Sunday, June 30, 2013

"Leaning In" as a Woman Lawyer

The June 2013 issue of the ABA Magazine features women who have ascended to the heights of law firm management.  It profiles seven women who currently operate as the managing partner in medium to ubber-large law firms.  Most of the women are in their late 40’s or early 50s, and they talk about the choices they made to get these positions in their firms.  I want to share some of their comments:
  • Most importantly: Ask to take on the management responsibilities as your skills and credibility expand.  Don’t wait to be asked! 
  • “Lean in.”  Do it consistently over a long period of time. 
  • Actively create the future you want for yourself.
  • Avoid any distractions from your top priorities.  Develop laser focus on your goals.
  • Establish your credibility by being a very good lawyer who works hard.  Have a “dogged” work ethic.
  • Build a lucrative book of business that gives you economic power within the firm.
    • Show you have a “business mind” as well as a “practical legal mind.”
  • Advance the agenda of the firm.  Consistently add value.
  • Gravitate toward the most complex legal matters or cases in the firm.  Ask to work on those tough cases where partners will notice you.  Make sure you stay in the spotlight.
  • Be “a master at relationships.”
  • Educate yourself about the psychology of “people, relationships, and the impact of fear on their choices and actions.”
  • Be a good firm citizen, by working well with others and by acknowledging the rules of the firm. But, do not be afraid to help change the rules that may keep women from finding the work-life balance they need to succeed.  
  • Accept that a work-life balance will still require you to work towards your professional goals with commitment, but that at different times in your life you may have different priorities.
    • One managing partner is quoted saying:  “When we talk about work-life balance, it’s all life.  It’s doing what you do at certain points in your life because those are your priorities.  And that’s where you figure out your balance.” 
  • Be brave.   Ask for what you need to excel.   
  • If your firm won’t give you what you need to thrive, you may need to move to a new firm. 
  • Take risks!
  • Ask your male colleagues for help.  “[T]ake the team concept to heart.”
  • Turn a deaf ear to social pressures.  If you need to feed your family every night at 9:30 p.m., then do so.  Who says dinner has to be at 6 p.m.?
  • Do not succumb to self-inflicted guilt about not spending enough time with your family.  Ask for help, either by hiring a good nanny, by using a great housekeeper, or by marrying a man who truly takes on 50 percent of the responsibilities at home. 
  • Marry a man who supports your career aspirations.  If your spouse does not support those aspirations, it may be time for a new spouse or the single life.
  • Assume the role of legal technologist.  Push the firm to update software, web platforms, and client communication systems. 
  • Help the firm get on top of the sea changes happening in the profession.
  • Be a good listener and a good communicator.
  • Be more present in meetings with partners by listening, focusing on their concerns, understanding their motivations, and participating more actively.  Take a seat at the conference table and engage.
  • See business possibilities in those conversations with partners.  Lead the efforts to capitalize on those possibilities. 
  • Understand that leadership is about integrity “and the willingness of others to follow because they think you’re interested and will listen to them and represent their interests and needs best.” 
Gee.  Sounds like the subjects I teach in our dispute resolution program prepare our students well –  whether men or women – for lofty positions in law firms.  So grads, trust yourself and your training.  Lean in. 

Tuesday, June 25, 2013

Disputes Less Suitable for Mediation

Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that the following types of disputes or circumstances make mediation less desirable:

·        The party needs to establish binding precedent;

·        The party needs to deter future claims by establishing a “hard-ball litigation – no settlement reputation” (aka the Walmart strategy);

·        The party seeks validation or vindication by a person in authority who declares that the client was blameless, but the other party was a low-down, dirty SOB;

·        The party wants or needs to go for a litigated “jackpot” damage award, no matter the statistical chance of winning that award;

·        The parties are embroiled in a value-based conflict on which they see no room for compromise;

·        The party will not be effectively represented in mediation, either because he or she is unrepresented or represented by inexperienced or unskillful counsel;

·        One or more parties refuses to participate in good faith in the process; or

·        The parties cannot bring into the process one or more persons essential to a resolution.

I would add to this list disputes in which:

·        A party seeks retribution; or,

·        A weaker party needs the power of the court or of law to balance a significant imbalance of power or resources.

