Chapter 13 - Divergent Interests of Adversarial Lawyers and Their Clients

Summary

The lawyer's job is to represent his or her client and to be the conduit through which the client receives information about the legal process. Lawyers play an instrumental role in ensuring that clients understand all the information they receive. They also give advice to their clients, especially with regard to the question central to JDR: “Should I settle this case?”

It is not always obvious what the attorney's interest is in promoting settlement. Is it the same as their client’s? If the case settles, the lawyer might well be forgoing additional fees. If a case can immediately settle in mediation with a skilled attorney, why wasn't the agreement reached previously in trial? Why did it take so long and cost so much to get to that point?

There have always been lawyers who argue against mediating legal disputes. Some of the classic anti-mediation claims are: “We are big people, we can settle the darn thing, what do we need a third party for?” and “Why do our clients have to be there?” This is a bit reminiscent of the familiar argument, “We settle almost all cases anyway, what more do you want?”

The other reaction is an unspoken sentiment that runs through many cases. As one lawyer said, “Early settlement, in other words, settlement using court-connected mediation, perhaps kicks me squarely in the pocketbook. [The lawyer goes on to say] … If you are being entirely selfish just looking at the lawyers’ interest, then why do I want this?” This statement—anonymous of course—reflects the anxiety that many lawyers feel looking at the phenomenon of the court-connected mediation, especially where it is mandatory and especially where it takes place early in the litigation process.

The third reaction—another “pushback”—is that mediation will produce a “watered- down legal system.” This view proports that because mediation is not decided by a decision-maker according to recognized principles of law, legal principles are not imposed and required, and this is a dilution of what we think of as a justice system.

Another lawyer said: “I am personally concerned that if only 3 percent of cases actually go to trial; that means 97 percent of the time all of the pre-trial stuff is wasted to a large extent, so … 97 percent of the money that I make is from wasted time?” (Murphy and Molinari 2009).