I was thrilled that my recent post, Focus on Party Decision-Making, prompted a stimulating conversation on the DRLE listserv, including thoughtful comments by Mary Bedikian, Doug Frenkel, Dwight Golann, Deborah Hensler, Charlie Irvine, Andrew Mamo, Cash Nickerson, Peter Philips, Jim Stark, Jean Sternlight, Nancy Welsh, and Roselle Wissler.
This post discusses some issues in the conversation about problems with promoting party decision-making and addresses Deborah’s question about what law faculty can do to teach students to help clients make good decisions.
So What’s the Problem?
Clients and their attorneys and often have fundamentally different perspectives for multiple reasons. I described this in Lawyers Are From Mars, Clients Are From Venus – And Mediators Can Help Communicate in Space, which provides more detail about the following points.
Parties are critical decision-makers in litigation, attorney-client relationships, and mediation, as described in this recent article.
Undoubtedly, many attorneys do a good job of representing their clients’ goals and interests, but too many do not. Although mediators may be able to help, they sometimes exhibit the same problems as attorneys or can’t effectively counteract problems with attorneys’ approaches.
As noted in my inter-planetary post, Tamara Relis wrote that attorneys and clients live in “parallel worlds.” (This version of the post includes extensive excerpts from an empirical literature review she published.) Attorneys often are focused only on monetary outcomes whereas clients often are also concerned about other substantive and procedural issues. Attorneys may consider clients as too “emotional” or “unreasonable,” and clients often are very dissatisfied when communicating with their attorneys.
Law schools generally don’t prepare students to work well with clients. A recent study found that new lawyers often felt that they lacked the following skills:
- The ability to gain a client’s trust, gather relevant facts, and identify the client’s goals.
- The ability to communicate regularly with clients, convey information and options in terms that a client can understand, and help the client choose a strategy.
- The ability to manage client expectations, break bad news, and cope with difficult clients.
There are inherent principal-agent tensions in attorney-client relationships based on fee arrangements. This is true regardless of whether attorneys are paid on contingency or an hourly basis – and even when attorneys represent clients pro bono.
Lawyers have to go to law school, but there is no “client school” to teach people how to be good clients in legal cases. So lawyers need to train their clients how to be effective clients. Many lawyers aren’t good at this or don’t even try.
Educating clients in a case often requires ongoing efforts over a period of time, as I described in this post. That’s a basic reason why it’s so important to prepare parties before mediation sessions instead of starting to educate them only during stressful mediation sessions.
Appropriate preparation varies based on the context. For example, in complex civil cases, attorneys and mediators can carefully prepare clients before mediation sessions. In day-of-trial small claims cases involving self-represented litigants, courts can provide helpful materials and videos even though they do not provide individualized assistance.
Decision-making is related to – but distinct from – voice. In general, parties’ planning for behind-the-table decision-making should precede expression of their perspectives and positions across the table. Pre-session preparation and decision-making should make the expression more effective and satisfying during mediation and negotiation sessions.
What Can Law Professors Do to Address These Problems?
If you want to teach your students how to help their future clients make decisions, here are some things you can do.
Require Students to Read Lawyers Are From Mars, Clients Are From Venus. ‘nuff said.
Focus on Parties’ Roles Throughout Relevant Courses. You can specifically highlight the role of parties in your courses whenever appropriate. Don’t treat parties simply as pawns in legal or dispute resolution processes.
Include Meaningful Party Roles in Simulations and Competitions. You can include meaningful roles for parties in simulations and competitions. Some simulations do not include roles for clients at all, and some roles of parties are two-dimensional cardboard characters. You can add or elaborate party roles in simulations you have used that don’t include fleshed-out client perspectives. In competitions, you can give “parties” distinct realistic roles so that they don’t essentially function as second-chair attorneys.
Use Simulations Focusing Solely on Preparation. Preparation for negotiation or mediation is an important opportunity to help parties participate effectively in those processes. For example, I used a simulation of screening for domestic violence in a divorce mediation without actually simulating a mediation session. This provided a fabulous learning experience. Although this simulation focused more on assessment than preparation, it illustrates the potential of simulating only stages before the final mediation or negotiation sessions.
