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The Represented Client in a Settlement Conference: the Lessons of G University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 1991 The Represented Client in a Settlement Conference: The Lessons of G. Heileman Brewing Co. V. Joseph Oat Corp. Leonard L. Riskin University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Dispute Resolution and Arbitration Commons Recommended Citation Leonard L. Riskin, The Represented Client in a Settlement Conference: The Lessons of G. Heileman Brewing Co. V. Joseph Oat Corp., 69 Wash. U. L.Q. 1059 (1991), available at http://scholarship.law.ufl.edu/ facultypub/669 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES THE REPRESENTED CLIENT IN A SETTLEMENT CONFERENCE: THE LESSONS OF G. HEILEMAN BREWING CO. V. JOSEPH OAT CORP. LEONARD L. RISKIN* TABLE OF CONTENTS I. A HISTORY OF THE CASE WITH EMPHASIS ON THE PERSPECTIVES OF THE PARTICIPANTS ..................... 1066 A. The Dispute .......................................... 1068 B. Perspectives on Settlement Conferences ................. 1075 L Lawyer-Client Relationships: Traditionaland Participatory...................................... 1076 2. Negotiation: Adversarial and Problem-Solving ...... 1078 a. AdversarialNegotiation . ................. 1078 b. Problem-Solving Negotiation ................... 1078 3. The Role of the JudicialHost ..................... 1081 a. FacilitatingAdversarial or Problem-Solving Negotiation .................................... 1081 b. Raising a Fist or Extending a Hand ............ 1083 4. Relations Among the Perspectives .................. 1085 C. The District Court Revisited ........................... 1087 D. In the Court of Appeals ............................... 1089 1. The M ajority ..................................... 1090 2. The Dissents ...................................... 1091 a. The Coffey, Ripple, and Manion Dissents ....... 1092 © Copyright Leonard L. Riskin, 1992. * C.A. Leedy Professor of Law and Director, Center for the Study of Dispute Resolution, University of Missouri-Columbia School of Law. B.S., 1964, University of Wisconsin-Madison; J.D., 1967, New York University School of Law; LL.M., 1974, Yale Law School. I am grateful to Robert A. Baruch Bush, Melody Daily, Catherine Damme, Deborah Doxsee, John Martin, Nancy Rogers, Frank Sander, Margaret Shaw, and Charles Wiggins for their com- ments on drafts of this Article. 1059 1060 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 69:1059 b. The Posner and Easterbrook Dissents ........... 1095 II. THE REPRESENTED CLIENT IN THE SETTLEMENT CONFERENCE ............................................. 1097 A. Advantages and Disadvantages of Client Attendance in Settlement Conferences ............................... 1098 1. "Client-Centered"Arguments ...................... 1099 2 Lawyers' and Judges' Perspectives .................. 1103 B. When Should a Judge Mandate or Otherwise Encourage a Represented Client to Attend a Settlement Conference? .......................................... 1105 C. A "Representative with Full Authority to Settle the Case" ................................................ 1108 D. The Obligations of the Represented Client in the Settlement Conference ................................ 1112 III. CONCLUSION ............................................. 1114 Several years ago, I mediated two personal injury insurance claims on the same day.1 In the first case, the clients participated along with their lawyers; in the second, they did not. The clients' presence made for vast differences in the content and style of the mediation and in my own experience. The first case involved an automobile accident in which the victim (I will call her "Alice May") suffered serious injuries and her automobile sustained great damage. Ms. May sat beside her lawyer. For the de- fense, the claims adjuster (I will call her "Grace Green") assumed the client role,2 and a local attorney hired by the insurance company repre- sented the insured. The room crackled with emotion as we discussed the case. In earlier negotiations Grace Green had demanded documentation of Ms. May's damage claims. Alice May was hurt and angry because she felt that Grace Green had "called [her] a liar." Ms. Green also was entangled emotionally. She feared being duped, and although she did not express this until late in the session, she did not want Alice to dislike her. A highly charged exchange between the clients consumed a major por- 1. Mediation is a voluntary process in which a neutral third party helps others resolve a dis- pute or plan a transaction, ordinarily by facilitating negotiations between the participants. Unlike a judge or arbitrator, a mediator lacks authority to decide the case. See LEONARD L. RISKIN & JAMES E. WESTBROOK, DIsPuTE RESOLUTION AND LAWYERS 196-249 (1987). 