#effectivemediation

Image Description: Chris Trebatoski speaking at the Clio Cloud Conference.

WHY GREAT LAWYERS MUST BECOME GREAT MEDIATORS

“A good lawyer makes a living, a great lawyer makes a difference.” Preet Bharara – September 26, 2017.

With our society mired in fractionalized discord. When people can no longer talk with each other. When positions replace interests. When no matter what happened, my view is superior to yours. When disruption and innovation lead to great wealth and permanently displaced workers.

It is time for great lawyers to step up and make a difference.

Until some form of balance is restored in our system of justice, great lawyers must, even at great risk to their comfortable lives as lawyers, step up to play their part in transforming the fractures that exist. 

Mind you, this will not be easy. With every tweet or Facebook post or just simple bar room chatter that espouses or encourages rancor. With every effort to suppress discussion of important issues through dismissal of opposing points of view. The task of restoring faith in any institution is weakened. 

Institutions are nothing more and nothing less than the sum total of the moral compass and integrity of those within the institution. 

When the momentum of “change” is to foment discord rather than to find commonality. 

Institutions suffer. 

Individuals suffer. 

Justice becomes a word without meaning rather than a result worthy of being sought. 

Backlash results from suffering of individuals and institutions. Backlash that makes the pursuit of justice ever so difficult. 

It is easy to take a position – even a position not supported by the facts. 

It is easy to write a fuck you letter – all good lawyers are experts at writing those letters. When has a fuck you letter actually worked to obtain a result – in reality – never. 

Presenting facts that are real and believable and advancing arguments that are principled is hard. Sometimes really hard. 

That is what being a great lawyer is all about. Rejecting the petty. Rejecting ad hominem attacks. Rejection the knee jerk reaction of fuck you communications. Refusing to present positions that have no basis in the law regardless of how much money someone is willing to pay. 

For all of those reasons, our society needs great lawyers to become great mediators. 

The justice system is in turmoil based upon disruption and discord. That is not good for anyone. Once way that great lawyers can help to restore faith in the system is to serve as effective mediators to allow individuals and companies to find solutions that are in their interests without sacrificing principles.

 Principled mediation can provide a bridge over the disruption and discord in society today – a bridge that provides access to justice, restores faith in the institution of justice, and restores trust is lawyers. A pathway back to a system where the rule of law is principled and not partisan – a system where faith that the results of disputes in society will be resolved in a just and accessible way. 

This will not be an easy transition for great lawyers. Even a great lawyer cannot simply read a book and become a great mediator. Great lawyers will need retraining and retooling to become great mediators. The time for that transition is now. Transformation of the justice system for good cannot occur without that transition. The transformation will start slowly at first but gain momentum with every great lawyer who chooses to make the transition for the purpose of making a difference. 

How will we know that transformation is occurring? We will see more and more “principled mediation.” 

Principled mediation does not exist in the mediation of forced or imposed settlements. Forced or imposed settlements are the antithesis of principled mediation. 

Principled mediator is not achieved through disparaging attacks on the positions of the parties. 

Principled mediation is not achieved through mechanical evaluations of legal arguments or factual belief or through shuttling of offers. 

Rather, principled mediator is achieved when a skilled practitioner uses probing questions and creative approaches to peel back the layers of discord and disagreement to find commonality based upon interests that are either common or interests that can harmonize to create a result. 

Through the process of principled mediation, the parties to a dispute can see the interests of the other party and understand the basis for the dispute. 

Only then, can the parties without the gloss of advocacy for the sake of advocacy, evaluate, or with the help of the mediator, the true implications, expense and collateral damage, of pursuing the dispute. Only then is does the value of resolution of the dispute arise out of the fog surrounding and arising out of disagreement. 

At the end of the process, the parties choose to either reach a resolution while maintaining their principled positions or to continue their dispute with a better understanding of the ramifications of the course they choose. Both results are positive and support the pursuit of justice. 

When great lawyers take on this challenge – Society benefits. 

Even the most expensive mediation is less expensive than trial – with far less collateral cost and damage as an added benefit. 

Society benefits because if pre-dispute mediation is available, justice becomes more accessible for those who are afraid of the costs of the system or simply unable to afford the costs of the system. 

Greater access to principled dispute resolution restores faith in the institution of the justice system and the pursuit of justice itself. 

There are no easy answers. 

No single answer solves all of the problems we face. 

Mediation before Litigation – It works with the right Mediator.

