In Mediation, We Can’t Always Get What We Want.

October 1, 2020By Bill RatliffUncategorized

The title to this post was actually inspired not by the song, but by a post recently published by my friend Richard Simmons (and no, if you don’t know him by name, not that one). Richard is a genuinely gifted teacher and writer, and I highly recommend his blog.

That said, the title is perfectly suited to mediation — where competing sides generally fight for pieces of the same pie with the attitude that “More for you means less for me.” That may be true, but the bigger truth is, if we can expand the pie, we both win.

Unfortunately, this is rarely an option — and the more time and money our clients spend fighting over the pie, the more it’s shrinking.

I recently conducted a mediation involving four siblings arguing over their father’s estate. One of the siblings was alleged to have exerted undue influence over the division of Daddy’s estate, and received $500,000 of assets — while the others got nothing.

After negotiations for an equitable distribution of assets slogged along for nearly a full day, I told the lawyers, “You’re the only ones who stand to benefit from this fight continuing.”

The more their fees increased, the more their client’s pie decreased. Being good and honorable professionals, the lawyers agreed. They recognized that their clients would benefit most from a prompt resolution, even if nobody got everything he or she wanted.

Too often, lawyers get a bad rap for doing their job.

In fixed pie cases, the reality is often that lawyers’ fees result in pie shrinkage.  At the same time, without lawyers, disputed pies rarely get divided fairly.

An important part of our responsibility as lawyers is a willingness to tell our clients that they can’t always get what they want. There’s a lot of truth in the old saying that a good settlement is one in which both sides are unhappy. I’d like to think a good settlement happens when both sides give, in ways that makes settlement sensible.

As a mediator, I often get to see lawyers at their best — subordinating their own interests to their clients’ best interests. While prolonging disputes often serves them and their firms’ bottom lines, they recognize when their clients’ best interest lies in prompt resolution.

This is one of the real benefits of mediation. The mediator, who “doesn’t have a dog in the fight,” can point this out to clients without their lawyer appearing to be less of an advocate for his/her clients’ position.

Clients often get so consumed with the correctness of their position, and the desire to get everything they want, that they end up making bad decisions. This is where our job, as attorneys and counselors, is so important.

Sometimes our clients need to see that getting most, or even some of what they want, is better than continuing the fight in hopes of getting what they think they should get.

I commend all of my fellow lawyers who, time and time again, put their clients’ lives and interests ahead of their own. It truly is a beautiful thing.

In the right hands, mediation is a great tool to help clients make good decisions about their “wants.”

Enjoy the journey.

Please Click Here if you’d like to review my calendar of available dates and schedule a mediation with me. And thank you!
—Bill Ratliff

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