mediation mediateSeveral years ago, a judge called me to see if I could mediate a matter that was in trial in her department that day, starting at the lunch break. Flattered, I said I would. Little did I know that this mediation would become one of my most memorable.

One of the parties was a widow represented by a solo practitioner, while the other was a well-heeled company represented by a large law firm. The company accused the widow of having breached a contract, seeking almost $1 million in damages. It looked like the company had a good case and that such an outcome would be catastrophic for the widow, who had only minimal assets. I suspect this is why the judge called.

Try as I might, neither the widow nor (more importantly) her lawyer would or could entertain the thought that they might lose at trial. The fact that the trial judge had referred the matter to mediation during trial seemed to them to only confirm that they were right and the company was wrong, not the other way round. I suggested that perhaps the judge had suggested the in-trial mediation because an adverse result might be catastrophic for the widow. Perhaps the judge could see that adverse result as a probability, not a mere possibility.

The mediation failed, the trial resumed and the widow lost, big time. A woman in her 60’s, who should have been enjoying life, had suffered a catastrophic loss – how it eventually came out, I don’t know and have been afraid to ask.

To this day, I regret not having been more forceful with her lawyer. As a sometime trial lawyer myself, I know it’s easy to become so focused on the rightness (and righteousness) of one’s cause that one cannot see danger lurking. Sometimes the risks seem more theoretical and intellectual than real. But, to our clients, they are all too real in a very different way than to us lawyers. While I did ask the “what if…” and “could you withstand an adverse result?” questions, perhaps they were too impersonal. Perhaps I should have walked through the very real parade of horribles: the reading of the adverse decision, the entry of judgment and what that means, the execution on assets, filing bankruptcy, legal malpractice claims, etc.

The question is, when does a mediator cross the line into being too much of an advocate for settlement? Should a mediator drive a wedge between a lawyer and client when one sees the former essentially committing malpractice? While it’s nice to take the intellectual approach to such issues, what’s our duty when we see a catastrophe looming?

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