When I first graduated from law school more than thirty years ago, I always viewed the dispute resolution provisions contained in contracts between business partners or businesses with continuing relationships to be a necessary evil to muddle through before the inevitable lawsuit would be filed and a “real” decision would be made. More than thirty years later, I find that many clients still view the dispute resolution provisions contained in their contracts to be a waste of time. After having observed many pre-litigation or pre-arbitration dispute resolution processes I believe that I know exactly why the necessary evil view of dispute resolution provisions is so prevalent. 

The primary reason – bad mediation experiences. Bad mediation experiences occur for two reasons. First, bad mediators. Second, lawyers that get in the way of their client’s expressing the true nature of their grievances thereby precluding exploration of solutions that satisfy the grievance but avoid litigation or arbitration. 

A good mediator can often navigate around the lawyer who gags their client in search of the fees that can be generated from litigation or arbitration. 

A bad mediator – or the wrong mediator for your case – there is no way around that problem. A bad result is practically guaranteed. 

Business relationships sour for many reasons. Some are obvious. Some are not. A good mediator teases out the reason for the relationship failure and seeks to find interests of the parties that can provide a mechanism that the various participants in the dispute may not be happy with but are willing to accept in order to avoid the risks and costs inherent in litigation or arbitration. 

The simple fact is that if the mediator views the only mechanism for resolution to be money – avenues of potential settlement are never exposed. Money issues should not be the first or only issue discussed in mediation. Especially mediation which occurs as part of a pre-litigation/pre-arbitration dispute resolution process. If it does – bad mediation experiences are bound to occur and frequently do. 

Parties in a pre-litigation/pre-arbitration mediation must be given the opportunity to express the true nature of the dispute and their own perception of why the dispute occurred. Only then can positions be separated from interests. Only then can a discussion that may lead to resolution occur. 

Every experience lawyer who has practiced as a trial lawyer or an arbitration lawyer have seen clients that are dug in to a position at the beginning of a case who later grow weary of the dispute or wonder why they got themselves into the dispute in the first place. Settlements frequently occur at that point. However, settlements at that stage of a dispute occur after substantial financial and emotional costs are incurred. It is impractical and sometimes impossible to achieve settlements which include anything other than payment from one party to another or both parties simply walking away from the dispute. Neither is very satisfying from a client standpoint. 

It is incumbent upon lawyers to encourage and facilitate satisfactory experiences in pre-litigation/pre-arbitration dispute resolution. The best way to facilitate a satisfactory experience – take the opportunity seriously, choose a mediator wisely, and explore options rather than rejecting all options out of hand. 

One of the difficulties in this process is the lack of trained, qualified, and experienced mediators. Too often lawyers are left with only mediocre to bad choices. That can be because of the process contained in the contract which encourages disagreement between the parties with respect to selection of a mediator which results in a race to the bottom in terms of mediator’s skill sets. But more often it occurs simply because there is a lack of experience both on the part of lawyer representing a client in that setting and on the part of a mediator whose experience comes from mediations, often court ordered, that occur well into the litigation process. Too few lawyers and fewer mediators are skilled in the process of mediating business disputes in the pre-litigation/pre-arbitration stage of dispute resolution. 

A mediator that mediates in the pre-litigation, pre-arbitration setting must be patient. The process will likely take longer. A mediator in that setting must listen more and speak less – facilitate more and evaluate less. Clients and lawyers must be drawn into the process and see that the mediator cares about satisfying their individual interests while at the same time being realistic about what can and cannot be done in light of the issues in dispute and the interests of all parties. 

The role of mediator in the pre-litigation/pre-arbitration is really important. At that stage in the process, through sifting and winnowing of positions and interests, the mediator stands in the position to have a positive impact on all parties to the process. That is true whether the matter resolved in mediation or not. If the matter resolves, it is the only stage in the process where both sides to the resolution can actually be satisfied with the result – although neither would probably admit it to anyone other than their lawyer or a close family member. If the matter does not resolve, the lawyers and the parties have the benefit of an outside look at their cases and the parties should come away from a failed mediation knowing what they are getting themselves into and why – thereby making a more informed choice. 