The Maryland Handbook for Lawyers identifies four types of disputes in which mediation would not be successful or is not considered appropriate:

·        When a party victimizes the other party;

·        When alcohol or drug abuse plays a significant role in the dispute or undermines a party’s ability to effectively participate in the mediation;

·        When only a court can offer a remedy to the dispute, especially in matters of first impression or those matters requiring injunctive relief; or,

·        When relationships cannot be healed. 

I would challenge two components of this last list.  

While the mediation community continues to debate whether victims of spousal abuse or domestic violence should ever participate in mediation, several authors suggest that with sufficient safeguards the process may offer an attractive alternative for abused spouses.  One of my former students, a victim of spousal abuse, wrote a seminar paper advocating the use of med-arb in divorce proceedings involving abused spouses.  After her experience in the West Virginia court system, in which a judge openly expressed his bias against her, she preferred a process giving her more control, especially, over the outcome.

I also suggest that mediators successfully handle many cases in which the parties either had no pre-existing relationship (auto accident cases) or do not wish to preserve the relationship (divorcing spouses with no children). 

As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process.  Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.  

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at (footnotes in original omitted in this posting).  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.

Monday, June 24, 2013

Disputes Suitable for Mediation

I've been discussing the "what" of mediation.  What kind of disputes are ripe for the process?  In my last posting found here, I identified some very interesting disputes that a court or the parties have sent to mediation. 
Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that certain types of disputes are especially amenable to mediation:

·        When the parties have conflicting views of the facts or law;

·        When a party needs to express strong emotions;

·        When a party craves the opportunity to be heard directly by the opposing party;

·        When clients or their lawyers can no longer effectively communicate with each other without the assistance of a skillful mediator;

·        When the parties are not skillful negotiators and need the process structure and negotiation expertise provided by a mediator; or

·        When a conflict exists between a party and his or her attorney.

Christopher Moore -- a partner in CDR Associates, a mediator since 1979, and author of The Mediation Process: Practical Strategies for Resolving Conflict – would also consider these factors:

·        The intense emotions of the parties prevent a settlement;

·        Poor communications -- in quality or quantity -- between the parties make it difficult for them to change the situation on their own;

·        Misperceptions or stereotypes hinder productive exchanges;

·        Repetitive negative behaviors create barriers to settlement;

·        Disagreements over data hinder its collection and evaluation;

·        Multiple issues in the dispute keep the parties from agreeing about the order and combination in which they should resolve the issues;

·        The parties perceive their interests as incompatible;

·        The parties have no negotiating procedure, they use the wrong procedure, or they use a procedure without skill;

·        The parties have no acceptable forum for the negotiation;

·        The parties have difficulty starting the negotiations; or

·        The parties have reached impasse in the unfacilitated negotiation process.

I would add to this list cases in which the parties:

·        Need to protect -- in a confidential process -- reputations, good will, trade secrets, or a good name;

·        Seek to avoid the emotionally and psychologically exhausting process of litigation;

·        Seek to avoid the distraction –especially in a business setting – of ongoing litigation;

·        Seek to avoid the expense of litigation;

·        Need a much quicker resolution of the dispute;

·        Cannot accurately predict the outcome at trial;

·        Desire to maintain control over the dispute resolution process design;

·        Need more than an award of damages or an injunction as a remedy;

·        Seek some sort of compromise solution rather than a win-lose outcome;

·        Desire to maintain control over the outcome;

·        Seek to avoid the decisions of a potentially biased adjudicative neutral; or

·        Cannot afford the expense of skillful and higher-paid lawyers, expert witnesses, or other representatives in litigation.

Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful.  They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty.

In my next posting I will discuss disputes that are less suitable for mediation. 

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at (footnotes in original omitted in this posting).  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.

Photo provided, with permission, by Chris Jones, Harlan, KY. 

Sunday, June 23, 2013

The "What" of Mediation: Some Interesting Disputes Sent to Mediation

In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, had this to say about ADR:

While alternative dispute resolution has made encouraging inroads over the last twenty years, the adversarial system continues to hover above ADR like an elephant over a chipmunk.

I now suggest to my students that, in less than a decade, the metaphor has completely changed.  ADR is now the elephant hovering over the chipmunk of litigation. 

