There’s a reason we are called ‘counsel’: lessons learned at mediation

This article, written by attorney John Perten, was originally published by New England Biz Law Update and can be found here.

We go by many names: lawyer, attorney, litigator, counselor, advocate – and these labels are often used interchangeably.

We are taught to advocate zealously for our clients. In fact, we are obligated to do so. In the litigation setting, many take this to heart in everything we do. There is a dispute, and our job is to resolve it by zealously advocating our client’s position.

Litigation, by nature, is adversarial. But, is that the best approach? To properly represent our clients in an adversarial setting, do we have to be adversarial too?

I like to think of myself as a “counselor.” We may be “lawyers,” “attorneys” and “advocates,” but isn’t the essence of our role to counsel our clients? Isn’t our primary job to explain options, risks and benefits, in order to help our clients decide how to proceed – whether it be by zealous advocacy or a more conciliatory approach?

I recently worked with a skilled mediator. The mediator advised the client that the question of right and wrong should not drive the mediation. The ability to pound the table and explain why the other side’s case was unlikely to succeed, in and of itself, was unlikely to lead to a resolution.

Rather, the mediator approached the mediation as a discussion, with the mediator helping us to “counsel” our clients as to the strengths and weaknesses of the case as well as the benefits and risks associated with settlement as opposed to proceeding with litigation. The case settled, and the parties shook hands at the end.