Engage in Mediation – Choose an Effective Mediator - Control Risk

I have been a trial lawyer for more than thirty-three years. For the first twenty-seven of those years I trusted every jury I stood in front of to listen to the evidence, follow the judge’s instructions and reach results based upon what was presented at trial. Five years ago, I started to doubt that process. The doubt began when a jury was out for several hours with a simple, one question verdict. When the jury returned, in my client’s favor I was happy for my client. What I heard in the hallway I will never forget. As we walked down the hall toward the elevator the presiding juror approached me and asked to talk with me. She told me, our first vote was 9 to 3 in your favor. “I had to starve out one of the three holdouts to reach what I knew was a just result,” the presiding juror said. “The three would just not participate in deliberations, did not listen to the instructions or the evidence but rather wanted to decide the case without any rational basis.” I later told my client about that exchange. The client was shocked and said, “good thing we had that presiding juror!” That was my first experience with juror anger and discord that is prevalent today. 

With each trial that followed I could see more and more erosion. Unpredictable erosion. The chance of obtaining a jury that was willing to listen and decide cases based upon the law became a matter of luck. When you are unlucky you either get a jury that for a crazy reason rules entirely against your client or a jury that for an equally crazy reason awards ridiculous amounts of money to your client. Justice? Hardly. Today, twenty trials after my first concerns arouse, I am convinced that juries are dangerous dispute resolvers who reach unpredictable and inexplicably wrong decisions. 

My concern is not a conclusion reached from anecdote but one held by a broad cross-section of trial lawyers. See, e.g., “Jury Selection in the Shkreil Fraud Trial Follows Trend of Favoring the Uniformed,” American Bar Association Journal, July 20, 2017. In that article the author posited that “lawyers are seeking jurors who are uninformed as well as unbiased.” The basis for that theory of jury selection? In today’s polarized society, “opinions” or experience “mean inflexibility.” To put it simply, lawyers are concerned that jurors who have opinions or knowledge will not be open to hearing the evidence and deciding the case upon the evidence and instructions to reach their conclusion but rather will rely upon their bias and predetermined opinions to reach their conclusions. 

Our system of justice requires not only jurors that are truly unbiased but also jurors that are flexible enough to hear the actual evidence and trustworthy enough to follow instructions to reach a group decision regarding their verdict. The system was never designed to require jurors who were “uniformed.” In fact, it relied upon just the opposite. Jurors are instructed to use their common sense and life experience to resolve the issues they fact. If a juror is truly uniformed – what life experience and common sense will they have?

Now imagine that you are the CEO or general counsel of a large company fighting another large company over a critical issue. Has the jury system devolved to the extent that companies cannot rely upon jurors to listen to the evidence and decide cases based upon instruction. Unfortunately, the answer is all too often “Yes.” That impacts not only large companies but small companies, families, and individuals who face the need for court intervention to resolve their disputes.

Jury action in cases was always difficult to predict. Lawyers who claim to be able to give clients a percentage chance of winning a case were always fooling themselves and their clients. However, in the past, ranges of results were more predictable based upon jurisdiction and jury experience. That is not the case today.

 Today, whether a case is won or lost and the extent of a victory or loss is tied directly to what jury is seated – the luck of the draw. 

Voir dire, which was a way to control against the pure luck of the draw in the past, is an impotent tool in most cases today. In many federal courts, lawyers are not even allowed to ask jurors voir dire questions. Judge’s conduct the entire voir dire. If you are in that situation voir dire is practically worthless. 

When lawyers are allowed to participate in voir dire, the questions asked are a really tricky subject, It is nearly impossible to know in advance, or maybe to know at all, what questions asked will alienate jurors who will ultimately be seated. It is also nearly impossible to tell when jurors are actually honestly answering questions. Simply swearing in a jury in voir dire is not adequate to assure honest and complete answers. Jurors with any level of savvy know what to say to be struck for cause; they also know what to say to get on a jury. Even if either desire requires some bending of the truth – for what is the truth anyway, right? 

What’s the solution? 

I believe there are three potential solutions. Only one of which is truly usable and effective in nearly any case. They are: 

(1)  In cases that justify the expense and where the expense can be afforded by the client jury consultants have become absolutely critical. Both in the process of mock trials or mock jury selections and in the process of jury selection itself. The cost consultants and mock trials are extraordinarily high and while indicative of results, or illustrative of approaches, do not reliably predict results. A potential solution but of limited application. 

(2)  Trial to the court instead of trial to a jury. That is not always a good option given the judge who is assigned to a case. It is also not always an option as all parties are entitled to make a jury demand. For example, it is common practice in certain jurisdictions for plaintiff’s personal injury lawyer to never ask for a jury, in those same jurisdictions, the defendants always ask for juries. Another potential solution again with limited application. 

(3)  Effective mediation. That is the only solution that can be used and effective in any case. A solution where clients control results and avoid altogether the risk of jury unpredictability. 

