Before “Lawyering Up”, Consider What That Means And Its Likely Impact

What do you think of when someone says they “lawyered up?” Does it make you think of cooperation and problem-solving?

In his “From the Chair” column in the October 2017 edition of Los Angeles Lawyer Magazine, John Keith – the 2017-2018 chair of the Los Angeles Lawyer Editorial Board – wrote the following: 

“It is axiomatic that, as attorneys, we have a duty to advocate for our clients’ interests zealously within the bounds of the law. It is inherent in our role that we fight other peoples’ battles, but this duty encourages us to identify with our clients and view their battles as our own.”

I take serious issue with Keith’s perception of the role of attorneys and have written about such in the past. That being said, his perception is held by a great many others, attorneys and the public alike.

While any given client presumably trusts that their attorney will help and protect them because otherwise they wouldn’t have retained that attorney, the other parties involved tend to fear and distrust those attorneys that aren’t representing them.

Therefore, once a party retains an attorney, the level of distrust and conflict between the parties tends to increase and the level of communication tends to decrease. Furthermore, when lawyers are involved, clients tend to trust the other parties more than they tend to trust the other parties’ attorneys. This is true regardless of the particular lawyer involved because of the role or perceived role of an attorney. In fact, even if a lawyer perceives him or herself as a counselor at law, they still represent their client and they have legal and ethical obligations toward their client in that regard.

What if instead, parties involved in conflicts and disputes jointly retained a mediator? Rather than each retaining advocates to “fight their battle” on their behalf, what if they retained a well-trained and skilled mediator they all trusted to assist them in bridging the gap between them?

By the way, doing so doesn’t prevent them from retaining an attorney. Mediation is a different process for handling conflicts and disputes than litigation. Whether or not it’s advisable, plenty of people represent themselves in litigation and court. By the same token, what makes people believe that they can’t or shouldn’t retain attorneys if they are handling their matter in the mediation process? In 2012, I had a two-hour interview with a Staff Writer for the Pasadena Star News regarding just this issue, which resulted in the publication of an article titled Realizing limits of mediation. It does bear mentioning that I was very clear that when working with attorneys in the mediation process, they should be “mediation-friendly.”

Considering how so many attorneys view their role, as described by Keith, this distinction couldn’t be more important. After all, as I view it, mediation is a “bridge building” and problem-solving process, which is very different than an adversarial one. As such, it isn’t helpful involving attorneys who view their role as fighting other people’s battles. “Mediation-friendly” attorneys tend to have a different mindset, training, and skill set.

Another issue touched upon in the Pasadena Star News article involved “informed consent.”

Earlier this week, I started preparing for a program I will be giving at a Long Term Care Bioethics Consortium Meeting in Glendale, California on Jan. 26, 2018. The topic is Working with Challenging Family Situations: A Mediator’s Perspective. While preparing, I came upon a wonderful article published in The Marquette Elder’s Advisor Law Review titled Elder Mediation: Optimizing Major Family Transitions. Their description of “The Role of the Mediator” resonated with me deeply and is as follows:

In order to be effective facilitators, mediators need to be process experts. Mediators must be able to:
* Facilitate discussion well;
* Summarize what is being said - for all parties - in ways that help the speaker feel understood and that makes the other parties to be more open to hearing his or her view;
* Ask clarifying questions that are non-judgmental;
* Identify the interests hidden in parties' positions;
* Encourage parties to brainstorm options that can meet each party's interests;
* Guide the process of the discussions; and
* Acknowledge and allow emotion.
Much like an orchestra conductor, throughout the process, a mediator must continually monitor group dynamics to see that everyone is heard, no one dominates, interests are communicated, and all options are considered.
We also believe that it is important for the mediator to have a certain level of content expertise. The mediator should have a working knowledge of the elements of typical family dynamics; a general understanding of the social, cognitive, and physical changes brought on by aging and its related diseases; and an awareness of the related areas of elder law. It is also important that the mediator be aware of key external information, resources, and options that may factor into a family's decisions....
In addition to being committed to neutrality, mediators also are committed to a fair process in which parties participate voluntarily, are fully informed, and determine their own outcomes. If any of these principles are compromised, if there is potential for harm, or if an ethical issue overpowers other elements of the process, a mediator may be faced with a decision about whether to temporarily stop or fully withdraw from the mediation.”

Not all conflicts and disputes involve legal issues. However, all conflicts and disputes do involve what they refer to as “content expertise.” They believe in order for parties to make informed decisions, they should have the information, resources and options that may factor into their decisions. This is what I refer to as “informed consent” because if such information may factor into such decision-making and they are unaware of such information, just how informed is their consent?

To me, “informed consent” and “self-determination,” another important aspect of mediation, are not inconsistent. How does providing parties with imparital information, resources and options in a non-judgmental manner negatively impact their self-determination? To me, that’s like saying that if I own an original masterpiece work of art, don’t realize it, I should sell it to someone for my perceived value of it, rather than becoming better informed. If through such information, I come to realize that the artwork is worth far more than I thought and I still wish to sell it at an extremely discounted price, that’s my prerogative. But, I should have that choice, rather than possibly regretting uninformed decisions I made when I see on the news that someone purchased an extremely valuable work of art at a garage sale price and realize that I sold them the artwork.

The Pasadena Star News article touched upon such informed consent when it comes to the law. If parties are working with a mediator who is unaware of the law and is therefore unable to provide the clients with neutral legal information with which the clients can make “informed decisions,” from where do the clients receive such information?

If the answer is “on their own,” then I’ll ask how they will find such information and how accurate it may be. Of course, if the mediator doesn’t have “an awareness of the related areas of ... law,” consulting attorneys can certainly provide the parties with such information. Again, if the matter is in mediation, hopefully such attorneys will be “mediation-friendly.” However, what happens when the mediator doesn’t have such information and doesn’t encourage the parties to retain consulting attorneys? Are any resulting agreements reached through “self-determination and informed consent” or through uninformed “self-determination?”

A mediator colleague recently published an article titled Dear Self-Represented Client, in which she stated as follows:

“As your mediator, I recommend that you consult at least twice with an attorney who supports mediation: at the beginning of mediation and again after we have carefully read through the first complete draft of your comprehensive agreement.... 
Self-determination is a key concept in mediation.  It means that you and your spouse decide what your agreement should be, not a judge, not a lawyer, not your mediator.... 
As your mediator, I want this mediation to succeed.  In my mind, that means that you need to make your decisions with full knowledge of other options and applicable laws as applied to your situation....
To select your consulting attorney, I recommend using a ‘mediation-friendly’ attorney because he or she will work with you to support your mediated agreement.  If you were to go to a litigator, that attorney might well try to sway you toward litigation, with visions of what you might expect if you hired him or her to litigate.”

While not all mediators may agree with our perception of “informed consent,” shouldn’t parties in mediation at least be provided with information such as that conveyed in my colleague’s article to make an informed decision as to whether or not they may want to retain a consulting attorney for such reasons? If not, I’d be interested in knowing how they define “informed consent.”

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