For instance, a review of the ADR referral policies of the district judges in the United States District Court for the Eastern District of Missouri shows that the eight judges will refer almost all cases to mediation, especially if they present fact issues.  The judges do not make referrals when the cases involve: only questions of law; appeals from rulings of administrative agencies; habeas corpus and extraordinary writs; bankruptcy appeals; Social Security cases; and prisoner civil rights cases.  For most experienced mediators, even this list of excluded cases raises questions about why the judges have deemed these cases inappropriate for mediation. 

  All of us have heard about mediation of personal injury cases or child custody matters.  But a review of the headlines appearing over the past several years indicates the increasing use of mediation at earlier stages in the dispute – often pre-litigation – in an increasing variety of matters.

-                      White rap singer, Eminem, will use mediation to resolve the terms of his second divorce from his high-school sweetheart after a judicial settlement conference failed to bring the parties to agreement.

-                      African-American plaintiffs dropped a 38-year old lawsuit seeking desegregation of Tennessee’s college and professional school educational system after hammering out an agreement in court-ordered mediation six years earlier.

-                      The Securities and Exchange Commission mediated fraud claims of $800 million that it had filed against ousted chief executive of the HealthSouth Corporation.   Courts had already referred the company’s investors, in related lawsuits, to mediation. 
-                      A very public sexual harassment suit filed against the former sheriff of Roanoke, Virginia entered mediation in early 2006 by court order.

-                      Major League baseball requested a pre-suit mediation with Washington, D.C. after the city failed to approve, by a December 31, 2006 deadline, a lease for a new ball park designed for the Washington Nationals.   Without the lease -- the pre-cursor for the planned $535 million bond-funded stadium located in Southeast Washington -- the commissioner’s office would not sell the team, formerly the Montreal Expos, to the city. 

-                      A federal judge ordered Barry Scheck -- a prominent New York lawyer facing a $3 million malpractice suit for having missed court filing deadlines in a client’s rape and robbery case -- into mediation with the former client. 

-                      The family of deceased civil-rights icon, Rosa Parks, engaged in pre-suit mediation of allegations of undue influence with the people Ms. Parks appointed to handle her estate.  

-                      The Federal Aviation Commission, nearing impasse in its contract negotiations with unionized air traffic controllers, requested mediation. 

-                      The New Jersey Division of Youth and Family Services agreed to mediate with an advocacy group, Children’s Rights Inc., in an effort to prevent a take-over by the federal government of the state’s child welfare agency.   The advocacy group alleged that the state had failed to overhaul the system as agreed. 

-                      World Trade Center architect and master planner, Daniel Libeskind, entered mediation in an attempt to resolve his lawsuit for $843,000 in fees that he filed against the site leaseholder, Larry Silverstein.  Silverstein requested the mediation within a week of the lawsuit’s filing. 

-                      Mexico’s then-president Vincente Fox agreed to have his country act as a mediator between Columbia’s government and guerrillas in their forty-year conflict. 

-                      A judge ordered two younger teenage boys – accused of killing their father – to mediation with the prosecution after the judge ordered a new trial in a case carrying a 20-year to life sentence.

The use of mediation to resolve conflicts seems limited only by the support of courts, the will of the parties, and the creativity of their counsel.

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at (footnotes in original omitted in the posting). The author does not intend to create an attorney-client relationship with any person who reads this posting.

Saturday, June 22, 2013

Easier Access to the 2012 ABA Journal Blawg 100

This morning, I spent several hours reviewing the law blogs (or blawgs) that look interesting to me and adding them to this website so I could track them more easily.  The good news is you can track them more easily, too, by reviewing the list on the right side of this page.

That list will show the name of the blog, the title of the latest posting, and how recently the author posted.

For this research project, I used the list of 100 top legal blogs assembled by the ABA found here.  I focused on the following categories:

  • Legal News/Analysis
  • Trial Practice
  • Business of Law
  • Marketing a Law Practice
  • Careers/Law School
  • Courts, and
  • Legal Technology
I hope you find this resource helpful.

Friday, June 21, 2013

ABA Law Practice Management Section

I recently joined the ABA's Law Practice Management Section in an effort to support our graduates who will start solo practices because of the lack of opportunity in law firms and other traditional employers of lawyers in this recessionary economy.  I blogged about the day-long solo practice workshop the Appalachian School of Law offered this past spring here.  I blogged about the employment prospects for new grads herehere, and here.

