Articles
LEGAL ETHICS PROFESSIONAL RESPONSIBILITY AND MALPRACTICE PREVENTION (BY THOMAS W. CROCKETT, THE MISSISSIPPI BAR ANNUAL ETHICS SEMINAR, SEPTEMBER 2002)
Thomas W. Crockett
Mediation of Family Lawsuits
What does mediation of family lawsuits have to do with legal ethics, professional responsibility or malpractice prevention? It plays a growing role in legal ethics, an important role in professional responsibility and a limited role in malpractice prevention. To these we now turn. 1
Legal Ethics
The three aspects of this issue are: (1) the ethical duty to advise clients of the use of mediation, (2) ethical conduct in mediation, and (3) the ethical standards of mediators.
Ethical Duty to Advise Clients of the Possibility of Mediation
The Mississippi Rules of Professional Conduct offer limited guidance. Rule 1.2 requires a lawyer to consult with the client as to the means by which the client's objectives or representation ought to be pursued. Rule 1.4(b) requires the lawyer to explain a matter to the extent necessary for the client to make informed decisions regarding the representation, and Rule 3.2 requires the lawyer to "make reasonable efforts to expedite litigation consistent with the interest of the client." In light of the indefinite standards of these rules, and the lack of wide use of mediation, it is unlikely that a lawyer could expect to be faced with an ethical complaint for failure to advise of mediation. Litigation of family lawsuits is expensive, and mediation is effective in resolving them. Even without the threat of an ethics complaint, lawyers should consider their ethical responsibilities to advise their clients of the possible use of mediation. 2 In short, our standard of conduct should not be simply to avoid our ethics complaint. We will discuss this topic more under professional responsibility.
Ethical Conduct in Mediation
The mediation of family disputes presents some serious ethical issues, especially if the mediation is court-ordered. A court-ordered mediation is an implicit order by the court to make every reasonable effort to reach a settlement in the case. We as officers of the court have a duty to attempt to do so. Civility and candor should be the order of the day in mediation sessions. You should advise the mediator of the real needs and interests of your clients so that the mediator may work with you to reach value added results.
Remember, any agreement reached must be reduced to writing and presented to the court for approval. A lawyer who presents a child custody and property settlement agreement to the court seeking the court's approval represents that it is free from fraud, overreaching, or mistake of fact or law by the appearing party.
The Section of Litigation of the American Bar Association, in conjunction with the Dispute Resolution Section, recently published its guidelines for settlement negotiations. These Guidelines offer valuable guidance and may be obtained from the ABA Website. The Guidelines are meant to apply to settlement negotiations whether or not a third party neutral is involved. Although they have not yet been adopted by the ABA, they provide wise advice and should be consulted by all lawyers who engage in negotiations as a part of their regular practice.
The Guidelines require disclosure to the court of any mistake of fact or law induced by the lawyer or his client. 3
A problem occurs when one side for one reason or another is mistaken about a material fact. For instance, in dealing with an equitable distribution issue, mistakes are sometimes made in totaling the value of the assets. Suppose you are aware of the mistake which is in your favor, do you have a duty to correct it? Suppose you did not cause the mistake, but are aware of it. Is there a duty there? Guideline 4.3.5 imposes a responsibility to correct the mistake only if you or your client caused it. It reads as follows:
4.3.5 Exploiting Opponent's Mistake
In the settlement context, a lawyer should not exploit an opposing party's material mistake of fact that was induced by the lawyer or the lawyer's client and, in such circumstances, should disclose information to the extent necessary to prevent the opposing party's reliance on the material mistake of fact.
Ethical Requirements of Mediators
As the use of mediation has grown, the ethical standards applicable to the mediators themselves have received attention from the organized bar. With this increased use, more lawyers are becoming qualified as mediators and are included on the approved list of the State Bar. Obviously, this is a new role for many of us, and those of us who are acting as mediators need to pay close attention to these ethical rules. On the recommendation of the State Bar, the Mississippi Supreme Court has adopted the Model Standards for Civil Mediators. These standards were approved by the American Arbitration Association, the Society for Professionals in Dispute Resolution and the Litigation and Dispute Resolution Sections of the American Bar Association. As you can imagine, to receive the approval of these groups, the Model Standards contain nothing controversial. We will not take the time to discuss these rules in depth, but the following general comments are appropriate.
