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A family law practitioner wrote:
We have mandatory mediation in my state. I am a fan of mediations and find they work really well if everyone is prepared for them. In preparation for the mediations, I prepare a full “shell” of a settlement agreement and sit down with the client to go over each area we are going to try to resolve: custody, property division, alimony, fees, etc. I explain the process and the mediator’s style. I try to get the client ready as much as possible.
I have noticed a phenomenon at the end of the mediation. Even if the client is fully prepared, even if he/she has participated in the mediation all day long and has been heard, even if all issues are addressed and resolved, when the settlement agreement is finally printed (I am almost always the person that writes it, which is fine with me) and the client is reviewing the agreement, he or she unravels. The tears start coming, and the person starts freaking out about minutiae or starts bringing up random add-ons. For example, this week, a client started crying and debating whether she had to pack a toothbrush for her two-year-old in addition to clothing. This was an educated client.
Twice during these meltdowns, the clients have recently said, “Well, he is getting EVERYTHING HE WANTS.” Both times, it was completely untrue. I don’t know whether it is the loss of control or the knowledge that the litigation will end—or fear we have missed something—but these meltdowns are hard on me and test my patience.
I want to know how to counteract this meltdown/freak-out moment at the end of the day. I have tried telling the clients that it is really common to feel scared when the agreement is nearly finished, but warning them about how they might feel does nothing to curb the behavior.
How does one deal with the meltdown?
Mediations like this are incredibly common. The parties come together for a single day. They go to separate rooms (of which I am not a fan). They spend all day negotiating, with the mediator shuttling back and forth.
Then, after everyone is tired and worn down (sometimes after 10 PM), a deal is struck. The documentation is prepared and signed, and the case is closed.
The mediator is happy because the case was resolved. The lawyers are happy because they’re finished with their clients and won’t have to deal with them any further.
However, the clients aren’t always happy. In fact, they’re sometimes upset, as reported by the lawyer above. They have emotional outbursts, or they go home and have second thoughts. It’s more common than not that they express some regret about the deal.
Why is it that the sellers of the service are happy and the buyers are not?
A Better Process for Handling Mediations
If I had my druthers, we wouldn’t sign the deal during the same day it was negotiated. We’d mediate, sleep on it, and sign it after the lawyers had a chance to get it documented properly (having slept) and the parties had a chance to reflect on the deal.
Yep, some of the clients would back out after changing their minds. That’s true.
But is the objective to make the deal, or is it to deliver the process that people need? Is the objective to make the lawyers and the mediator happy, or is it to make the client happy?
Some lawyers argue that getting to resolution is good for the client. I agree. But at what cost? Is settlement worth the strong-arming that often takes place? Is it worth damaging the relationship? Is it worth diminishing trust?
And here’s the reality, at least in my experience: the mediations that unravel and don’t get signed shortly after mediation get signed eventually. Mostly, those clients come to an agreement after some time passes.
Yep, they may not have been emotionally ready. They may have a need for more processing, more thinking, and more emoting. But that’s life. Our decision to “rip the Band-Aid” off, made with benevolence, was well intentioned but unnecessary.
The Ramifications of Rushing to Resolution
Bottom line—and you know that’s where I live—I’m not sure the quick settlement is good for you or your practice.
- I’m not sure getting to the finish line is worth the emotional damage to your relationship with your clients.
- I’m not sure having clients finish the case in meltdown is what you want.
- I’m not sure that clients tell the world how wonderful you are after the file is closed if they feel like they are being forced to live with a deal you made them make.
If your client wants the deal done that night, then go for it. However, if you get pushback, then it’s worth considering why you’re pushing to get it done. Is it for you, or is it for the client?
The lawyer who wrote to me already knows the solution to the problem. He knows how to prepare the client, cajole the client, keep the client moving, and get the deal closed. The lawyer has the skills to get the job done, even though his patience gets tested. The question is whether it’s worth what it’s costing him in reputation. What do his clients say when they leave after one of these sessions?
Sometimes I think the things that nag at us—the ones that drive us a little nuts—are the things we don’t feel great about doing. Sometimes the stress we feel about these moments is a sign. Sometimes it might mean we’re doing something that doesn’t feel perfectly right. That’s food for thought (and this comes from someone who doesn’t really like thought).
So, back to the bottom line: I want your practice to grow and prosper. I’m not sure that 10:00 PM settlements, shoved down the client’s throat, are a path to growth.