The Red Velvet Lawyer

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 ...

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” ...

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 i...

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 resp...

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 t...

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 percent .  These 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 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 c...

I want to continue my discussion of how best to choose a mediator.  I started the discussion here .  This posting will focus on a few more factors to consider.   Mediator's Process Skills and Expertise  Mediation skills do not come naturally to any of us.  Some people call mediation an art.  Some people call it a craft.  Mediators acquire their skills through hard work and hands-on experience.  Good mediators spend their spare time reading books about interest-based negotiation, mediation and conflict resolution.  We do pro bono work to gain additional experience early in our mediation careers when no one will hire us.  So don’t be afraid to ask how many mediations the mediator has done and the nature of the disputes she has mediated.  You might even ask about her settlement rate.  But you should “avoid at any cost [a mediator] whose only goal is to achieve an agreement.” And “[b]e wary of a mediator who overstate...

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators. A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri , a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training require...

A decade after his first “grid” article, described in my last posting  here , Professor Len Riskin looked again at the question of mediator style, orientation, or strategies.  Perhaps influenced by his 20-year experience in mediation, or by his understanding of “living in the moment” derived from his mindfulness meditation practice, or perhaps because of the increasingly shriller debate about which style was “best,”   he took a more nuanced and fresh look at the original grid.   See  Leonard Riskin,  Who Decides What? Rethinking the Grid of Mediator Orientations , 9 No.2 Disp. Resol. J. 22 (2003).     He now suggests, I think, that we mediators should be gentler with each other.  Instead of labeling ourselves and each other (bad, bad evaluator or flakey, inefficient facilitator, or weird transformative mediator), mediators can ask instead what the parties need in the moment.  Mediators can also listen better when the p...

In 1994, Len Riskin, then the C.A. Leedy Professor of Law at the University of Missouri-Columbia and Director of its Center for the Study of Dispute Resolution, inadvertently started a great debate about what “style” of mediation was “best.”   When he published the article entitled, Mediator Orientations, Strategies and Techniques , 12 Alternatives to the High Cost of Litigation 111 (1994), he described four styles of mediation based on how broadly the mediator defined the problem presented by the parties (and thus the depth of intervention the mediator was likely to take) and the role of the mediator -- either facilitative or evaluative.   According to this analytical scheme, a mediator could be: narrow/facilitative, narrow/evaluative, broad/facilitative or broad/evaluative.   The two-dimensional grid based on this analysis supposedly predicts the strategies each type of mediator is likely to use, and, Riskin thought at the time, the amount of self-determination the...