This past week, I received the section's welcome packet and its May/June 2013 issue of the Law Practice Magazine.  The section focuses on the following four core areas: marketing, management, technology, and finance.  It provides section members with six issues of its "award-winning" hard-copy magazine, a monthly webzine, a bimonthly e-newsletter, and a legal technology blog.  It also focuses on the challenges women face as rainmakers and sells an impressive collection of books.

The May/June issue of the Law Practice Magazine provided excellent content.  I plan to read nearly all the articles.  The ones I have read so far were well written and covered very timely topics in a thoughtful and clear way.  This issue includes the following articles:

  • Accelerated Strengths Development (riffing off Tom Rath's "Strengths-Based Leadership" concepts)
  • Helping New Grads Be Better Lawyers Faster
  • Alternatives to the Partnership Track
  • Can we Talk? (about communication in law firms)
  • Millennials: What Other Generations Say About You (and What You Can do About it)
  • Solving the Multimillion-Dollar C Player Problem, and
  • The Secret to Writing Persuasively
The issue also covered "rainmaking circles," engagement letters, promoting the professional development of others, the latest version of a voice recognition technology called Dragon, the use of apps to support courtroom evidentiary presentations using an iPad, tips for teleseminars and webinars, managing receivables, "future-proofing" your law firm, and your firm's governing structure. 

I am especially impressed with the diversity of covered topics and the expertise of the authors.  These folks are keeping up with the important trends in the profession.  I have to say, I look forward to picking it up, when possible, to digest the next bit of advice it offers.  

New grads:  I strongly recommend that you find the money to join the ABA and then this section, if at all possible.  This section can keep you from making many mistakes.  It can also help you become a firm innovator, which will propel your career.  I will post on that topic next. 

Wednesday, June 19, 2013

Preparing the Case for Mediation

In the last month, I have provided several ways to think about the "who" of mediation.  Most recently, I have examined the role of lawyers in mediation.  This post closes out that discussion.

So far we have considered the lawyer's role in counseling clients about the mediation option, preparing clients for mediation, and now preparing the case for mediation.  That last step involves a strategic planning process involving the client. The lawyer will likely:

  • Discuss the costs, risks and benefits of not reaching a settlement.
  • Discuss the best result each party can hope for in litigation.
  • Discuss the worst result that could happen in litigation.
  • Ensure that the client knows the facts and issues of the case.
  • Examine the legal and factual strengths and weakness of each party’s case.
  • Explore the client’s position, goals, and interests.  Establish a list of priorities, possible trades, and rapport-building “throw away” items. 
  • Surmise the opposing party’s position, goals, and interests. 
  • Explore the client’s emotions that the dispute, the other party, or aspects of the mediation may trigger.  Allow the client to express those emotions before the mediation, but reassure the client that a skillful mediator will help the client manage the emotions and their appropriate expression during the mediation.
  • Advise the client on how to best put forward his or her interests.
  • Advise the client about any confidential information which should, as a matter of strategy, not be disclosed to the other side or disclosed only when strategically appropriate.
  • Help the client set reasonable expectations for mediation.
  • Identify sources of objective criteria that will allow principled bargaining over money.
  • Develop additional strategies for handling the money issues involved.  I'll discuss many of these strategies in later posts.
  • Prepare the client to expect unforeseen evidence or arguments that may arise during the course of mediation.
  • Prepare the client for questions the mediator or the other party may pose to him or her.
  • Identify possible impediments to a negotiated solution, including relationship issues, data or information problems, conflicting interests, structural sources of the conflict, and value-based sources of conflict.
  • Brainstorm possible solutions to the situation, especially focusing on solutions that can satisfy the interests of both parties.  Ask the client to identify and list all the responses he or she can make to satisfy the other party’s interests. 
  • Ask the client to identify and list all the responses the other side can make to satisfy the client’s interests.
  • Determine whether any limits exist on a party’s ability to settle.
  • Discuss negotiation styles.
  • Develop an opening offer strategy.
  • Practice, in role-play, the agreed strategies and styles.

