Personal Conscience Meets Mediator's Ethics

I delivered a Continuing Education Lecture this week on "The Ethics of Negotiation". As always, I learned a lot from my audience, an impressive group of lawyers with an age range from mid-20's to late 50's. I struggled with the message to deliver because my research allows for a considerable amount of deceit in negotiations, which I've come to expect and accept. But this week, I was on alert for these deceptive strategies when I negotiated a transaction which I felt slightly morally reprehensible, or maybe just unfair. Without revealing any of the facts, the case involved an elderly woman who was evidently wealthy enough and sufficiently uncomfortable about the lawsuit against her to offer more money than a Plaintiff would have normally expected based upon the particular set of facts and legal obstacles involved. I brokered a deal where all were satisfied, or even delighted, but it had a certain thud in my own instinctive gut after it was over.

Does the mediator's personal conscience matter? My conclusion was it does not. If I can't step back and allow the parties to craft a deal in which all parties are comfortable, than my only move should be to withdraw or recuse in advance. I have done that on only one occasion when the factual scenario struck me as not only unfair, but echoed a personal experience with a lawsuit on similar grounds. Otherwise, I'm left to conclude that the mediator's personal conscience has to be checked at the conference door. That's why each party is represented by a lawyer, and I'm delighted to give them the responsibility of both evaluation and conscience over the results of their actions.

What's Behind the Conflict?

I had an opportunity to deliver a lecture on "Looking at Substance Abuse through a Different Lens: The impact of Drug and Alcohol Use on Legal Practice" this week. In preparation, I did considerable research on the subject. What I found, to my surprise, was that alcohol and drug abuse seemed to be a recurring, but always unstated theme as the driver of conflict and the impediment to resolution in many of the cases I've heard. Living and working in a large, metropolitan, expensive and competitive place like Los Angeles, I've seen evidence of substance abuse in business, real estate construction, employment and personal injury cases. It's no surprise, since the statistics suggest that abusers are generally both more aggressive and less likely to accept blame or responsibility for their own actions. Those that have access to attorneys to fight their battles consequently become regular clients in litigation. Whether the conduct is driven by substance abuse, or the litigation is confounded by it, mediator's and lawyers would be well advised to routinely investigate whether substance abuse plays into the conflict they're asked to resolve. The next time you have an inexplicable or intractable conflict, think about it through the lens of a drug abuser or alcoholic and see if that doesn't help you to understand why, for example, the story keeps changing, the recollection of facts has so faded, or the client refuses a reasonable settlement offer which will mean the end of their legal fight, representation and medical treatment on liens.