The Middle Third
By While out running with my pastor one morning, he asked me how I would best describe my law practice. The easy and most relatable way to explain at least one part of my practice was to walk him through my consultations.
In addition to representing employers, a significant part of my practice has become roughly one-hour consultations, where I meet with an executive to discuss a new employment agreement, a noncompete agreement or a severance agreement. This starts with me reviewing the relevant agreement, meeting with the client and then following up.
As I explained it to my pastor, my hour conversation with the person seeking my help is usually broken into three generally equal parts: listening to the client tell be about the background and how he or she thinks we should approach the matter; me kindly and gently explaining why I think that might not be the most appropriate approach; and providing what I think is the best path forward.
As I was describing this setup, I quipped that my pastor was lucky to have the benefit of skipping the middle part. Instead, he could just say, “Well, God teaches us [fill in the blank].” I somewhat seriously but somewhat jokingly lamented that he didn’t have to go through the hard part of trying to explain to someone why their approach was flawed and not likely to achieve the desired result — better employment terms, out of the noncompete or more severance.
You see, by the time people have gotten to the point of committing to pay a sizable amount of money for one of my consultations, they have likely convinced themselves that aggression is the key to their predicament. In my line of work, clients often like to talk about leverage (typically strained legal theories) to try to exact their desired outcome.
My preacher had, what I thought, was the greatest antidote for these kinds of pugnacious leanings — “Do what God commands.” Only upon further review, and my preacher running into some of his own issues, did I realize that the middle third of my consultations was the important part — the part where the real work was done.
While the simplicity of the “God says” doctrine seemed attractive at first, I realized over time that doing the work — not persuading or convincing, but walking someone through the often-fraught process — was the only way to really get to where the client was really trying to get: the middle third, as I have come to call it.
Maybe it was during one of my mediations that I realized this was the case. So many times, the litigating parties and their attorneys want to cut straight to the chase, to start talking immediately about financial terms. But I have learned that the vast majority of the time, you have to go through the process if you truly want to resolve the matter.
Much like the middle third of my consultations, walking through the process in mediation involves some serious talk about motivations, psychology, moral philosophy, personal responsibility, desired outcomes and the need for resolution. It often requires a fair amount of honest soul-searching, a reckoning that sometimes forces a party to confront an opposing view of the law, the facts or the potential outcome.
As part of this process, I have learned that it doesn’t help to only tell people what they want to hear. Quite the opposite, I find lawyers build the most trust, gain the most credibility and find a partner in resolution when we are honest with our clients, are not afraid to offend their preconceived notions and speak plainly with them.
I’m sure doing all this has lost me a client or two (and probably offended my share of attorneys). On more than one occasion, I’ve heard myself telling clients that the worst thing that can happen for me is for someone to pay me not to follow my advice, and that they are probably talking to me because their preferred approach was not achieving the desired outcome.
But after the awkward silence that usually follows that statement, I usually find that the real work gets done. Instead of looking for leverage or a way to put one over on the other side, clients focus on the things they value the most, what they hope to get out of the process, and the best way to get there, while remaining true to their core values. Doing this work ultimately makes the final third of the consultation (or the mediation) more enjoyable, more effective and more satisfying.
Instead of threats of misused legal phrases, maybe a terminated employee should talk about the need for both parties to transition, which could be achieved through a fair and reasonable severance in exchange for a release and promises to only say good things about the former employer. Instead of challenges to the enforceability of a noncompete restriction, maybe a departed employee should emphasize his or her loyalty to the company and lack of interest in unfairly competing with the former employer or soliciting its customers. Instead of heavily negotiating an employment agreement on the eve of starting a new job, maybe it would be better to raise some concepts that are important to the employee that can be explored in greater detail after the relationship develops.
Turning back to my conversation with my pastor, I have come to realize that while it may seem simple to merely quote line and verse of scripture in seeking solutions, doing so dodges the hard work. Instead of dispelling our more primal tendencies, it simply avoids them. Of course, many people wish they could be more divine in their daily choices, but life is rarely that plain. Maybe that’s why people often need a bridge — whether that is religion or a lawyer to provide counsel — to help cross that middle third.