by Andrew Flake
It’s 11:50 p.m. You’re preparing to hit send on an email to opposing counsel, a lengthy and powerful epistle that will surely send them scrambling. Suddenly, you feel a chill. A wind whistles through your office. Was a window left open? The lights flicker off, and the exit lights blink. From down the hall…are those chains clanking? What is going on here? Suddenly, a shadow blocks your door, a dark, looming figure, clutching a sheaf of paper — an order denying the summary judgment motion you have yet to file!
It can’t be, and yet… It’s the Ghost of Cases Future, here to share with you the many ways you will have missed, in the coming year, to resolve this very same case. One of them is the highly irritating, and inflammatory, email you are about to send.
Blink. The lights are back on. No figure in the doorway. You leave your email in “draft,” and head home. Well-done.
Certainly, a visitation is one way to get some clarity, but let’s try some more relaxed reflection; as we work to wrap up cases, ink settlements, and generally close out another busy year, the holiday season is a good time for it.
An excellent starting point is our Georgia Lawyer’s Creed. Developed by the Chief Justice’s Commission on Professionalism in 1990 and updated in 2013, the creed is a wonderful touchstone for our work and how we think about our practice.
As you might expect, the creed speaks to our service to clients, to the judiciary, and to the public. At two separate points, though, it also speaks explicitly to the importance of another relationship, namely, the one opposing counsel have with each other.
As a mediator, I see some special value in that relationship as it relates to the timing and effectiveness of case settlements. Let’s start with what the Lawyer’s Creed has to say:
First: “To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.”
And then again: “To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.“
Certainly, your law practice is going to be more fulfilling if you cultivate a relationship with opposing counsel that is based on fairness and civility, one that is positionally adversarial, but not personally adversarial.
Beyond that personal satisfaction, is it possible to view our relationship with opposing counsel as one of … client service? Absolutely.
When we mediate cases, in commercial matters as in life, the personal dynamics can be just as, or more, important than the legal disputes themselves. It takes work and skill to help parties understand, and if not agree at least start to empathize with and listen to, the opposing party.
Some trust has to established, either restored to some extent in the relationship, or grounded in the negotiation and mediation process itself. Doing so becomes far easier when the lawyers in each room have themselves been interacting with each other in a spirit of fairness and with civility — the beginnings of a true “professional friendship” that may well, and hopefully will, continue beyond the immediate case.
That’s what I mean in pointing out the client service aspect: In my experience, the quality of the settlement for both parties — the possibility of true “win-win” aspects that comes from creative and empathetic negotiation — is heightened when counsel come into the mediation with professional trust and a case-track record of civility. It certainly seems to expand the zone of possible agreement and then help the mediator work with the parties to arrive there sooner.
Having that level of trust established, means that each counsel will, even as they engage where necessary on case disputes, will be open to discussion about helping their clients reconcile and the possibility of settlement. It means that counsel in one room will take at face value, and can count on the accuracy of, facts shared in the mediation. And it means a level of trust that agreements will be prepared in a spirit of good faith, with the intention of fully and fairly capturing the parties’ intended agreement.
So go forth, and be civil. You’ll be doing good for yourself, for your clients, and for the profession. And if you’re exerting full effort and your opposing counsel still seems unreasonable, well, maybe that spirit will stop by their office instead.