How lawyers prepare clients for mediation depends on their client representation skills, their experience with the process, their attitudes towards mediation, their expectations about the process, and the client’s expectations about the process.  Over twenty years ago, I represented a client in mediation for the first time.  Instantly, I was a “true believer.”   After that transformation in perspective and professional goals, I have spent the last two decade assembling the skills I need to teach students about mediation, represent clients in the process, and serve as a skilled neutral.  While mediation may no longer be the latest fad, lawyers still have plenty to learn about effectively using the process on behalf of our clients. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.       

Tuesday, June 18, 2013

Preparing the Client for Mediation

In this series of posts, I have discussed the roles of lawyers in the mediation process.  This post continues that discussion.  

Now that the lawyer and client have chosen mediation as a way to handle the dispute, the lawyer may wish to:

  • Explain what is expected of the client during the mediation.
  • Remind the client that the object of mediation is not to “win,” but to reach a satisfactory resolution.  Remind the client that mediation is simply a continuation of earlier negotiations.
  • Encourage the client to value in the mediation process the pre-existing relationships between the parties or the improved relationships mediation can create.
  • Ensure that the client or client’s representative has authority to settle.
  • Discuss who will give each portion of the presentation and the role the client will play in the overall process and decision-making.
  • Advise the client to develop a working relationship with the mediator, use the mediator as an ally, and protect the client’s credibility and trustworthiness with the mediator.
  • Coach the client on more effective communication styles.  Ask the client to avoid confrontational or adversarial communication, if possible.  Encourage professional and courteous behavior and the use the language of persuasion.
  • Work with the client to prepare an opening statement.
  • Prepare a confidential memo for the mediator if he or she has not requested case information in another form.
  • Have the client view a videotape of a mediation session.  I recommend Program on Negotiation, Saving the Last Dance: Mediation Through Understanding, available at (Nov. 8, 2005);  Program on Negotiation, Mediators at Work: Breach of Warranty, available at (Nov. 8, 2005).  

This excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.       

Monday, June 17, 2013

Representing a Client in Mediation: Pre-Mediation Counseling

When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions.    This post will focus on the first phase of the process.  Later posts in this series will consider in more detail the role of lawyers in the mediation itself.

Counseling the Client about Mediation
In counseling a client about mediation, a lawyer may wish to cover the following topics:

  • The advantages of mediation over litigation in potentially reducing the cost of and time expended in resolving the dispute.
  • The disadvantages of mediation in that the outcome is not binding unless reduced to an enforceable agreement. 
  • That mediation creates no legal precedent.
  • Whether the case is “ripe” for mediation.
  • Whether the client has sufficient information or discovery to make informed decisions at the mediation.
  • Whether the parties should request a pre-mediation conference.
  • The scope of confidentiality provided by rule or statute and any additional expectations about confidentiality that the parties may need to cover in the agreement to mediate.
  • Whether the parties need a standstill agreement.
  • The choice of mediator.
  • The location of the mediation.
  • Who should attend the mediation and whether the client should bring an expert witness, a fact witness, other supporters, or anyone else.
  • What pleadings, demonstrative evidence, or other information the client or lawyer should bring.
  • The stages of the mediation process.
  • The distinction in the role of a mediator compared to a judge or arbitrator.
  • The techniques mediators may use.
  • When mediation may not be appropriate for the situation because of domestic abuse, extreme imbalances in bargaining capacity, or when the client is impaired by drugs or alcohol.
  • That mediation is a voluntary process that the client may terminate at any time.
The lawyer should take time to ensure that the client is ready for a process that may be new to him or her and has adjusted his or her expectations about the process to ensure successful participation in it.

This excerpt from an article first appeared in St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at

Sunday, June 16, 2013

Using Pre-Mediation Questionnaires in Litigated Cases

Prior to the mediation, I circulate to the lawyers a confidential pre-mediation questionnaire modeled on a form developed by Richard Sher, a well-known St. Louis mediator.  This form helps the lawyer, the client, and me get ready for the mediation with a structured analysis of the case.

It asks the lawyers to disclose the status of the case in the litigation process and whether any dispositive motions are pending. It asks about the status of discovery and how much more discovery the parties need to do.  It asks about the facts of the case, the claims and defenses of the parties, the disputed issues of liability or damages, the amount and characterization of damages sought, the attorneys’ fees incurred to date, and the expected fees the client will incur getting the case to trial.  

