your concern about a “conflict of interest” or the need to engage separate counsel for each member of the “family”. Second, mediation offers your “Family Client” a way to resolve the disagreement with the greatest possibility of a reconciliation among the family members.
A mediator does not represent any particular person involved, has no allegiance to any party, gives no advice, makes no decisions and has no conflicts of interest. You save your clients the additional expense of engaging additional lawyers, and there are no constraints on the mediator's ability to speak in confidence with each person. The mediator is able to confer with each interested party separately on a confidential basis, and with the parties jointly. Only information that is authorized to be disclosed by each person will be shared with others.
Use of a mediator provides you with an ethical way to help your “Family Client” overcome a disagreement without sacrificing your relationship with your “Family Client”. Also, since the objective of mediation is to help the parties reach a mutually acceptable agreement, it offers the best chance of preserving the relationship between the members. Also the use of a mediator may reduce the probability of criticism, misunderstanding and future litigation.
The unique ability to talk with each individual party separately and in confidence, makes the mediator a valuable member of the team. No other professional has this ability. Also, there is no risk to the parties participating in mediation, since any oral and written admissions, offers, notes, and statements made during mediation cannot be used in litigation.
Whenever a potential conflict of interest may require separate counsel or a consent to joint representation, clients should be advised about the benefits of a skilled mediator.
JERRY KING LAW OFFICES
P. O. Box 160396
San Antonio, TX 78280