Use Multi-Stage Simulations. Multi-stage simulations enable students to practice preparing parties for negotiations and mediations. This also can help students “get into” their roles as parties, which can be hard for law students who generally are oriented to having practitioners’ mindsets.
I used simulations with six stages in negotiation and family dispute resolution courses, which produced outstanding results. Students learned valuable lessons when “clients” hated that their “lawyers” didn’t listen and were “controlling,” and when “lawyers” said that their clients were “unreasonable.” On the other hand, some students playing lawyers had good intuitive skills in working with their clients, who really appreciated their help.
This webpage contains lots of information about multi-stage simulations, including descriptions of simulations by many of our colleagues. You can use two-stage simulations involving a substantial stage for students to prepare for negotiation or mediation.
Help Students Focus on Parties’ Intangible Interests in Simulations and Stone Soup Interviews. This post provides a detailed list of questions to elicit individuals’ and organizations’ intangible interests in disputes. Students can use some of these questions in simulations and Stone Soup interviews of practitioners about how they deal with such interests. This is important because attorneys and mediators often ignore or discount such interests, which can be very important to their clients.
Use the Terms “Pre-Mediation-Session” or “Before Mediation Sessions.” Many faculty and practitioners habitually use the term “pre-mediation” referring to preparation for mediation sessions. This term sends the counter-productive message that preparation isn’t really part of mediation and isn’t very important. It’s hard to change this habit. Try.
Take Advantage of LIRA. As the title suggests, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions is specifically designed to help practitioners help their clients participate as effectively as possible in litigation, negotiation, and mediation. It includes detailed chapters describing individual and organizational parties’ intangible interests in litigation. It has three chapters describing how lawyers and mediators can help clients consider their interests and risks.
It provides a simple framework for parties to assess their interests and risks in their disputes. This involves calculating their “bottom line,” which is the estimated value of their best alternative to settlement reduced by the tangible and intangible costs of continuing to litigate.
This contrasts with traditional positional and interest-based negotiation approaches, which emphasize only some of these elements. For example, in positional negotiation, practitioners often focus on intangible interests only at the end of the process as a gap-closer to finally reach agreement. In interest-based negotiation, practitioners generally focus on BATNAs only as tripwires to end negotiation.
The LIRA framework integrates BATNA values and future tangible and intangible litigation costs in a single framework that parties and attorneys can use and adjust throughout a case.
The book also includes numerous practical appendixes. One appendix includes a list of things to discuss before mediation sessions and recommends that, when preparing for mediation sessions, attorneys and mediators should have conversations about key sensitive issues and then arrange for attorneys to provide written material about more objective issues.
You can read the LIRA book and incorporate its insights in your teaching. (Email me if you want to get an electronic review copy.) Ideally, you would assign the LIRA book as required reading. If that doesn’t fit into your syllabus because you want to require other readings, you certainly can make it a recommended reading. This post collects short blog posts and videos you can use, including applications of LIRA in transactional negotiations and criminal cases.
Recommend That Your School Offer a Course on Strategic Case Evaluation and Management. In real life, attorneys and clients live through cases from the outset. We generally teach negotiation and mediation focusing primarily or exclusively on the final stage of cases.
A strategic case evaluation and management might cover topics such as:
- conducting initial client interviews
- developing and refining a legal theory of the case
- developing an investigative strategy including a discovery plan
- developing a good working relationship with counterpart lawyers
- using experts as consultants and/or witnesses
- developing an evaluation of likely court outcomes
- developing a goal and strategy for possible negotiation
- using mediators, arbitrators, or other neutrals
These ideas grew out of a study I did interviewing respected lawyers about the cases they settled most recently, Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better.
Such a course would be great preparation for the revised bar exam, which will test client counseling and advising, negotiation and dispute resolution, client relationship and management.
This memo fleshes out ideas for such a course.
I’m sure that lots of faculty teach their students to promote clients’ decision-making. What have you done? How well has it worked?
