Vol. 29, No. 6 #5 (December 2006). Mediation Isn't a Band-Aid for Poor Lawyering.

• Author: By Jay A. Gilbertz

Wyoming Bar Journal

2006.

Vol. 29, No. 6 #5 (December 2006).

Mediation Isn't a Band-Aid for Poor Lawyering

WYOMING LAWYERDecember 2006/Vol. 29, No. 6Mediation Isn't a Band-Aid for Poor LawyeringBy Jay A. Gilbertz

The problem is not novel or new. "None love the messenger who brings bad news.(fn1)" Little has changed in the 2,500 odd years since Sophocles identified the simple fact that we dislike the person who bears ill tidings. While it may not be an analytical or logical reaction, it is a predictable part of human nature. Instinctively we know this to be true, and it creates a counter response in humans. This reaction, however, is logical - if the news is bad, no one really wants to be the messenger. We are like teenagers who get a bad report card on Friday. We look for any excuse or justification to avoid telling our parents until Monday. Then again, Mondays are always bad, maybe Wednesday (night) would be good.

Attorneys are no different; we want our clients to like us. We want our clients to think that we are fine attorneys doing our best to negotiate or litigate for a good outcome and maybe even cut that proverbial fat hog for them, if the opportunity is presented. At the same time, one of the obligations we accept as lawyers is to renounce our human tendency to avoid the distasteful task of conveying unwanted information. Our professional obligations and our human tendencies are in conflict.

The need to overcome our natural inclinations is so important that we have an ethical rule on the issue. In our role as "advisors" we are ethically bound to tackle this problem. The comment to Rule of Professional Conduct 2.1 states that: "Legal advice often involves

unpleasant facts and alternatives that a client may be disinclined to confront. . . . a lawyer should not be deterred from giving candid advice by the prospect that the advice will be

unpalatable to the client. " 2 While the obligation seems uncomplicated, it will always be unpleasant in some degree to convey bad news, and there is a strong temptation to delay the task.

I have found that it is much easier to impart this type of message early in the attorney-client relationship. When a new client first comes in my office, it may not be a fun job to tell them that his "great" case has some significant legal or practical flaw. Yet providing accurate and straightforward...