Best practices encourage attorneys to fully advise clients of the risks and benefits of continuing settlement negotiations after one party has received an offer within the client’s state acceptable range. The client’s attorney might believe his client can obtain a better offer by rejecting it and negotiating further, but as most lawyers know, the client runs the risk of ending up in trial with a worse outcome. Unfortunately, it appears that lawyers are more vulnerable to legal malpractice claims in such situations.
Many lawyers document and then do not deviate from the client’s agreed-on strategy, which may be a good practice in mediation as well. However, an experienced mediator will have had conversations with attorneys on both sides and will be aware of the ethical considerations and risks of liability that each attorney is facing. It is wise for all involved in mediation to be communicate openly with each other and a skilled mediator will assist in guiding the conversation.
While a mediator cannot disclose whether an offer is a final bottom line without the participant’s consent, he can help the attorneys and their clients intelligently consider and evaluate the risks and benefits of continuing to negotiate versus accepting an offer. An experienced mediator will document the attorney’s advice and the client’s decision regarding negotiation strategy and whether or not to push their luck with a better offer; thereby potentially helping to reduce the attorney’s risk of ethical problems or professional liability. Yet another reason to seek out a mediator to assist in delicate or complex negotiations to resolve litigation or civil disputes.