When Overconfidence Undermines Success in Mediation
Attorneys must have dual roles: for court they must be advocates; for settlement they must be counselors.
What if the lawyer’s role is confused in mediation? Sometimes, no settlement.
Why? When even well-intentioned lawyers, as advocates, exhibit (over)confidence in their cases, whether to impress, persuade or scare the other side into submission, or for any other reason, they often concurrently deliver the wrong message to their own clients.
The result? The client may be less able to see the potential risk of losing.
Consequently, the client may be more intransigent, less flexible, and less able to make the necessary concessions that lead to a negotiated outcome that both sides can tolerate.
I carry with me in my briefcase to every mediation an article copyrighted in 2010 by the American Psychological Association about the same issues, entitled INSIGHTFUL OR WISHFUL: Lawyers’ Ability to Predict Case Outcomes [Psychology, Public Policy, and Law, 2010, Vol 16, No. 2, 133-157].
Sometimes I have referred to the article in mediation, mindful however that the reference has risks of its own in angering an attorney or diminishing his or her credibility with the client. And sometimes, I have held my tongue about it.
But I am aware of it.
In essence, the article shows that generally lawyers are overconfident about the outcome of the case, which does not diminish with experience; they often don’t get it right; and sometimes they lead their clients in the wrong direction:
“Some research singled out the attorney’s estimate of the probability of success as the most crucial variable in shaping decisions whether to litigate or settle a case in controversy….[¶] … A lawyer who cannot accurately predict the outcome of a case or who does not thoroughly and efficiently appreciate the litigation risks may ignore alternatives to trial and advise the client to reject reasonable settlement offers. [Or, a] lawyer who underestimates potential outcomes may advise the client to accept an unreasonably lower amount in settlement than is warranted.” (Id. at 134-135).
Inasmuch as the client often has no real gauge except his or her own attorney in determining whether or not to settle or to litigate, an overconfident attorney can get in the way of resolution.
This presents a real challenge to the mediator.
If the mediator challenges the attorney on his or her confidence level in the outcome of the case, the mediator risks a self-defensive attorney’s anger/resentment/loss of trust or confidence. Or the mediator can potentially undermine the attorney-client relationship. Neither is a good outcome.
If the mediator agrees with the confidence level of the attorney, the client might be incorrectly inflated in the perception of the case and simply reject the idea of compromise altogether. That’s no good either.
In the best case, if the mediator, without judgment, can successfully introduce the possibility that none of us can foretell the future or how the judge or jury will decide, and/or the possibility that the attorney might be right but the trier of fact might still disagree, the mediator can at least discuss the risk of loss, the need for risk management and the rationale for compromise, concession and flexibility.
On the other hand, if the attorney adamantly disagrees for reasons of monetary self-interest, client satisfaction or retention, self-aggrandizement, or for any other reason, the attorney will simply undermine the potential success of the mediation.
Hopefully, as attorneys themselves gain more experience in mediation practice, or even obtain mediation training for themselves, attorneys will be better able to moderate their roles as advocates in mediation, emphasize their roles as counselors, and temper their opinions about their likelihood of success.
In that way, even if they feel strongly about their cases, they still may be able to emphasize to the client that the outcome is never guaranteed, but is simply an educated guess at best, and that the client does in fact have real risks in litigation
In this fashion, perhaps they can help their clients make better choices.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. More information about him is available on his website at http://karpmediation.com .