Oscar A. Sanchez is a Florida Supreme Court civil circuit and appellate certified mediator with OASMediation.

Due to systemic and historic factors, it is very hard for a litigator to be both a trial advocate and also a negotiator in a mediation setting. And, if serious reforms are not made soon, U.S. litigators are in danger of losing control of the settlement of their cases to a new breed of lawyer, the so-called “settlement counsel.” If you are thinking that something so preposterous could never happen, consider the fact that in the United Kingdom, these different roles are essentially divided between barristers and solicitors.

Following the U.K. model, at least one author has advocated designating a separate lawyer to act as settlement counsel in order to bridge this gap in the American system. Some law firms are already listing settlement counsel as a designated area of practice.

For litigators, the advent of the settlement counsel should send shivers through their collective spines. This would herald in a new era where they would regularly surrender their clients to someone else at a lawsuit's most critical phase: its ultimate resolution. This need not happen.

By now, everyone is aware that most civil cases settle. Numerous studies have conclusively confirmed this adage. Most studies agree that between 92 to 95 percent of pending civil lawsuits end in a negotiated settlement. One study showed that in the vast majority of cases, settling is better for the parties than going to trial.

Despite the inescapable data showing that most cases settle, trial lawyers continue to approach mediation with skepticism. They attend mediations armed to the teeth with factual and legal arguments meant to beat the other side to a pulp, rather than with well-planned negotiation strategies intended to obtain the best settlement for their clients. Trial lawyers want to “win.”

Conversely, clients, especially business clients with limited litigation budgets and long-term business strategies, value having their cases resolved quickly more than they value spending years to obtain a piece of paper from a judge or jury. With such divergence in goals between clients and their lawyers it is not surprising that many mediations fail and that everyone walks away disillusioned.

There are many reasons why trial lawyers instinctively distrust the mediation process. They are taught the adversarial system from the time they enter law school. Some of the most celebrated law school activities, such as moot court, are adversarial in nature.

The profession itself perpetuates this mindset. The Florida Bar offers 27 areas of board certification, including board certification in civil trial and in business litigation. Yet, there is no Florida Bar board certification for “negotiation” or “mediation advocacy.”

Even the concept of bringing some professionalism to the settlement process by requiring the use of Florida Supreme Court certified mediators inspires eye rolling by lawyers. When this was proposed by The Florida Bar earlier this year, a group of well-regarded lawyers wrote a scathing column in the Daily Business Review protesting the very thought of it. Credentialed mediators? Whatever for?

Clients will not long stand for this gap between their goals and their lawyers' attitudes toward settlement. Short of throwing their hands up in defeat and surrendering their clients to separate “settlement counsel,” what are trial lawyers to do? How can law schools, clients and the legal profession work together to solve this misalignment between the clients' goals and the trial lawyer's natural instinct to do battle?

Litigators need to do three things. First, they need to accept that, in most cases, going to trial will not result in the best outcome for their clients and will not make the client feel happier or more satisfied. Second, litigators need to accept that in most cases, it is their negotiating skills which will carry the day, not their trial skills. Lastly, litigators need to re-examine the practice of using the scorched earth approach as a tool in negotiations.

Once they have accepted the reality of settlement, litigators can be proactive. They can become students of problem-solving by taking negotiation courses, much as they have always honed their trial skills with trial advocacy courses. They can suggest early mediation—before the client suggests it—to demonstrate that their goals are aligned with their client's goals. They can sponsor negotiation and mediation advocacy seminars for their clients' in-house lawyers and business people, at company headquarters or at the lawyer's own offices.

This proactive approach can be a powerful marketing tool for lawyers because it shows the clients that their goals are aligned, and that the lawyer is well-prepared to advocate for the client with good negotiating skills, in addition to trial prowess. It is yet another way for the lawyer to provide value to the client.

Clients can use their leverage with their outside counsel to require them to better align their goals with the clients' goals. They can require outside counsel to attend negotiation and mediation-advocacy training on a regular basis. They can insist that outside counsel show proof of such training as one of the requirements for remaining on the approved-counsel list.

Law schools can continue to offer classes in negotiation, problem solving, and mediation advocacy. Case settlement skills can become an integral part of trial clinics. Mediation and negotiation competitions can be encouraged and extolled.

The legal profession as a whole can also take a proactive approach by finally accepting that most civil cases settle and that this is not necessarily a bad thing. Institutional players, such as The Florida Bar and the voluntary bars, can start by de-stigmatizing settlement and de-glamorizing trials. Professionalizing the settlement process by requiring the use of trained certified mediators should not be reflexively opposed by lawyers who genuinely care about the best outcomes for their clients.

Lastly, perhaps the time has come for The Florida Bar to include proficiency in negotiation and mediation advocacy as part of a lawyer's continuing legal education requirements. Embracing these changes in how cases get resolved, and becoming true problem solvers, can save future litigators from having to surrender their clients to separate “settlement counsel.”

Oscar Sanchez is a Florida Supreme Court civil circuit and appellate certified mediator with OASMediation in Miami, where he focuses on being a mediator, arbitrator and court-appointed special magistrate. Previously, he was a civil litigator and trial lawyer.