Next, it asks about the history of negotiations and why that lawyer believes the negotiations have failed so far.   It then asks for a candid assessment of the “soft spots” in the claims or defenses and whether the client has sufficient information to form a realistic assessment of the legal case or the settlement options.  If not, the questionnaire asks the lawyer for what additional information the client needs.  

It also asks about settlement authority, who will be attending the mediation, and for any additional information the lawyer thinks may be helpful in settling the case.

Do you use a pre-mediation questionnaire?  What additional information does it seek?    

Saturday, June 15, 2013

Borrowing the Lawyers' Power in Mediation

I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues.   In the last mediation I conducted, I intended to borrow their power.  My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county.  The case involved the sale of a private residence.  The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia.   The building inspection, however, came back with a comment about the aging roof and cracks in the foundation.  It spooked her a bit.  Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house.  Now, she felt exploited.  Without an agent she trusted to help her work through these emotional responses, she backed out of the deal.   (These facts come from the complaint and not from confidential mediation communications.)

When I first moved to Virginia, I was shocked to find that lawyers participated in every, or nearly every, real estate closing.  At first, I guessed that lawyers had maintained a strong lobby that had kept this part of the real estate business in their hands.  This past summer, I learned from another country judge -- who presides in a courthouse located about thirty-five miles from the Cumberland Gap -- that titles to real estate located in Virginia are especially complicated.  Some of them may go as far back as the first settlements in the New World.   Jamestown, after all, is a popular tourist attraction that people visit after they tour the old Williamsburg colony, Monticello, and the Yorktown battlefield.  A lawyer who had joined us for lunch exclaimed that some of his biggest malpractice worries related to the accuracy of his title opinions. 

The revised Model Standards of Conduct for Mediators, a set of aspirational ethical guidelines, provide that the mediator may only accept cases in which he or she has the competence needed to satisfy the reasonable expectations of the parties.  The mediator must discuss the situation with the parties and take appropriate actions, if he or she learns during the course of the mediation that the mediator cannot conduct the mediation competently.  Based on the results of the discussions with the parties, the mediator may need to withdraw or seek appropriate assistance.  Virginia’s mandatory Standards of Professional Conduct contain a similar provision.

Thus, when I got the court-appointment to mediate this real estate case, I quickly called the lawyers for the four parties – the seller, the breaching buyer, the seller’s listing agent, and the buyer’s agent --  to advise them that (1) I am not licensed to practice law in Virginia; (2) even though four states have licensed me to practice law, I am on inactive status in each; (3) I had never handled a real estate lawsuit while I was actively practicing law; (4) my code of professional ethics precluded me, as a mediator, from giving legal advice, and (5) if I gave legal advice, I was likely engaging in the unauthorized practice of law.  Did they still want me?

As the day of the mediation approached, I had a few butterflies in my stomach.  If one or more of the lawyers expected me to evaluate the legal strengths of the parties’ cases -- something I would hesitate to do anyway and would only do after providing certain procedural safeguards -- I was not going to meet their expectations.  But I hoped that I could enlist the lawyers to provide their own candid analysis of their clients’ cases.  They would provide the legal analysis and advice as I played quite consciously “dumb.” 

Some of you may recall the character, Joseph Miller, played by Denzel Washington in the film Philadelphia.  He plays the lawyer for another lawyer, Andy Beckett, whose firm has dismissed him from a high-paying, high-status job when his superiors suspect he has AIDS.   Throughout the film, Miller says:  “Explain this to me like I’m a six year old.”  And so, throughout the mediation I asked the lawyers to explain relevant Virginia real estate law to me “like I was a six-year old.”  Of course, I could guess at the law, but the real audience was the explaining lawyer’s client, the other lawyers’ clients, and the lawyers.  I set up this interaction in a private meeting with the lawyers after each client had made an opening statement.  I asked them to help me by explaining their legal theories without rancor, without escalating the conflict, and with some candor.  I probed their presentations with general questions.  I would then ask if a certain theory or piece of evidence created a “soft spot” in that client’s case.  The lawyers felt secure enough, in joint session, to make concessions about the strengths of their cases or defenses, typically through a shoulder shrug or a slight nod “yes” or the body language signally “maybe.”  

Without this give and take among the lawyers, we would not have settled the case.  In other words, the lawyers did the heavy lifting that day.  I just suggested to them how to do the lifting and when I needed it done.

