by Howard S. Mendelson, Esq.
IMAGINE, if all attorneys were cost-effective problem-solving peacemakers…
if all attorneys recognized that, but for the minority of cases which are sadly driven by egos and positions rather than rational problem-solving founded upon mutual goals and acquired trust, the vast majority of the cases we’re asked to handle call upon us to utilize our skills as a negotiator as opposed to a litigator. Negotiation rather litigation gets our clients the results they’re looking for quickly, cost-effectively and perhaps without hating the “other side”. And those are the same clients that generally end up paying and appreciating their attorneys, their clients; and who end up referring new clients to their attorneys. As any seasoned litigator will attest, even when your client is 100% correct and you know you could win every contested issue if you tried the case, the costs of litigation and trial, the inevitable delays (even before the coronavirus) associated with litigating and trying the matter to conclusion, the present value of real money as opposed to a pending claim, and continued animosity by and between the parties, are all legitimate reasons for resolving rather than litigating even the “slam-dunk winner.”
While I’m fond of saying “settle your losers and try your winners”, in a way, any case that goes to trial is a “loser”; ethical lawyers who exercise appropriate client control should generally be able to settle rather than litigate the disputes their clients come to them to resolve. Smart clients resolve their matters and have money to pay their clients. Not so smart clients insist upon being “right” and litigating their matters despite the obvious advantages of simply “getting it done” in accordance with their attorney’s recommendations; and those same not so smart clients may not have the money to pay their attorneys if they don’t resolve the litigation and, sadly, may choose to blame their attorneys if, for whatever reason, the client perceives the adjudicated result to be unfair to them. Client control is accordingly key; most of the lawyers hearing this webinar would prefer happy clients who can afford to pay their legal bills and will refer new clients to the attorney who wisely resolved their matter without the costs and acrimony of litigation.
Like life itself, negotiation is indeed both a skill and an art; we must use both our heads and our hearts, to cost-effectively problem-solve and, in so doing, make peace, get it done, and get paid. Successful negotiations are not about taking positions; they’re about demonstrating empathy and patience which many times our clients may not be able to successfully navigate without our assistance. The successful settlement of a dispute accordingly rests upon not only being prepared with the facts and understanding your client’s position; if we as attorneys are truly committed to settling the matter rather than exchanging discovery and otherwise “litigating” a dispute, we must initially be able to convince our clients to relinquish their understandable focus on their positions and how “right” they understandably perceive they are and to, instead, have them focus on establishing procedures by which each party can be fairly and cost-effectively be heard as to their underlying needs, fears, and objectives without the costs and acrimony of litigation