Mcle Self-study Article Ethics and Settlement: Successful Negotiations and Mediation in Your Practice
| Jurisdiction | United States,Federal |
| Author | By Mari Frank, Esq. CIPP |
| Publication year | 2014 |
| Citation | Vol. 35 No. 4 |
By Mari Frank, Esq. CIPP
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“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
– Abraham Lincoln
Just as President Lincoln advised lawyers of his time to negotiate, save time and money, and act in good faith, those wise words are just as relevant today. Attorneys have the unique position to empower clients to reach agreement and be released from the pain and cost of protracted legal disputes. In 1984, then Retired Chief Justice of the U.S Supreme Court, Warren Burger shared his own observation of the state of our profession when he explained; “Lawyers, judges, law teachers – the entire profession has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers—healers of conflict.”
Litigation does not heal conflict –although it may end the battle. Negotiation and mediation heal conflict because the parties themselves fashion a mutually acceptable agreement to resolve the dispute. – However, too often consensual dispute resolution comes very late in litigation, after clients have exhausted their energy and their funds. According to a study by the Department of Justice, 97% of cases settle before trial through some form of negotiation or mediation. Many times settlement occurs just before trial at the courthouse! With the tremendous budget cuts in our judicial system, and the long wait time for trial, there is a greater need to settle cases as early as possible to give disputants the opportunity to end their conflicts and move on peacefully in their lives.
Most of what we do as a lawyers involves negotiation from the outset of our representation of clients, our communications with other attorneys, staff, experts, court clerks, mediators, judges and others. Our ability and credibility in the process is critical to a successful law practice. Our positive reputation depends on how we effectively and ethically handle negotiation. Whether engaging in lawyer-to-lawyer negotiations or representing your clients in mediation, attorneys have a duty to explain and consider options for settlement with clients early in their cases. It is our fiduciary duty to advise clients as to consider settlement negotiations, and/or consensual or alternative dispute resolution to resolve the case without a costly court battle.
The California Attorney General Guidelines of Civility and Professionalism indicate that there is an affirmative ethical duty to encourage clients to settle, to not delay resolution or try to game the system, but to act in good faith as to negotiations as stated below in Section 13 Alternative Dispute Resolution:
An attorney should raise and explore with the client and, if the client consents, with opposing Counsel, the possibility of settlement and alternative dispute resolution in every matter as soon as possible and, when appropriate, during the course of litigation.
| (a) | An attorney should advise a client at the outset of the relationship of the availability of informal or alternative dispute resolution. |
| (b) | An attorney should attempt to evaluate a matter objectively and to de-escalate any controversy or dispute in an effort to resolve or limit the controversy or dispute. |
| (c) | An attorney should consider whether alternative dispute resolution would adequately serve a client’s interest and dispose of the controversy expeditiously and economically. |
| (d) | An attorney should honor a client’s desire to settle the dispute quickly and in a cost effective manner. |
| (e) | An attorney should use an alternative dispute resolution process for purposes of settlement and not for delay or other improper purposes, such as discovery. |
| (f) | An attorney should participate in good faith, and assist the alternative dispute officer by providing pertinent and accurate facts, law, theories, opinions and arguments in an attempt to resolve a dispute. |
| (g) | An attorney should not falsely hold out the possibility of settlement as a means for terminating discovery or delaying trial. |
You have probably negotiated with many types of people in your practice. Recall the congenial attorney relationships in cases that ended in mutually satisfying settlements. What were some of the characteristics of those lawyers? You may describe effective negotiators as courteous, civil, confident, very well...
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