The standards protect the basic principal of self-determination. The mediator cannot impose her will on the parties and deprive them of their own right to decide whether to settle their dispute. This does not mean that the mediator cannot provide information about the process and help the parties explore options. Some mediators who are focused on obtaining a settlement at any cost may be tempted to impose their idea of a good settlement on the parties. This the rules prohibit.
The bedrock principle of self determination in mediation may sound simple. It is not. Not surprisingly, leading practitioners of mediation are divided into two camps: facilitative and evaluative. The facilitative camp stresses that mediator should play almost no role in suggesting a solution to the parties but simply facilitate their reaching their own decisions. Evaluative mediators, on the other hand, do not hesitate to participate in the actual substantive settlement negotiations and help the parties evaluate what a court would do in reaching its decision. Most mediators avoid either extreme and practice some of both.
My training and experience has been more in the area of evaluative, but I realize the importance of not imposing my judgment on the participants and being sure that they reach their own decisions. At one ABA meeting I attended, there was a heated discussion about this subject. One of the judges on the panel ended the discussion by answering: "I will tell you what the judges want: Settle that sucker".
The model standards also require that the mediation must be in an impartial manner and that the mediator should avoid even the appearance of a conflict of interest. This can present a problem when a mediator is a member of a large law firm. Before accepting a mediation, a conflicts check should be run. Fully advise the attorneys for the parties of any possible conflicts. If there are any, obtain a waiver in writing. After the completion of a mediation, a mediator may not accept employment from someone for whom she served as mediator on the same issue without a written waiver.
The other rules deal with the competency of the mediator, the level of confidentiality, the duty to conduct the mediation diligently, the explaining of fees and compensation and advertising and solicitation. In this regard, the mediator cannot publish his success rate of settlements.
These rules and their comments are contained in an order of the Mississippi Supreme Court issued on June 20, 2002.
Professional Responsibility
Our professional responsibility may be divided into two overlapping general areas: our responsibility to improve the system in which we practice, and our responsibility to be professionally competent to our clients. First, let us examine our responsibility to the legal system and the public it serves.
The legal system and the public it serves.
Nobody wins a family lawsuit. Frequently the parties most deeply hurt are the children who did not create this fight. Not only does the litigation of a family dispute dissipate their financial support or inheritance, but it keeps them and the people they love, their mother and father, from putting the hurt of a divorce behind them and starting a new and happier life. As officers of the court and responsible members of our community, we have a duty and an opportunity to ameliorate this unhappy situation. We lawyers have a professional responsibility to improve the court system in which we work, not only in the area of providing better services to the people who use it, but also by making it more efficient and less costly to the taxpayers who support it.
The website of the Mississippi Supreme Court tells us that in both 2000 and 2001, 82 appellate cases were filed for child custody or domestic relations of the approximately 1,100 cases filed, or a little better than 7%. We know from experience that because of the cost of appeal and the deference the appellant courts show to the chancellors, most decisions of the trial courts are not appealed. We also know that except for trial by combat, the court is probably the least efficient and satisfactory vehicle for resolving the sensitive, emotional and complex issues arising from a family breakup. We lawyers are in a unique position to improve this sad situation.
In spite of the obvious need to settle family disputes, they are notoriously difficult to settle. This is for several reasons, the most important of which is probably the huge emotional content of these disputes. These disputes are the result of years of strained and unhappy relationships long before they reach the lawyers' offices. Where the parties are objective and reasonable, which is not the norm in family breakups, then settlement by negotiation without the aid of mediation is frequently successful. Mediation, however, occupies some distinctive advantages in resolving highly emotional cases.
Mediation provides an excellent opportunity for the parties to vent their emotions. People who have been hurt -- and what divorce does not have at least one and probably two parties who have not been hurt -- need a chance to express their emotions and feelings to a neutral party who will listen to them and understand their feelings. Occasionally, a person's lawyer can provide this audience, but if not, then the mediator is trained to do so. For this reason, much of the first part of every divorce mediation session is devoted to the individual caucuses at which the parties vent their emotions. Once this is done the parties can objectively look at the settlement options.
