I occasionally take private cases, but most of the time I prefer to mediate pro bono, as long as my students are allowed to attend and assist me. I feel strongly that everyone should have access to quality mediation services regardless of cost.
Q: Has interest in mediation grown?
A: Absolutely. More and more lawyers use the mediation process to achieve superior outcomes for their clients, in addition to settling legal claims. I've engaged in a few collaborations with my colleagues who teach Civil Procedure, because the legal academy increasingly recognizes that a full knowledge of procedure also means understanding alternative dispute resolution. And one need only open a newspaper to see how much mediation has captured the attention of the general public: whether it's BP's oil spill claims, Hostess' bankruptcy or the National Hockey League lockout, mediation has become a valued and highly visible form of conflict resolution.
Q: Do litigators, by and large, take seriously what you do? Do lawyers or clients ever resist the use of mediation?
A: Most litigators take mediation seriously, if for no other reason than its widespread acceptance and use in our court systems. As judges increasingly refer cases to mediation, both litigators and in-house counsel have come to see it as a legitimate conflict resolution tool. Simply put, mediation is a fact of life in civil litigation. In fact, mediation often serves as a complement, rather than an alternative, to the litigation process. Parties can mediate at any point during the life of a case. And savvy lawyers know that mediation allows their clients quicker, more cost-effective and often superior outcomes to those they can achieve at trial.
Occasionally, parties or counsel express reluctance to mediate. Reluctance often comes from not knowing what mediation can offer, or how to be a successful advocate in mediation. Some litigators hesitate because they fear that they will have to give their clients 'bad news' about the case during the course of the session. I appreciate it when litigators raise this concern because I have many ways to help them engage in risk analysis without alienating their clients.
Q: What is the key to a successful mediation?
A: Parties' openness, perseverance and creativity are what determine the success of mediation. When litigators help their clients understand that a firm belief in one's legal case can coexist with the desirability of finding a solution, mediation can produce results. By contrast, lawyers who get stuck rehashing legal positions make it hard for their clients to succeed. Not only does a trial-type presentation fail to put one's adversary in a negotiating mood, I find that often it's not persuasive.
Lawyers need to know that 'success' is not necessarily tantamount to reaching an agreement. Some mediations succeed even without settling: for example, the parties may determine what additional information they need to properly value the case. Or they might narrow the issues for litigation. And some parties just need more time before they can consider settling. I mediated one case last year that didn't resolve; at the end, one litigator told me his client 'wasn't ready yet.' I see them again next month. Sometimes we plant seeds, and they take a while to grow. I tell parties that they will never outlast my patience! I'm always the last one to pry my hands off the ledge.
Q: Can you give some examples of successful mediations in which you and/or your students have been involved? Situations in which mediation failed?