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Zealous Advocacy, Mediation, And The Tangled Pursuit Of The "Win"

Winning and What it Is
"Winning isn't everything, it's the ONLY thing!"
"A winner never quits, and a quitter never wins."
"Just win, baby."

No matter how we put it, we are obsessed with "winning," both for our clients and for ourselves. Whether in court or the negotiation room, we go to great cost, risk and hassle to avoid the reality, the perception, and the stigma of "loss." Generally speaking, we are right to do so. Our duties are well stated in, of example, Ethical Consideration 7-1 of the American Bar Association's Model Code of Professional Responsibility: "The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law." California courts have long acknowledged this obligation [see, e.g., Smith v. Lewis (1975) 13 Cal. 3d 349, 365, 118 Cal. Rptr. 621, 530 P.2d 589; Munoz v. Davis (1983) 141 Cal. App. 3d 420, 430, 190 Cal. Rptr. 400; Norton v. Hines (1975) 49 Cal.App.3d 917, 924, 123 Cal. Rptr. 237]. We are to press every lawful advantage, right up to the "bounds of the law," to be zealous advocates for our clients. In other words, to win.

Nobody seriously questions this articulation of our obligations. But the trickier questions are, what does it mean to win, and which processes and tools are best designed to accomplish a win, properly defined?

We have all been in the frustrating situation of having clients who insist that "winning" requires the infliction of unachievable amounts of suffering on the other side, when they would be much better off if they would only focus on setting realistic goals for themselves, and then work to accomplish them, regardless of what happens to the other side.

Tools for Winning

Meaning of Winning

Fortunately, there are tools which are designed to change our clients' conception of what it means to "win." The successful implementation of these tools serves our interest as lawyers and provides us the benefit of having more satisfied clients---the kind who pay bills, pay them more promptly, pay them more fully, and are less likely to sue for malpractice. To understand how to use those tools, it is first necessary to delve into the world of negotiation theory; then a peek into the structure of mediation.

Negotiation and Collaboration

Negotiation scholars such as the University of Michigan's Robert Axelrod who focus on game theory have developed an elaborate literature on the incentives for parties to approach a given negotiation in either the "clobber the other side" or "satisfy my own needs" mode [The topic is given perhaps its best treatment in Axelrod's book, "The Evolution of Cooperation."] The game theorists believe that, in most cases, a party out to satisfy his or her own needs will likely end up with greater wealth at the end of negotiation than a party out to clobber the other side, so long as everyone else in the negotiation also sets out to satisfy their own needs, or can be persuaded to do so. In most negotiations, parties are in fact out to maximize their own wealth; the rational party will, therefore, try to persuade others to negotiate in a "satisfy your own needs" (cooperative, or collaborative) mode, and will lead by example. The "clobber the other side" (defecting, or combative mode) will be used only where collaboration does not work.

What, then, are the situations in which collaboration does not work? What are the incentives to engage in combative negotiation, even though that style is likely to lessen the number of chips in your client's pile at game's end? Are there ways that lawyers can help clients stay in, or move into, the collaborative mode, knowing that collaboration (when reciprocated) leads to greater accumulation or conservation of wealth, and accompanying client satisfaction?

Axelrod and other game theorists have identified two principal incentives which lead parties, and appropriately so, to define "winning" in terms of "clobbering the other side," and to negotiate in the combative style as a result. The first is the situation in which the "other side" is irrational, and will not respond appropriately to a collaborative negotiation strategy. The second is the situation in which you believe that you can eat the other side alive.

Virtually all lawyers have been in situations where they believe that the other side will not respond appropriately to a collaborative negotiation strategy. You would be willing to take reasonable and rational positions; you would indicate an openness to persuasion if the other side will provide you with information; you would refrain from "take it or leave it" ulitmata; you would be willing to do all this, and more, if only you thought that the other side would reciprocate. But you believe that the other side is incorrigibly combative, the stereotype of the "Rambo" litigator. So, why bother with collaboration? The other side will only exploit you.

When we sit in our own offices and conference rooms and confer with our own associates and clients, it is too easy to demonize the other side and overstate the strength of our own side of the case. We lawyers---sometimes inadvertently but perhaps sometimes not---frequently fuel those flames. We are concerned, often legitimately so, that if we do not express exceptional confidence in our clients' cases from the get-go, the business will shift to the lawyer down the street who will. But many times, we indulge our client's expectations early at the expense of having to disappoint those expectations later, and pain of the latter is in direct proportion to the enthusiasm of the former. It can be excruciating, we have all been there, and ways to avoid the predicament are greatly to be desired.


Happily, mediation, through its very structure, is a helpful tool. In the hands of skilled mediators and counsel, the process can be designed to minimize the incentives to engage in combative negotiation and enhance the likelihood that the parties will engage in wealth-maximizing, client-satisfying, collaborative negotiation. It's not magic. It comes form the ability of all parties, and counsel, to listen, and to talk. It's typically set in motion at the very start of the process.

In the civil litigation context, most mediations begin with a "joint session," with the mediator, the plaintiff and defendant (or their representatives, if they are entities), and their lawyers present. Everyone is generally given the opportunity to talk and the accompanying responsibility to listen. Lawyers generally deliver a summation of the strengths of their case, based on the facts and law available to them at the time. These presentations resemble closing arguments to a jury. They can be forceful and persuasive. For each side, it is generally the first opportunity to see the case as the other side sees it, with the other side's spin and focus, with the vigor of the other side's advocacy, as it is likely to be seen by the judge and jury. Consider what this can accomplish:

When you address the other side. You have been concerned that the other side is incorrigibly combative; that they will not respond rationally to a presentation of the true strengths of your case. As a result, you have been reluctant to negotiate collaboratively. If they are dead-set on clobbering you, even the game theorists would acknowledge that you are correct to clobber right back. But when you actually present your case to the other side, face to face, their reaction is generally quite different. The folks on the other side are generally not stupid, and are rarely so stubborn or ideological about the litigation as to fail to respond appropriately to what you have to say. You can generally see it on their faces and in their body language, if not hear it in their words.

In mediation after mediation, clients and lawyers so chastened---both on your side and the other side---come to change their negotiating tune. The desire for clobbering is replaced by a desire for finality: a desire to eliminate the enhanced risks (newly perceived) of continued litigation, to eliminate the certainty of the mental, emotional and financial drains of continued litigation, and so get on with one's career and life with a "bird in the hand" settlement that satisfies the client's own needs reasonably well, as compared to the alternative. It is a clear "win," albeit differently defined. It is the best opportunity available for the satisfaction of the client's needs. When we enable our clients to achieve this goal, we exquisitely fulfill our obligations under Ethical Consideration 7-1 and California law to represent and advocate our clients' interests with zeal.

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