A mediation session also provides a settlement event. That is, the parties sit down and focus for several hours on resolving their issues. In today's busy schedules, lawyers and their clients usually simply do not have time to devote a substantial amount of uninterrupted time to settlement negotiations. Mediation provides an opportunity for this uninterrupted and focused effort by the parties and the attorneys.
Mediation helps deal with the psychological barriers which abound. Divorcing couples, and perhaps many non-divorcing couples, must deal with psychological phenomena called reactive devaluation and selective perception. Reactive devaluation occurs when one adversary makes a statement to the other, and the other automatically discounts or disbelieves what the adversary said. It sometimes happens that one party wants a divorce on fault grounds and the other wants it on irreconcilable differences. Then, when the party who wants the fault divorce agrees to the irreconcilable differences divorce, the other spouse gets suspicious and will not agree. Mediation can be frustrating. Reactive devaluation, if not dealt with, makes reaching agreement almost impossible. A mediator can listen to one party and then convey the same message, perhaps in softer terms, to the other and not experience reactive devaluation. This, of course, encourages a free flow of information. Selective perception, that is ignoring evidence that is not consistent with your concept of what happened is also a barrier to reaching agreement. Mediators, by skillful questioning and analysis, can also help with this problem. 4
Mediation also helps when adversaries are concerned about fully revealing their true interests for fear of exploitation by the other. In order to reach value added or win-win solutions, each party needs to know the real interests and needs of the other, so a solution can be reached which will meet those needs. If a hardball negotiator can learn the needs of the other without divulging his needs, then he has an advantage in the negotiations. Mediation provides a solution to this difficult problem. The mediator can hear the interests of each party in the confidential caucuses and then make a suggestion to both parties which may result in a win-win solution that would never had been reached without the candid and confidential caucuses with the mediator.
The settlement of a family dispute offers a unique set of challenges and opportunities in that it concerns both deal making and conflict resolutions, two different processes. Deal making is trying to create value for both sides, and dispute resolution is who gets how much, if any. It is dispute resolution because if the parties fail to reach agreement, a court will settle the dispute for them. It is deal making because of the many arrangements that have a value adding component which would not be available in a court process. Some of the obvious ones are structuring the payments to be tax-deductible, alimony or arranging child visitation to suit the schedules of each parent. 5
Responsibility to be professionally competent.
Lawyers who participate in mediation have a duty to work to improve the mediation process. As in anything else we do, preparation is a key to a good result. One of the most difficult and, perhaps most important, phases of preparing for mediation is preparing the client for the mediation session. Most lay people have little concept of what mediation is all about and frequently confuse it with arbitration. In addition to the usual preparation such as explaining to the client what will happen in the mediation session, the long waits between caucuses and the conciliatory nature of the opening statements, the client should be made to understand that mediation is not a substitute for adjudication. The client must understand that the purpose of the mediation is to arrive at a goal which mutually satisfies the needs of both parties. Without mutual agreement, mediation fails.
"Success" in mediation does not mean obtaining the goal or result that the client has coming in to the mediation, but in thoroughly exploring all of the possible ways to reach agreement and to put the parties in a position in which they can make an informed decision as to whether or not they should go forward with litigation or accept the proposed solution. Only after all of the possible ways of compromise have been explored thoroughly with understanding and creative thinking by all parties involved, can a client then be presented with this decision. The client has a clear choice to make as to accepting the proposal or going to court. The client will chose between the proposed settlement and his Best Alternative to Negotiated an Agreement (BATNA). A clear understanding of both options is essential to making a good decision. The client needs to understand that there are no winners or losers in mediation, unless both parties win or both parties lose.
Engage in brainstorming with the client prior to the mediation session to see if opportunities exist which may be attractive to either party without substantial cost to the other. For instance, in divorce cases, frequently an apology is very helpful, or perhaps use of a summer home for a specified period of time. Depending on the relationships of the parties and the facts in each case, many of these low cost proposals may be available. You may -- or may not - be surprised to know how difficult it is in some cases to get an apology from some parties going through a divorce. This brainstorming is important, but the ultimate goal of all pre-mediation preparation is to get the client in the frame of mind to be open to constructive ideas from the other side. Considering the psychological phenomena of reactive devaluation and selective perception, this is often difficult in divorce cases.
