When I was a young boy my only concept of lawyers in society was derived from the one-dimensional images that I watched on television. Decades before programs such as Matlock and L.A. Law entered the living rooms of American households there was one fictional character who remained standing above the rest: Perry Mason. An iconic figure, Mason was depicted as an intelligent, polished, and shrewd criminal defense attorney who never lost a trial. He was aggressive but cool, personable though detached. Most television viewers probably considered Perry Mason to be the consummate attorney. [1]
Each dramatic episode featured Mason representing his clients with bold tenacity. A remarkably skilled interrogator, he pressured adverse witnesses to the breaking point in order to extract a confession that might secure the acquittal of his client. I strongly suspect that today a considerable number of litigants, if given the opportunity, would opt for an unrelenting courtroom warrior cut from the same cloth as Mason.
There are scores of attorneys who carry the mantle of Perry Mason despite the fact that we now live in a very different era. Litigation no longer monopolizes the province of dispute resolution. Some legal experts believe that roughly 80 percent of all criminal convictions are secured by means of a plea bargain or some other form of negotiated settlement which obviates the need for a trial. Similarly, the vast majority of all civil lawsuits are settled voluntarily before a trial becomes necessary.
Given the declining frequency of court trials perhaps attorneys and non-attorney mediators should evaluate whether Perry Mason is still relevant. Is the Masonian model of legal practice susceptible to fluent translation from the criminal courtrooms of the 1950’s and 1960’s into mediation conference rooms of the 21st century? More to the point, if Perry Mason sat down with you at the mediation table to discuss prospects for resolving a civil case would you consider him to be an asset or a liability towards the success of the mediation process?
Work of a Civil Litigator
Civil trial attorneys must perform a wide range of tasks in the execution of their duties. For purposes of this discussion some of the most common tasks are divided into four broad categories: a) advocacy, b) negotiation, c) collaboration, and d) counseling. Using as a basis for this argument various legal commentaries, empirical and anecdotal evidence acquired from others, and my personal observations, I have assigned the following percentages to each category: [2]
As a general rule, the majority of time spent by an attorney engaged in urban civil litigation involves the performance of a range of tasks where the art of advocacy predominates. [3] This might include the presentation of oral argument in court, drafting motions and other persuasive briefs, research and formulation of legal strategy, and so forth. The legal community tends to encourage lawyers to be more than mere advocates, they must be zealous advocates. And why not? The zealous advocate continues to represent the gold standard for American attorneys.
Transactional lawyers are typically engaged in various stages of collaboration and negotiation with other attorneys. But the same thing cannot be said for a good number of civil trial lawyers. Most states have very specific statutes which govern the formal disclosure of information and documents between parties in a civil case. Yet, many litigators are inclined to resist making such disclosures unless compelled to do so by court order. Some are of the opinion that a strong (as opposed to a passive) attorney is one who exploits opportunities to sandbag other lawyers by initiating pointless stalling tactics.
On average there is a lack of sustained and meaningful exchanges between civil trial lawyers. Negotiations often consist of little more than a cursory offer of settlement which is in turn answered with a brief note of acceptance or rejection. In fairness there are scores of attorneys who routinely meet and confer with one another in good faith. That being said, the importance of collaboration and negotiation between civil trial lawyers is downplayed by the dominant legal culture because with limited exception it refuses to aggressively encourage a spirit of fundamental fairness or reciprocity between attorneys.
Counseling no longer plays a dominant role in the daily affairs of most civil litigators. Legal consumers expect that an attorney will provide critical advice for the protection of their rights and interests. There is a vast difference, however, between simply imparting legal information and the function of providing genuine counsel.
Today it is not unusual to find civil litigators who advise their clients remotely with e-mail transmissions dispatched via computer, “smart phone,” or some other electronic device. Yet, in my view when a client is truly in need of counseling a virtual conference will not suffice. Real counseling by an attorney requires the establishment and cultivation of a professional, caring, and bilateral relationship between advisor and advisee. The overarching goal is to foster increased understanding and growth on the part of the client. There must be an authentic encounter between individuals during which the attorney: 1) renders timely and pertinent information, 2) listens empathically, 3) responds to client concerns, and 4) provides guidance without ambiguity. For a host of reasons beyond the scope of this essay, the efforts undertaken by some lawyers to provide this level of counseling are often sparse or non-existent.
Old Ways and New Wine
In the Holy Bible there is an intriguing account of a dispute involving members of three distinct Faith Communities with regard to the ministry of Jesus Christ. This controversy arises within a series of intense confrontations between Jesus and His critics. The detractors believed that the highly controversial teachings of Jesus were fundamentally blasphemous and heretical. There was a growing concern that Jesus was undermining the social and political influence enjoyed by members of the reigning religious establishment.
