Dear Ms. Allison: Is there responsibility to make it up to me if my lawyer walks out of my mediation? My trust was being mediated and we were in the mediation session. My lawyer was negotiating. Then he walked out of the meeting. He had his associate continue, but from that point on, the negotiations did not assert my claims. What can I do about him walking out? LD in Tulsa County

Dear LD:

There is a lot of missing information here. Did your attorney leave because he was called away to go to court? Was his child taken for emergency surgery, and he needed to authorize it? Did he leave because he thought the parties to the mediation had agreed to a settlement and all that remained was to write it up and sign it? Or did he walk out of the negotiations in a temper tantrum and give up on them? Did you object? Did you agree to have the associate continue?

The circumstances make all the difference.

Depending on those circumstances, it is possible you have a claim for malpractice against the law firm, but the lawyer did leave firm personnel there with you. Your claim might not be a strong one. You really need to understand the roles of the people involved in a mediation.

Mediation is a voluntary process and you enter into it by choice, as a legally competent adult. Your choice is that, as a competent adult, you intend to work out a solution to settle your disagreement with the other parties. The mediator only facilitates and represents no one. Your lawyer is there to give you advice. You can bring other subject matter experts to advise you as well – a Trust planner or tax advisor, for example. However, you represent yourself and your case and you control whether you agree to settle or not.

If your lawyer walked out, you should have asserted yourself and taken charge of your situation. You can always ask the mediator for a break in the session to find out what has happened and make a new plan or bring in another advisor. The mediator’s job is to work with all parties to accomplish a settlement agreement. If a break is needed to do that, so be it.

If you signed any agreement to settle the case, the law considers that you did it of your own free will, regardless of who was or wasn’t there to advise you. The results of that agreement are on your shoulders.

Clearly, you need a different lawyer or firm if they cannot advise you in ways that you understand what’s going on and what your role is in a process. Still, with a settlement through mediation, you are stuck with what you agreed to in your written settlement.

That’s your question, Asked and Answered. My best to you,
Gale Allison

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