What Would You Do if….
A lawyer tells you that he has complete control of his client and that she will accept his recommendation. You suspect the client will not be as accommodating, but the attorney insists you don’t need to meet with his client.
Tracy Allen: I won’t mediate with attorneys who don’t allow me to work with them in the presence of the client. I am very careful to honor the atty-client relationship and never come between a client and an atty. I also won’t take a proposal to the other side unless I have a clear approval from atty and the client. If we are working on “I can recommend it to my client and I think my client will agree” then the proposal comes with no assurances.
Gig Kyriacou: It is important for the mediator to have some contact with all of the parties, even if this is limited to introducing yourself and discussing the process. I think this all starts with the trust relationship that you build with the attorneys. If the attorney feels that you will not undermine their authority, they will almost always honor a reasonable request to have access to the client. In those occasions when they are reluctant, you must walk through the things you will be addressing with the client and seek their input and permission as to how to proceed. I have never been denied access to the client when I have followed this approach.
Mike Young: This one is more difficult because you are now getting away from Easy Negotiation Strategy and into Hard Mediation Ethics. When must a mediator ensure that the actual client (not the mediator’s client — i.e., the lawyer who hires him — but the actual litigant trying to get his or her life back in order) is involved in the process and cognizant of what is going on? Or when can the mediator simply accept the attorney’s representation that the client is on board? It’s an easy answer from an academic perspective; I can hear my Mediation Professor’s wise words back at the Hogwart’s School of Mediation: “It is the individual party’s dispute, and hence the individual party’s resolution. That party must be part of the process and must make the ultimate decision.” But this ignores reality where many parties, particularly unsophisticated parties or those not familiar with our legal culture, hand their decision-making responsibilities over to their counsel to negotiate for them the best deal possible. It makes our lives as mediators much more difficult when we can’t tell whether the individual party is really THERE in mind and spirit, or is there only in body. I think it is incumbent that we mediators ensure that the individual party knows what is going on at all times, and that if she is surrendering her negotiating and ultimate decision making authority to her counsel, that she is doing so knowingly and voluntarily. We mediators run a risk when we do this — we can tick off the very counsel who hires us who may think we are meddling in his attorney/client relationship, and such can be a career inhibiting move if done too often. After all, even mediators need clients. On the other hand, mediators also run a risk of losing a settlement by blindly following the attorney’s representation of client control when it turns out that the control is not as complete as the attorney expected and the now-disenfranchised client walks out the door. There is also that ethics thing — allowing the actual disputants to be in charge of their own dispute and resolution. It is a balancing act to be sure, but one that should be weighted heavily in favor of ensuring client involvement, even at the risk of upsetting an attorney or two. (Besides, what’s a day in mediation without an upset attorney or two, I mean really.)