Everybody’s favorite mediator is back for a second season of Fairly Legal, as I’ve learned from the billboards and bus ads showing Sarah Shahi posing with a set of toy lawyers she is about to knock down like dominoes. I have no idea how this theme (if it is one) is going to play out on the show, but I’m a little concerned that it might feed into the common perception that lawyers are the enemies of mediators and the obstacles to settlement. I don’t think that is the case most of the time.
By the time cases get to mediation, the parties’ lawyers are often more anxious than their own clients to get the case resolved. They might be a bit worried that the case will not go as well at trial as the clients are hoping. They might be concerned about getting paid for the time that trial preparation will take. They might even be interested in getting the best result possible for their client, and they recognize that a fair settlement may represent the best result, all things considered. Most of the time, lawyers do not need to be knocked out of the way to accomplish a settlement. Most of the time, it’s more effective for a mediator to support the parties’ lawyers. I like to tell parties to pay careful attention to their attorney’s assessment of the case, because the lawyer has usually spent a lot of time thinking about how to present the case, and how likely their client’s position is to prevail at trial.
Lawyers often want to tell their clients that it is the client’s best interest to settle, but they may need the support of the mediator to convey that message. Treating a party’s attorney as an enemy is almost always a mistake. If a mediator does that, even in the occasional case where a lawyer might deserve it, the mediator is probably only going to antagonize the lawyer–and the client–and thereby lose a potentially useful ally in persuading a client to resolve the dispute.