As the story unfolds the disciples of John the Baptist and some of the Jewish Pharisees ask Jesus to explain why He does not insist upon His followers engaging in fasting. John’s cohorts, like the Pharisees, were strict adherents to this Jewish ritual. The act of fasting was frequently associated with religious piety, repentance, or a period of mourning. Jesus does not expressly denounce fasting but instead He offers the following allegory:
“…No one sews a piece of unshrunk cloth on an old garment; or else the new piece pulls away from the old, and the tear [schism] is made worse. And no one puts new wine into old wineskins; or else the new wine bursts the wineskins, the wine is spilled, and the wineskins are ruined. But new wine must be put into new wineskins.”
Mark 2:21-22 (NKJV).
Jesus uses an illustration taken from common experience to address the broad implications of fasting as it relates to Christianity. He points out that efforts to join two dissimilar materials, one stretched and one rigid, will result in the materials rejecting one another. By the same token one cannot successfully place new, unfermented wine into old and rigid wineskins. Modernly we learn from science that when grape juice, sugar, and yeast begin to ferment carbon dioxide gas and heat are produced. As this chemical process develops an old wineskin will begin to expand but then it bursts at the seams because it is brittle. It cannot tolerate the excessive pressure. New wine must be placed in new and pliable wineskins that are capable of stretching to meet the challenge presented by the fermentation process.
Christianity and Judaism share some common traditions and they share many sacred texts. Nevertheless, the two religions are radically different. Jesus contended that the “new wine” of Christianity could not be patched in a piecemeal fashion to the long-standing principles and practices of Judaism. On a number of occasions, as here, Jesus wanted listeners to understand that strict adherence to tradition could have the detrimental effect of placing undue emphasis on external forms of religious practice instead of priority being given to the substance of one’s personal faith and relationship with God. He also believed that Judaism could not accommodate the liberating, redemptive, and transformative message of Christianity. The new wine of Christianity could only be fully realized if it was ushered into the hearts of humankind by means of a fresh, pliable, and expansive spiritual framework.
A Spirit of Cooperative Collaboration
The old wine versus new wine dichotomy should not be confined to theological questions. Most lawyers go about their work in a good-faith effort to litigate cases with a sense of justice and civility. But we cannot deny that the victory-at-any-cost mentality exhibited by some lawyers has not worked; it has not worked well for legal consumers and it has done nothing to advance the stature of the legal profession as a whole. Lawyers and consumers alike grow weary of dealing with attorneys at mediation who are overly aggressive, calculating, and confrontational. There is little patience for their sarcasm and hyperbole.
Mediation and litigation are two very dissimilar processes which are distinguished in part by competing practices and objectives. The goal of litigation is very clear, namely, to prevail over the efforts and interests of the opposing party. The litigation process is inherently adversarial. On the other hand, the mediation process is frequently characterized by one or more talks, discussions, writings, and/or meetings between the conflicted parties as facilitated by an impartial third-party mediator. The goal of these communications is to identify and develop a shared understanding of the issues in dispute, clarify each party’s objectives, identify the underlying interests that are at stake, and to encourage constructive negotiations between otherwise adverse individuals or entities.
When viewed in this context the formal mediation session or conference should be viewed not as an end unto itself but as part of a continuum. It is but one in a series of events and communications the sum of which I define as the mediation process. The ultimate goal of the mediation process is therefore the equitable resolution of a dispute without the need for initiating or continuing litigation. It logically follows that an attorney cannot bring the same mindset to mediation that he or she brings into the courtroom.
The role of an attorney at mediation must therefore be approached from a significantly different perspective than the traditional civil litigator model described above. The breakdown of percentages for tasks at mediation should be reflected as follows:
The principles underlying the Biblical message discussed earlier can be instructive for legal and mediation practitioners. When attorneys participate in mediation the role of advocacy must take a backseat to collaboration and negotiation. Lawyers are among the vessels who in concert with disputants and mediators must work out the mediation process. Mediation offers disputants a new model or “new wine” for the resolution of legal disputes. Traditional civil litigation and the Perry Mason paradigm are indicative of the “old wine” of the legal system. The zealous advocates modeled after Mason represent the “old wineskin” of the profession.
Attorneys must cease from wearing the “old wineskins” of adversarial and contentious behavior during the mediation process. The old wineskins are from their inception rigid and inflexible. We need a new vintage of attorney before, during, and following the conclusion of the mediation process. Lawyers must become the “new wineskins” for mediation.
New wineskins will be characterized by a spirit of cooperative collaboration. The cooperative/collaborative lawyer works in a common enterprise as a co-laborer with her client, adverse parties and their legal counsel, and the mediator. [4] Collaboration and cooperation are essential ingredients for the effective identification and refinement of issues and focused problem-solving. Settlement discussions should not be scripted by attorneys but instead there must be meaningful dialogue. These factors can have the added effect of lessening tension that might otherwise exist between individuals at mediation.
