Monday, February 18

Fee discounts

As regular visitors to this blog will know I have, especially in the early days of writing, made a habit of posting on the nuts and bolts of mediation practice.

It has always seemed a valuable space to fill.

Like most mediators my standard mediation agreement, which I provide to parties to sign prior to the mediation, contains a cost sharing provision -- where the parties each pay half of my fees. No problem so far.

Today I received an e-mail from a lawyer in a recent mediation asking me to reconsider the half share of my fee that I had invoiced his client soon after the mediation for a number of reasons - all adding up to his client having fallen on hard times.

"Hi Geoff,

Thanks for your invoice. Great work on getting us all signed up... this is a bit awkward but I need to talk to you about your fee...."

To be honest I've never been that focused on the level of my fees -- on the basis that I believe in the long view in a small legal community like NZ - repeat lawyers need to know they can talk to me around fees in deserving cases.

ut what to do about today's request - they agreed to both share costs - can I now simply reduce one party's share?

I think not.

Well then, reduce both shares? Well heck no! - given the other side is a well heeled corporate and has already paid.

What then?

I think the only transparent way of doing this is to go to the other side and advise of the request and see if they have a problem - if they do then I would decline the request.

Any other takes on this?


Colm said...

Hi Geoff,

I don't think you have any alternative but to do as you suggest if you are considering reducing your fees.

Both parties are your clients and to "change" the terms of the agreement to mediate, before or after the fact, requires the consent of both.

To make a unilateral concession would not be either ethical or good for business, especially in a small legal community with repeat players where the "news" would undoubtedly make the rounds!

Just my two cents worth!



Anonymous said...

What if one client makes (from the mediator's point of view) an unreasonable demand for a job allegedly poorly done & everyone else is happy with the result? The mediator would prefer to "settle" the demand than fight it, but certainly does not wish to return the $$ of the satisfied customers? I'm not certain why it would be wrong to settle with one party to a multi-party mediation only if the other parties agree. The contract does not provide that each party's payment is a condition precedent to payment by each other party. So the duty is not contractual. Is there some sort of extra-contractual reason to put your entire fee at issue because of one party's demand for a refund?

Geoff Sharp said...

My old friend Anonymous - you pose a real teaser - I agree it would be an unacceptable situation but in my situation (and I suspect in many others)the fact remains there is an agreement between the parties and the parties with the mediator that they share the costs of their mediation, incl the fee, equally - how can the mediator then unilaterally alter that by saying to one 'don't worry about your share at $2,000 - $1,000 will be fine from you?