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at (footnotes in original are omitted in this posting).

Friday, June 14, 2013

Lawyers’ Increasing Sophistication in Mediation

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.  

A recently published book finally puts in one place much of the good advice on representing clients in the process.  See Harold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).  

Dwight Golann has also authored a new book called Resolving Disputes that he says reflects the perspective of lawyers representing clients in ADR processes.  Several law firm websites now have pages dedicated to preparing clients for mediation. 

Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative options; using the mediator’s neutrality to enhance the attractiveness of the client’s offer; asking the mediator for information about the other side; using the mediator to educate an unrealistic opponent; and asking the mediator to apply impasse-breaking techniques.  

At least one scholar argues that mediation’s adoption of attorney dominance of the process, evaluative interventions, marginalization or abandonment of joint sessions, and a focus on monetary settlements represents a successful adaptation of the process to the needs of “litigotiation.” 

Other scholars have found that “lawyers believe [] their primary role in mediation is to provide a check on unfairness” and to protect their clients from undue pressure from the mediator or “unfair bargaining advantage that the other party may have.”  Studied lawyers reported that in mediation they tried to reduce conflict, act reasonably, and facilitate settlement.  Based on the research, these scholars ask us to “bring in the lawyers” to mediation.

I agree, and discuss that topic in my next posting. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at (footnotes in original omitted in this posting).

Thursday, June 13, 2013

The Vanishing Civil Trial

A recent study shows that nearly all federal cases settle before trial.  In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases.  These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts.  

By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percentThese statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962.   

Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year.  Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.”  

In other words, most judges spent less than forty-two days presiding over trials.  Each judge handled six “other contested matters,” but taken together, the traditional trials and the “other contested matters” averaged a day or less in length.  In 1962, the average federal judge conducted 39 trials each year.

State court statistics give a similar, but yet incomplete, picture.  Based on data provided by the National Center for State Courts for 22 states, civil jury trials fell by 33 percent during the period of 1976 through 2002.  Bench trials fell to 15.2 percent of total civil dispositions in 2002.  

Scholars and commentators are not quite sure what to make of the data.  Some suggest that increasing use of ADR, especially mediation, explains the drop in the number of trials. 

What the data says to me is that lawyers play a more significant role as agents of settlement than as litigation advocates.  I explain to my students that they will far more likely use over their lifetimes the negotiation and mediation skills that I teach than they will likely use the rules of evidence or their appellate advocacy skills.   

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at (footnotes in original omitted here). 

Wednesday, June 12, 2013

The Who of Mediation: Lawyers in the Mix

In late October 2005, I conducted a mediation involving four parties, all of whom were represented at the mediation by counsel.  The presence of lawyers at the mediation was itself unusual according to some limited empirical research.  Two studies in Arizona, two studies of California courts, and a study of sixteen courts nation-wide indicated that in divorce and child custody mediations held since 1992 to 2001, seventy-two to ninety percent of the mediations involved one pro se party.  Thirty-five to fifty-six percent of the mediations involved two pro se parties.  

Data assembled by the National Center for State Courts showed that lawyers played no role in mediation in forty-three percent of the 205 court-related divorce mediation programs studied.  Other sources report that up to eighty-eight percent of family law cases, not necessarily in mediation, involve one pro se party.  

Moreover, sixty-nine to seventy-two percent of cases filed in a Wisconsin urban area court involved at least one pro se party.  If a court referred these parties to mediation, they likely did not retain counsel to represent them in the process.

Lawyers as Spoilers?

Some mediators prefer that lawyers do not participate in mediation.  They consider lawyers potential “spoilers” because the traditional adversarial role they play. Perhaps their mindset, may keep them from exploring creative solutions to the dispute.   Some mediators also believe lawyers take an adversarial point of view to information gathering and exchange.  Accordingly, lawyers may view information as simply enhancing a client’s legal case and should, therefore, be used for winning.  It should not be shared except at trial and certainly should not be shared to explore value creating trades or other settlement options at mediation.  

Other commentators contend that lawyers compromise the mediation process by jealously viewing it as an intrusion into their domain of competence.  They also argue that lawyers cannot adapt “professionally to a situation of controlled and defused, rather than polarized and contentious, conflict.”