It is also helpful to consider more limited objectives than a complete settlement. It may be that a complete and full discovery of all the relevant facts may be all that results from a mediation. This is often worth the effort. A partial settlement on some of the issues may be explored. Sometimes the best you can do is agree to a process by which the parties can work towards a settlement.
In my experience, a great majority of mediated cases settle at the time of the mediation. The few that don't are frequently settled later as a result of the progress made in the mediation session. At a minimum, the discovery time is shortened, because the mediator makes sure that the parties understand that unless their adversaries have enough information to make a decision, no agreement will be reached. It is a rare case where some agreement is not reached which substantially shortens the length of the trial time.
In addition to preparing our clients, we also need to prepare the presentation of our case. A few basics: remember the party to be persuaded is not the judge or the jury, but is your adverse party. The opening statement, therefore, should be persuasive and conciliatory and not confrontational. Confrontation is not a good way to persuade. It is the only chance lawyers have to talk directly to the adverse party, without being filtered through his lawyers. Save the attack mode for the courtroom, if the case does not settle in mediation. Caveat: Explain to your client prior to the mediation session what your strategy is so the client will not think that this conciliatory way is how you will be in court and that you will not be fighting for his interest. Use charts and graphs where appropriate along with a document showing the major points that you expect to prove. You may then leave them with your adversaries to study while you are caucusing. Your conduct in the caucuses is important.
In the caucuses, after venting is completed, the mediator will be the advocate for the other side. You are not trying to persuade the mediator, but you do want to give her the tools with which to work. For this reason, give your mediator as much advance notice of your strongest argument so that she will be prepared to make these points to your adversaries. A skillful mediator can make these points much more effectively than you can, because unlike you, she is not faced with reactive devaluation and selective perception. Your mediator is trying to settle this case, and you need to give her all of the ammunition that you can. Of course, you will want to save some of your zingers for trial in case the mediation does not result in a settlement.
Three of the most important traits a lawyer representing a client in a mediation can have, other than being well prepared, are cooperation, candor and civility. Studies show that cooperative negotiators, as contrasted to hardball negotiators, reach settlement in a higher percentage of the cases. Because of the confidentiality of the caucuses, the cooperative approach is not as dangerous as it is in one-on-one negotiations. The same is true of candor. For the same reasons, you may be more candid with the mediator than the opposing party. Civility should be shown to all the parties, not just the mediator. Lawyers who are not civil in mediation show that they just don't understand the first thing about the process. Also, as the session progresses, you should attempt to show more cooperation and candor to your adversaries in small amounts to see if they breed a like response.
It will be an unusual case if civility, cooperation and candor do not engender a reply in kind. Unless the negotiator has a rare amount of self control and maturity, hardball tactics will usually result in a like kind response. The truly successful negotiators, however, will stick to their cooperative and civil approach regardless of the tactics of the hard-nosed adversary. Why let someone else tell you how to conduct yourself? In my experience, mediation usually brings out the best traits of all parties.
Part of our responsibility as professionals is to be abreast of new developments in our field, in this case, resolution of family disputes. While it is not new, mediation without the involvement of lawyers in family disputes is popular in other states. Usually this is done by social workers or non-lawyers. After the parties reach agreement, then the final contract will be prepared by the lawyers. This is useful in low asset estates; but in my experience, it has not been worthwhile in estates with substantial assets. Too many questions which require expert legal and professional advice must be considered and bargained about. Another growing area is the field of collaborative law. This is an approach that is being pioneered in California and Minnesota and is catching on in other states. The lawyers sign an agreement when they enter the case that neither lawyer will represent the client if the case goes to litigation. The fact that the lawyers must withdraw from the case if settlement negotiations fail and the case goes to court creates a strong incentive to settlement. This is a growing field; and, in fact, in 2002, the American Bar Association Lawyer as Problem Solver Award was awarded to the creators and promoters of collaborative law. There are now collaborative law groups in at least 20 states. For more information see www.collabgroup.com. If you are interested, you may find helpful an ABA publication: Tesler "Collaborative Law: Achieving Effective Resolution In Divorce Without Litigation" (ABA Press 2001).