2. I say "client role" because the claims adjuster was not a party to the underlying dispute in the same sense as was the insured. 1991] THE REPRESENTED CLIENT 1061 tion of the mediation; raw feelings spilled over the mahogany conference table. The clients' conduct in the mediation, and their comments after- ward, suggest that this conversation was essential to the settlement. Each client felt she had earned the other's respect, and each seemed to think that achieving this kind of "balance" was valuable in itself. More- over, participation helped them conclude that the resulting monetary agreement was fair. Stated simply, the presence and direct participation of both clients focused attention on the parties' relationship. Achieving mutual respect became an important goal of the mediation. The clients' conversation could not have taken place unless lawyers and the mediator-the "professionals"-allowed it. During this conver- sation, the professionals did almost nothing, and I felt extremely tense and uncertain about my role. I had relinquished control, and had little idea where the conversation would lead. Worse, I was a professional mediator and a lawyer; I was being paid for this. Surely there was some- thing I should do. I think the lawyers may have had similar reactions. The second mediation arose out of a claim of police brutality in con- nection with an allegedly invalid arrest. Only lawyers attended.3 The defendant's lawyer, a local practitioner, had been hired by the defend- ant's out-of-state insurance company. This session felt drastically different from the other. Although the claimant alleged intentional, racially motivated, abusive police conduct, the session was entirely cordial. Each participant wore a "professional mask,"4 which limited the personal aspects of our involvement. A clubby cordiality replaced the tension and uncertainty of the other medi- ation, and this polite interaction continued even after it became clear that settlement was impossible. As it turned out, the mediation was premature; the insurance company had authorized its lawyer to settle only for nuisance value because she had not had time to take certain depositions. We all realized that the culprit was the claims adjuster, who had insisted that his lawyer try me- diation even though he was not ready make a significant offer.5 3. The plaintiff's lawyer said that the organization that arranged the mediation informed him that his client's presence was not necessary. The normal practice of that organization is to en- courage the plaintiff, but not the defendant, to attend personally. 4. THOMAS L. SHAFFER & JAMES R. ELKINS, LEGAL INTERVIEWING AND COUNSELING IN A NUTSHELL 46 (1987). 5. If he had been scheduled to attend the mediation personally, I imagine he would have postponed it until he was ready to talk. 1062 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 69:1059 Although the plaintiff's lawyer was enormously upset at wasting half a day at this mediation, he contained his emotion. The other lawyer and I validated his feelings, and the three of us went on to discuss legal educa- tion, mutual friends, and the like. As I drove to my office after these two mediations, I was startled to realize that, on that day at least, I was much more comfortable without the clients.6 The events of that day have nagged at my conscience. As a mediator I had no authority to compel the parties themselves to attend. I normally encouraged them to do so, however, because I believed that client attendance usually brings quicker, more satisfying settlements for the client. What stunned me was the realization that I sometimes hope that the clients will not show up, because I will have an easier time medi- ating without them. If I had the power to compel the parties to attend these mediation sessions, I wondered, when, why, and how would I use it? This question prompted my interest in G. Heileman Brewing Co. v. Joseph Oat Corp. I The relevant part of G. Heileman Brewing Co. began in 1984, when a U.S. magistrate in Madison, Wisconsin issued an order that befuddled some of the parties and their lawyers and, on appeal, sharply divided the judges on the Seventh Circuit. The magistrate di- rected each party and their insurance carriers to send to a settlement conference, in addition to their lawyers, "a representative having full au- thority to settle the case or to make decisions and grant authority to counsel with
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