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Sometimes, you have to give the clients what they want by offering them what they need. Sometimes they want someone to assign blame. Sometimes they just need to tell their story. Your job, Counselor, should you choose to accept it, is to stay out of their way. I was recently asked to arbitrate a dispute between a homeowner and a contractor. The total claim was about $25,000. The ADR administrator suggested me, in part, because I had spent two years as a carpenter before brushing up in law school on such Latin phrases as “Quod factum est, cum in obscuro sit, ex affectione capit interpretationem.” The administrator also knew that both clients — a husband and wife on each side — were highly emotional. The lawyers were having trouble getting information from their clients to exchange by the agreed deadlines. I walked into the arbitration room with no other advance information. Enmity hung in the air. Evidence littered the room. Stacks of papers, overstuffed five-inch exhibit binders and boxes lined the walls. Rolls of plans were stacked like muskets ready for firing. There were all the makings of a long bloody siege. The lawyers quickly confirmed that the time needed for openings and presentation of the case would far exceed the scheduled two days. The $25,000 in dispute started to look paltry compared to the legal and arbitration fees about to hemorrhage. I caucused with the lawyers. Yes, it really would take all this time. Yes, all the clients were angry and wanted to arbitrate. No, the cost did not make sense. I told them I was happy to arbitrate, but that in my briefcase, in addition to the agreement to arbitrate, I had an agreement to mediate. Would they and their clients reconsider mediation that had been offered and rejected before? If, after a few hours, we weren’t making progress, we would commence the arbitration in the afternoon. The options were discussed in a joint session with the clients. All agreed to mediate first. After my mediation opening and without prearrangement, each lawyer spoke for less than five minutes before doing what lawyers hate to do, they fell silent. The clients took over. We lived the job from each perspective: signed the contract, paid the deposits, cleared the land, built the house, dealt with subs and cried foul at every turn of events. There was some huffing, some interruptions, some icy stares and more than a few tears. Before too long, the clients were talking not at, but with, each other. They didn’t agree on everything, but they did listen. Until then, the only listeners had been their family, friends and lawyers. LETTING GO While the earlier telling and retelling confirmed their singular vision of events, this opportunity brought them to the point of letting go and negotiating. The case settled and we had a written agreement before rush hour. Was everyone ecstatic? No, but they were satisfied. When in the mediation, the lawyers took a backseat to their clients and did not try to control the discussion, but rather they advanced the cause. They turned into coaches and calming advisers while remaining ready to be staunch advocates whenever necessary. The easy lesson is that a mediation before a lengthy arbitration or trial is almost always worth a try. The difficult lesson is the importance of letting the client speak unfettered. At some point they will testify — the mediation room is a safe place to speak. There is a catharsis in expressing feelings that often leads to more effective listening. However, unfettered does not mean unprepared. Lawyers need to coach the clients first, advising them to avoid blaming the other party, helping them frame the story coherently, and focusing on their own feelings and the impact of another’s actions. Lawyers should do most of their talking before the session, but should speak up on legal points during the session. They should advise their client how the negotiated agreement compares with their options away from the table. Incidentally, the translation of the Latin I quoted in the second paragraph is, “When there is doubt about an act, it receives interpretation from the (known) feelings of the actor.” William DeVane Logue is a solo practitioner in West Hartford, Conn.

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