Effective mediation requires effective mediators. But how do lawyers and clients choose effective mediators? That is a difficult question to answer. Sometimes mediators are chosen by the judge – sometimes the lawyers make the choice. The choice of a mediator is hard. A mediator that is effective in personal injury cases may not be the mediator that will be effective in a family law or business litigation setting. 

My formula successful mediator selection and effective mediation is simple. Choose someone who has received extensive training in mediation skills. In most circumstances, choose a mediator that is an experienced lawyer rather than a retired judge. Choose a mediator who has the skill and qualities to keep people talking and the creativity to find potential solutions that the parties and their lawyers had not considered. 

Why is that my formula? Extensive and specific mediation training is very important. That is why before I ever offered services as a mediator I took intensive mediation training at Northwestern University. Simply stated, mediators need specific training. Just because someone has practiced law for a long period of time or has served as a judge is not enough. The skills employed by a mediator are learned tools that are enhanced by an individual mediator’s style. Not the other way around. 

Why use lawyers instead of retired judges? Judges have extensive experience in deciding cases. A mediator does not decide issues. A mediator can evaluate the matter before them if that is something the parties seek but for the most part a mediator is a facilitator and the consummate devil’s advocate. Evaluation that comes too early will result in mediation failure. Inability to facilitate or be the devil’s advocate cuts off potential avenues for settlement too early in the mediation process. Lawyers who have tried many cases and argued many appeals are in the position to evaluate when that is necessary but they are – because they have to be to be successful – skilled at facilitation, playing the role of the devil’s advocate, and serving as a persuader rather than a decider. 

Why choose someone who keeps that parties talking? There is often a substantial need for parties in the mediation to express their feelings and to air their grievances. Not through a lawyer necessarily but preferably directly. Once those feelings and grievances are heard and understood, it is fair more likely that the mediator can drive the parties through a combination of facilitation and evaluation toward a settlement that neither party will be likely to be happy with but one that both parties choose rather than continuing down the path toward the uncertain and unpredictable results at trial. 

Many clients become frustrated in mediation. Sometimes that is because the case is not ready for mediation. Sometimes that is because their lawyer has not provided a solid foundation for understanding the process. Sometimes the frustration arises out of two mediation tactics employed by mediators at the wrong time in the process. Those tactics are: (1) evaluative statements made before the parties are ready or willing to hear evaluation; and (2) money shuttle discussions that occur too early in the process. The combination of those tactics often serves only to frustrate clients or make them feel forced into a resolution that unsatisfactory to the client.

An alternative approach has been proposed, studied and implemented by effective mediators. That approach was first described in a publication from the Harvard Negotiation Project in the late 1970’s and is set forth in understandable form in the book Getting to Yes, Negotiating Agreement Without Giving In, Fisher, Ury and Patton (Penguin 2011, 3rd Ed.). The techniques described in book are the basis for mediation skills training at institutions like Northwestern University Law School and Harvard University Law School and are also the basis for training by community based ADR organizations around the country. The process of effective mediation is a difficult transition for many lawyers and judges because the focus of the process is on interests and needs rather than people and positions. The fundamental tenet of the process is to separate people and positions from interests and needs to come up with options for resolution that are more likely to result in resolution that simple evaluation of positions or shuttling of offers.

Lawyers and clients can be reticent to engage in this process because they want to cut directly to the shuttling of offers. The process can seem too “touchy feely” for some. However, properly explained and executed, the process recognizes and empowers the parties to a dispute to address their needs and interests rather than hammering positions. The result can often be solutions that are not in the realm of possibility if evaluation of positions or shuttling of numbers happens too early in the mediation process. In the process of evaluation and number shuttling, parties to mediation are not able to express or identify their needs and interests as separate and distinct from their personalities and positions. Without the process of identifying needs and interests, the mediator effectively becomes another advocate in a process already full of advocacy.

The process of separation of people and positions from needs and interests is a critical first step in effective mediation. The methodology in accomplishing that process is not instinctive, rather it must be trained, learned, and practiced. Experience as a trial lawyer or judge provides much needed understanding of the process of trials, negotiations, and settlements. The value of that experience cannot be understated because in many mediations, evaluation will become important to reaching resolution. Indeed, the experience and evaluative skills of the mediator may well be one of the critical reasons for selection of a particular mediator. However, experience as a judge or lawyer is not enough. Mediation is different from advocacy, in fact, there is no room for advocacy by the mediator. Evaluation is not advocacy – the former remains neutral, the latter is anything but neutral.