How Advocacy Fits in Effective Mediation Chapter 27
Jeff Kichaven is an independent mediator in Los Angeles, an adjunct professor at Pepperdine University School of Law in Malibu, Calif., and a fellow of the International Academy of Mediators. He is a member of Alternatives’ editorial board.
• “Winning isn’t everything, it’s the ONLY thing!”
• “A winner never quits, and a quitter never wins.”
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 expense, risk and hassle to avoid the reality, the perception, and the stigma of a loss.
Generally speaking, we are right to do so. Attorneys’ duties are well stated in, for 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, 530 P.2d 589 (1975); Munoz v. Davis, 141 Cal. App. 3d 420, 430, 190 Cal. Rptr. 400 (1983); Norton v. Hines, 49 Cal. App. 3d 917, 924, 123 Cal. Rptr. 237 (1975). Attorneys are supposed to press every lawful advantage, right up to the “bounds” of the law, to be zealous advocates for their clients. In other words, to win.
Nobody seriously questions this articulation of attorneys’ 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?