Thursday, July 10, 2014

The Lawyer-Whisperer

Occasionally, facts come out in a mediation that are entirely irrelevant to the dispute at hand, yet appear to be true obstacles to a successful resolution of it.  Recently, for example, I mediated a pre-litigation employment dispute in which the employer company had been sold after the employee's termination.  That part was well known to both me and the opposing counsel.  What was not known to any of the participants in the mediation is whether the law firm handling the defense of the matter would be able to maintain the Corporation as a client once "NewCo." took over.  This meant that the Defense lawyer wanted to settle the case, but wanted to do so at an attractive enough rate that his work might gain the attention of the potential new client as the transition took place.
In an interview with the CEO of Pepsi on the news last week, Indra Nooyi declared that "women can't have it all", and yet I have also delicately scheduled arbitrations and motions, and settled cases to avoid a trial which would otherwise occur during a still-secretly planned maternity leave by many women lawyers.  As Nooyi suggests, many women professionals still feel the need to keep secret from their opposing counsel or others the plan to take a 3 or 4 month leave of absence, lest they take advantage of their "delicate state" (or absence).  Indeed, many agree with Nooyi that women professionals simply "can't have it all".
Practicing law, for most of us, is both a life-long career and a business.  Both factors play in over the span of life's milestones and business and economic challenges.  When they arise, I summon all of my diplomatic skills to respectfully confide (with permission of course) in the opposing attorney as to the little lawyer-secrets that have presented obstacles to resolution.  Usually, once I take them into my confidence, the other side rises to a respectful and more understanding place and agrees to a settlement that is attainable under whatever circumstances have declared themselves, rather than hold out for something that is only a potential in the future.
How do you handle lawyer-secrets that go beyond the facts of the dispute at hand?