 Lawyers’ Views of Mediation

These lawyer attitudes found expression in some recent research.  Beginning in 2000, Julie Macfarlane, a Canadian law professor, analyzed forty lawyers working in Toronto and Ottawa on their attitudes about a new rule requiring mandatory mediation of commercial cases.  She developed five “ideal types” to characterize the comments of the lawyers.  

The “pragmatist” viewed mediation as an extension of the adaptive settlement role these trial lawyers played before courts required mediation.  Mediation, they believed, offered an early opportunity to assess and prepare a case, to limit the rising costs of litigation, and to provide to business clients the rapid resolutions of disputes they sought.   Yet, these lawyers still saw themselves as taking the lead in the mediation process.

“True believers,” another group indicating positive attitudes towards mediation, used quasi-religious metaphors to talk about how mediation had affected their orientation to practice strategies and conflict resolution.  They felt “converted” or “transformed” in the ways they sought to meet clients needs and expectations and in identifying the changes they had experienced personally and professionally.  They viewed mediation as a new form of adversarial process and recognized the distinct skill set it required.  

A true believer often ensured that his or her client played an important role in the mediation process.  They were more likely to use non-lawyer mediators who could handle and appreciate the heightened emotions of the parties to the disputes.

The “instrumentalist” used mediation simply to advance the client’s unchanged adversarial goals.  The instrumentalist either used the tool strategically to fish for information or to reduce the expectations of the opposing party.  The lawyer played the dominant role in the process.  He was more likely to use an evaluative mediator and was surprised if the process resulted in non-monetary or integrative, rather than distributive, solutions. 

The “dismisser” regarded mediation as the latest fad, offering little over traditional unassisted lawyer-sponsored negotiation.  He acknowledged that mandatory mediation required earlier preparation of the file, but viewed this development as an intrusion on his or her autonomy and control.  The dismisser often viewed the utility of the mediation process as providing a “reality-check” for his unruly client or for opposing parties who, at least from his viewpoint, were poorly represented.  The dismisser sought evaluative mediators with judge-like authority. 

Finally, the “oppositionist” viewed mediation as a danger to the legal system, to the role of adversarial dispute resolution, and to his or her role as a winner-takes-all advocate.  He or she viewed mediation as a response to government inefficiencies and court back-logs.  He or she viewed mediators as unskilled and manipulative.  Accordingly, mediation felt risky for him or her because of the perceived loss of control. 

 Several factors seemed to affect these attitudes.  Lawyers who had had more experience in mediation tended to view it more favorably.  Also, when the leadership in the local legal community strongly supported mediation, lawyers in that community also tended to show more support for the process. 

In addition, attitudes of lawyers reflected the attitudes of the businesses or industries from which they drew their clients.  Some of those clients were more litigious and some more settlement-oriented.

Macfarland asked whether we could expect to see, over time, more convergence in the attitudes of lawyers.  With time, they would participate in more mediations and become more aware of the different skill set mediation requires that is distinct from the traditional positional bargaining skills they already have.  At the time of the research, one lawyer explained: “I’m still at a loss as to what role I really play.”

A recent study by the ABA Committee on Dispute Resolution examined what factors affect an attorney’s advice to clients to try ADR.  At least sixty percent of the 2,330 attorneys surveyed had served as an advocate on behalf of a client in a case using ADR or they had served as a third-party neutral. 

The survey concluded that if an attorney had any experience with ADR, he or she was much more likely to recommend ADR to a client.  The article concluded by recommending that more attorneys be encouraged to participate in ADR, with the message of the study seeming to be “try it, you’ll like it.” 

A study conducted in 2001 of Arizona lawyers, most of whom had tort or personal injury practices, showed that lawyers were less likely to discuss ADR options with their clients or opposing counsel if they were less familiar with the processes.  Attorneys who expected mediation to produce earlier and satisfactory settlements also thought the benefits of ADR outweighed any costs associated with the processes.  Less knowledgeable attorneys were less likely to believe that ADR would produce benefits for their clients. 

Taken together, the studies suggest that mediation conducted by skillful mediators sells itself.  Over time, lawyers who have good experiences in mediation and feel competent in the new process will recommend its use to clients.  The research may also suggest that as lawyers become more skillful in the process they may be less reliant on mediators offering evaluative or judge-like styles.

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at (footnotes in original are omitted in this blog posting).