My sense is that there may not be the volume of divorce work in Mississippi to support such a program at this time, but it is something that we as professionals should consider. In my experience in mediating family lawsuits, I see dedicated lawyers who work extremely hard to resolve cases without incurring additional expenses in litigation and who would make excellent collaborative lawyers. If anyone is interested in pursuing this concept, I would appreciate hearing from them.
Another recent development is Med-Arb, which is a combination of mediation and arbitration. 6 This procedure is helpful when, even after the divorce is entered, the parties continue to fight over details such as visitation and the school the child attends. This process consists of having the parties agree to a permanent neutral who will attempt to mediate their ongoing disputes; but, if they fail to reach agreement, the neutral will make a decision.
The parties themselves select the type of procedure to use, which may consist of face to face meetings or may be conducted by telephone, e-mail or fax.
A written agreement is important: it defines which issues will be submitted to Med-Arb and which will not. Three areas frequently excluded from Med-Arb are: financial issues, relocation of parents, and change of custody.
Med-Arb will not be effective in cases where there is a highly dysfunctional party who simply refuses to accept the court's authority and repeatedly changes counsel or violates court orders. If they will not obey a court, they will probably not obey the Med-Arbitrator.
Malpractice Prevention
Mediation also has a place in malpractice prevention. 7 With the increased acceptance of mediation as an inexpensive and time saving method of resolving disputes, lawyers may be faced with the question of whether it is negligence to fail to advise a client of the possibility of mediating a dispute. We usually think of a legal malpractice claim as a case within a case; the plaintiff must prove that but for the negligence of the lawyer, the result would have been different. The plaintiff must also show a specific amount of monetary damages. Given the nature of mediation, this is an almost impossible task. A recent Mississippi Supreme Court decision, however Singleton vs. Stegall, 580 So.2d 1242, 1245 (Miss.1991), changed this rule. In that case, the plaintiff was convicted of a crime and paid the a lawyer to perfect an appeal, which the lawyer failed to do. The client sued for return of his fee, and the lawyer argued that since the client could not prove the appeal would have been successful, the client suffered no damages. The Supreme Court held that the client was entitled to the fee back, regardless of the fact that the appeal probably would not have been successful. The Court reasoned that regardless of the probable effect on the outcome, a client is entitled to the service for which he paid.
I have heard a story about a case where, after lengthy and expensive discovery, the case was ordered to mediation and promptly settled. The client demanded and recovered several hundred thousand dollars in discovery expenses it had incurred. I have found no reported decisions on this point, but in our litigious society, we may see some in the future.
The safe thing to do is to take the time to understand what mediation is about and fully discuss the possibility with your clients before engaging in lengthy and expensive litigation. Confirm this disclosure in writing.
1Much of this paper is based on previous CLE papers presented by the writer to Mississippi State Bar ADR and Family Law CLE Sections and the Deborah Bell 2002 Family Law Seminars.
2See Thomas W. Crockett, Emerging Ethical Issues in ADR: Does a lawyer have a Duty to Advise Clients of Mediation. The Mississippi Lawyer, Vol. XLVIII, No. 2.
3Guideline 2.5 provides
2.5 Required Disclosure to Court of Information Relating to Settlement Negotiations
When seeking court approval of a settlement agreement or describing in court matters relating to settlement, a lawyer shall not knowingly make a false statement of fact or law to the court, fail to correct a false statement of material fact or law previously made to the court by the lawyer, or fail to make disclosure to the court, if necessary as a remedial measure, when the lawyer knows criminal or fraudulent conduct related to the proceeding is implicated. Failure to make such disclosure is not excused by the lawyer's ethical duty otherwise to preserve the client's confidences.
4Dwight Golann, MEDIATING LEGAL DISPUTES, Aspen Publishers, Inc., 1996, Chap. 7, provides a helpful discussion of this perplexing problem.
5See Robert H. Mnookin, BEYOND WINNING: Negotiating to Create Value in Deals and Disputes, pages 176, 177, Harvard University Press, 2000.
6See Christine A. Coates, Mediation-Arbitration for Post Divorce Conflicts. Paper presented at 2002 Mid-Winter Meeting of ABA Dispute Resolution Section.
7Crockett, op cit.
