Lawyers are from Mars, Clients are from Venus and Mediators Can Help Communicate in Space
John Lande, who received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison and who began mediating professionally in 1982 in California, wrote the excellent synopsis below which summarizes empirical research showing the huge chasm in perspectives between many lawyers and their clients.
Mars (the lawyers) and Venus (the clients), sometimes have a hard time understanding each other as lawyers often focus only on monetary issues in legal disputes, which drives many of their clients crazy because they are also very concerned about a wide range of non-monetary issues.
1). Litigants’ Miserable Experiences in Litigation
As Jill S. Tanz, put it many litigants would describe litigation as “nasty, brutish, and long,” riffing on Thomas Hobbes’s famous phrase.
A lot of empirical research validates that observation. Litigation offers many potential benefits to individuals and society – and it also often creates great stress and other harms to parties’ intangible interests.
In her essay, Civil Litigation from Litigants’ Perspectives: What We Know and What We Don’t Know About the Litigation Experience of Individual Litigants, 25 Studies in Law, Politics and Society 151 (2002), Tamara Relis, concluded that “litigants seem to suffer in some way at nearly every stage in the litigation, whether precipitated by lawyers, judges, courts or simply ‘the system.’” Here are excerpts from her article:
[Their] experiences are basically reconstituted to fit into legal compartments that generally exclude many matters often most important to litigants. Moreover, clients receive little help from lawyers in dealing with the emotional realities of their circumstances. …
[C]lients often do not receive adequate costs information, at least not early on. Hence, clients in diverse dispute types commonly perceive charges as extortionate or unfair. Moreover, many do not feel they receive value for their money. …
[L]egal costs, normally out of litigants’ control, often end up being far more than they expect, despite little they can do about it. …
[Litigants] commonly suffer communication and comprehension difficulties thus frequently are confused by things they hear from their lawyers, and may not understand what is going on. Equally, despite their strong need to hear about how their cases are progressing, litigants often feel insufficiently updated, consequently feeling alienated and badly treated. …
[Some litigants] either hear about the insincerity of negotiations and/or perceive negotiating processes as unfair, sometimes viewing their focus on money as trivializing issues most important to them. Furthermore, numerous litigants feel left out of negotiations and consequently many feel obliged to accept any resulting offers (particularly due to much stress, pressure, worry, and incessant costs fears. …
[N]otwithstanding the emotional value of trials, large numbers of litigants suffer severe anxiety and stress, both before and throughout their time in court. This is exacerbated by the fact that litigants generally have misconceived expectations about courts, what courts do and how they do it. Once inside courts, litigants lose total control over their cases, are permitted only to advance truncated versions of their stories (despite their significant need to express themselves) without comprehending why, and experience feelings of frustration, disappointment, and humiliation because of how they perceive they were treated. Source: https://www.mediate.com/articles/lande-venus-mars.cfm
2). Why are Mediators Best Qualified to Help Lawyers and their Clients Resolve Their Communication Gap?
The role of a lawyer is different from the role of a mediator. This is exactly why mediators can be the hyphen between Mars (the lawyers) and Venus (the clients). The synopsis below should help you better understand how mediators can help lawyers and their clients file the blanks and communicate in space.
First, during a mediation, although the participants need to understand what the law is relevant to their dispute, the knowledge of the law is not the key factor. People meditate to find a solution to their conflicts and any options brought by the parties should be listened to and explored. As a result, it is extremely common, not to say the norm, that the settlement that is reached has little to do with the application of the law.
Second, mediators are neutral. The mediator’s job is to clarify the issues, make sure each party understands the other parties’ position, and be of assistance in the discussion to resolve the dispute. The mediator will work with the information given to him/her by the parties and their lawyers. As a result, lawyers and their clients mustn't omit to provide factual information to the mediators such as but not limited to the nature of the dispute, the specific issues to be resolved, the settlement history if applicable, the procedural status (discovery), pre-trial motions still pending before the trial judge, etc.).
Lastly, it is important that as a lawyer, you discuss possible alternatives with your client before the mediation session and convey to your client that the mediation will be a time to discuss not to fight. This will assist them in beginning to think along the lines of what is important to them and what issues are they willing to give up on or not. This line of thinking many times leads to creative options that lead to a resolution.
We at Mediation Path Silicon Valley, have a successful track record, both in our private practice and as appointment mediators by the Court during settlement conferences, of helping lawyers and their clients in designing creative solutions to supposedly unsolvable issues. therefore, even if your case is already in Court we can still work with you and your clients and contribute to alleviating some or all the disagreements at stake. Call us for a free consultation.