The Red Velvet Lawyer

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 opti

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 other words, most judges spent less tha

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 c

My last several posts have discussed factors a lawyer or party should consider in selecting a great mediator. Today, I'd like to talk about mediator impartiality. I have discussed this topic, one of the core values of mediation, in a much lengthier law review article:  Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances Filed Against Florida Mediators, 11 Pepp. Disp. Resol. L. J. 309 (2011).  You should be able to download it  here .  Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution.  He suggests you think about these issues along two dimensions that create four quadrants on a grid.  One side of the grid are the terms “parties” and “outcome.”  On the other side of the grid are the terms “relationship” and “conduct.”  The resulting four quadra

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 overstates the advantages of mediation.”             Mediato

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 requirements typically only apply to

Several years ago, the University of Missouri-Colum bia School of Law held its annual training for new mediators.   I served as a role-play coach and evaluator.  Those of us who have been through that training call it the “baby” mediation training.  Its principle purpose, in my mind, is to show the participants how little they know, even after they complete the training, and the significant challenges a mediator faces.  Mediation is not for sissies. After three days of training, many of this year’s participants began to realize that mediation is hard work.   Several trainees realized that good mediation requires rough and tough litigators to move out of their comfort zones.   Good mediation requires a different set of skills from those used regularly by trial lawyers. Missouri Supreme Court Rule 17 requires new mediators to have at least sixteen hours of “appropriate” training.   These requirements are quite modest.   Virginia , my new home, requires twenty hours of t