By Charlotte E. Thomas
Special to the Legal
Recently, Harrie Samaras and Judy Weintraub outlined in The Legal Intelligencer “Ten Ways to Introduce Mediation to Opposing Counsel.” I confess that I do not have difficulty extending an invitation to mediate, but given some of the “RSVPs” that I have received, I sometimes wonder whether our professional responsibilities include relaying to clients the fact of an invitation to mediate. From time to time, my offers to mediate have been declined with the off-the-cuff response, “Mediation is too expensive,” or, “Why can’t we settle this ourselves?” When the response is immediate, it is pretty easy to conclude that the client has not been consulted in declining the mediation offer.
There are several reasons that lawyers should convey offers to mediate to their clients, thereby allowing the clients to evaluate the pros and cons of mediation before it is declined.
First, choosing mediation as a dispute resolution process is as significant as selecting a jury trial or arbitration, and it certainly could affect cost. Rule 1.4(a)(2) of the Pennsylvania Rules of Professional Conduct requires lawyers to “reasonably consult” as to the means by which the client’s objectives are to be reached. Since mediation certainly is a process that could effectuate a client’s objectives, it follows that clients should be consulted about an opposing counsel’s mediation offer. Sure, we can all dream up instances when an offer to mediate would be “unreasonable,” thereby obviating the need for client consultation, such as after a jury has concluded deliberations and is about to read its verdict. Normally, however, offers to mediate occur during litigation “windows of transition” – such as after discovery but before dispositive motions. In such “normal” situations, Rule 1.4(a)(2) can be read to require client consultation.
Second, the fact that the adversary wants to discuss settlement in an organized process is important information. It can convey the adversary’s appetite for litigation and inform a client’s litigation cost-benefit analysis. As such, it should be a part of the information explained to permit the client to make an informed decision regarding the strategy for the representation under Rule 1.4(b).
Finally, an offer to mediate is an offer to try to settle a dispute – almost but not quite a settlement offer. Everyone knows that lawyers have the duty to convey settlement offers to their clients and to abide by their client’s decision whether to settle. (Rules 1.2(a), 1.4(a).) To be sure, Rule 1.2(a) does not expressly govern invitations to mediate, but maybe when read with Rule 1.4(a)(2) we should just say “it’s close enough.”
The rules may require the disclosure of offers to mediate without any added gloss. But in the final analysis, consultation with a client is simply the right thing to do.
Charlotte E. Thomas is a partner with Duane Morris, where she practices in the area of complex business litigation. She represents parties in securities actions, broker-dealer and financial adviser arbitrations, lender liability actions, directors and officers actions, intellectual property lawsuits, environmental and toxic tort actions, actions under 42 U.S.C. § 1983 and the defense of class actions. She can be contacted by emailing firstname.lastname@example.org.