Saturday, June 15, 2013

Borrowing the Lawyers' Power in Mediation

I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues.   In the last mediation I conducted, I intended to borrow their power.  My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county.  The case involved the sale of a private residence.  The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia.   The building inspection, however, came back with a comment about the aging roof and cracks in the foundation.  It spooked her a bit.  Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house.  Now, she felt exploited.  Without an agent she trusted to help her work through these emotional responses, she backed out of the deal.   (These facts come from the complaint and not from confidential mediation communications.)

When I first moved to Virginia, I was shocked to find that lawyers participated in every, or nearly every, real estate closing.  At first, I guessed that lawyers had maintained a strong lobby that had kept this part of the real estate business in their hands.  This past summer, I learned from another country judge -- who presides in a courthouse located about thirty-five miles from the Cumberland Gap -- that titles to real estate located in Virginia are especially complicated.  Some of them may go as far back as the first settlements in the New World.   Jamestown, after all, is a popular tourist attraction that people visit after they tour the old Williamsburg colony, Monticello, and the Yorktown battlefield.  A lawyer who had joined us for lunch exclaimed that some of his biggest malpractice worries related to the accuracy of his title opinions. 

The revised Model Standards of Conduct for Mediators, a set of aspirational ethical guidelines, provide that the mediator may only accept cases in which he or she has the competence needed to satisfy the reasonable expectations of the parties.  The mediator must discuss the situation with the parties and take appropriate actions, if he or she learns during the course of the mediation that the mediator cannot conduct the mediation competently.  Based on the results of the discussions with the parties, the mediator may need to withdraw or seek appropriate assistance.  Virginia’s mandatory Standards of Professional Conduct contain a similar provision.

Thus, when I got the court-appointment to mediate this real estate case, I quickly called the lawyers for the four parties – the seller, the breaching buyer, the seller’s listing agent, and the buyer’s agent --  to advise them that (1) I am not licensed to practice law in Virginia; (2) even though four states have licensed me to practice law, I am on inactive status in each; (3) I had never handled a real estate lawsuit while I was actively practicing law; (4) my code of professional ethics precluded me, as a mediator, from giving legal advice, and (5) if I gave legal advice, I was likely engaging in the unauthorized practice of law.  Did they still want me?

As the day of the mediation approached, I had a few butterflies in my stomach.  If one or more of the lawyers expected me to evaluate the legal strengths of the parties’ cases -- something I would hesitate to do anyway and would only do after providing certain procedural safeguards -- I was not going to meet their expectations.  But I hoped that I could enlist the lawyers to provide their own candid analysis of their clients’ cases.  They would provide the legal analysis and advice as I played quite consciously “dumb.” 

Some of you may recall the character, Joseph Miller, played by Denzel Washington in the film Philadelphia.  He plays the lawyer for another lawyer, Andy Beckett, whose firm has dismissed him from a high-paying, high-status job when his superiors suspect he has AIDS.   Throughout the film, Miller says:  “Explain this to me like I’m a six year old.”  And so, throughout the mediation I asked the lawyers to explain relevant Virginia real estate law to me “like I was a six-year old.”  Of course, I could guess at the law, but the real audience was the explaining lawyer’s client, the other lawyers’ clients, and the lawyers.  I set up this interaction in a private meeting with the lawyers after each client had made an opening statement.  I asked them to help me by explaining their legal theories without rancor, without escalating the conflict, and with some candor.  I probed their presentations with general questions.  I would then ask if a certain theory or piece of evidence created a “soft spot” in that client’s case.  The lawyers felt secure enough, in joint session, to make concessions about the strengths of their cases or defenses, typically through a shoulder shrug or a slight nod “yes” or the body language signally “maybe.”  

Without this give and take among the lawyers, we would not have settled the case.  In other words, the lawyers did the heavy lifting that day.  I just suggested to them how to do the lifting and when I needed it done.

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at (footnotes in original are omitted in this posting).

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