Meaningful collaboration, like meaningful counseling, will also require greater authenticity from each attorney. The cooperative and collaborative lawyer approaches the mediation process with a sincere desire to achieve a fair and just result, seriousness of purpose, and concern for the welfare of all interested parties. The cooperative/collaborative lawyer will also exhibit congruency. This means that a lawyer’s words will be consistent with his or her actions. [5]
Some lawyers will find it difficult to adopt a spirit of cooperative collaboration in their dealings with other parties and their attorneys. One group will reject this concept on the grounds that it may undermine a lawyer’s duty to zealously represent his or her client. Others will respond that employing cooperative collaboration principles may lead to an attorney gratuitously compromising the strength of the client’s case. Still others will say that this concept might place the client in a weakened bargaining position should mediation fail and a trial ensue. Whenever attorneys discuss prospects for settling a dispute there is always a risk that one or more of those consequences may materialize to a greater or lesser extent. I am convinced, however, that cooperative collaboration is exactly what is prescribed for parties and counsel at mediation.
Conclusion
Perry Mason continues to hold an honored place in American television folklore because for many he personifies the epitome of zealous advocacy. Consider the fact that more than fifty years after the advent of Perry Mason one of today’s longest running television programs, Law and Order, has capitalized upon the Masonian model with central characters like District Attorney Jack McCoy. I am not suggesting that Mason should be toppled from his Hollywood pedestal. I am simply arguing that he must be re-cast in a subordinate rather than leading role for mediation.
There is currently a schism between zealous courtroom advocates and lawyers who elect to work collaboratively with their colleagues. Litigators spend a great deal of time developing legal strategies. We must encourage lawyers to expend an equal amount of energy reorienting their thinking in favor of a more cooperative and collaborative model. The goal of greater cooperation and collaboration between participants at mediation is both necessary and attainable.
The Masonian model is antithetical to and works against the promise of mediation. It is not remedial but in fact it can actually result in widening any rift that may exist between disputants. The new wine of mediation requires the infusion of a new and liberating spirit for lawyers; a spirit that is pliable and capable of stretching to meet the challenges presented by the natural fermentation of issues that occurs during the mediation process. Mediators are in a unique position to influence attorneys to break away from old models of conformity and emerge transformed as new wineskins. Lawyers should consider implementing the following suggestions as they prepare for mediation:
1. Some attorneys arrive at mediation assuming that their ideas and proposals will not be favorably received. There are good and decent lawyers that wear the mask of a zealous advocate but who deep inside themselves carry a broken spirit caused by past disappointments. During mediation lawyers should lay aside all thoughts about “losing” and other negative outcomes in unrelated cases. They must instead draw upon positive lessons learned from other life experiences where a disagreement was resolved amicably.
2. Mediation briefs and related pleadings tend to focus upon points of contention. Lawyers should make a concerted effort to underscore areas of common ground, if any exist, between the parties.
3. Lawyers should actively solicit the insight, intuition and wisdom of the mediator. This is quite different from simply asking the mediator the render an opinion on the merits the case. The mediator may be able to help illuminate critical issues that the lawyer is unable or otherwise unwilling to appreciate.
End Notes
1 The original Perry Mason television series was broadcast on CBS from 1957 to 1966. Actor Raymond Burr starred in the lead role of Perry Mason.
2 This chart only pertains to civil trial (litigation) attorneys as opposed to civil “transactional” lawyers. I define transaction attorneys as those who chiefly advise clients on matters such as probate, family law, real estate, corporate governance, mergers and acquisitions, and similar issues. As a general proposition those attorneys do not routinely engage in trials and other court appearances with nearly the same frequency as their civil litigation counterparts.
3 I am intentionally making a distinction between the lawyer who practices in a metropolitan urban setting from those attorneys who practice in rural or sub-urban settings. I surmise that the percentages of time spent by the rural and sub-urban lawyer performing various tasks may differ considerably from the time spent by the urban lawyer. I will not venture to speculate, though, on what those particular percentages might be.
4 My use of the terms “collaborate” and “collaborative” is compatible with but distinguishable from the special meanings ascribed to those terms in the context of the Collaborative Law movement. At its core Collaborative Law principally seeks to align the interests of the clients and their attorneys in favor of (1) positive problem-solving, (2) transparent negotiations, (3) avoiding litigation, and (4) settlement of the dispute. (See, e.g., ABA Section of Dispute Resolution Draft “Summary of Ethics Rules Governing Collaborative Practice” at pg. 2 (October 10, 2009) < http://meetings.abanet.org/ webupload/commupload/ DR035000/sitesofinterest_files/ EthicsPaper(20091010).pdf
5 See Richard Dean Parsons and Joel Meyers. Developing Consultation Skills: A Guide to Training, Development, and Assessment for Human Services Professionals (San Francisco, CA.: Jossey-Bass Publishers,1984)
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