Fisher Mediation
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Mediation: What’s In It For Litigators

by Paul Fisher, Edited by Judith Stalk

The ABA held its 1999 mid-year meeting in Los Angeles, and its Section of Dispute Resolution presented an extraordinary program, “Dispute Resolution- Catch the Next Wave: Successful Applications for Lawyers”. What follows is some of the best ideas from almost a dozen litigators and mediators from a round table discussion:

  • During the joint session, trial lawyers can still get the rush of trial through the passion and emotion of vigorous advocacy.
  • It’s no fun to deal with a verdict against your client, and then struggle to get paid.
  • There is no case that can not be lost.
  • Clients want to see the advocacy of their attorney, but also want to settle the case.
  • Mediation provides litigators the ability to get off the hook.
  • The biggest obstacle in settling cases: dysfunctional lawyers.
  • Settling this case as quickly and as inexpensively as possible will produce clients who will refer more business.
  • It’s not as good as sex, but it’s really close.
  • Mediation provides parties with solutions and lets them get on with their lives, as they could not with the alternative: litigation.
  • Mediation increases lawyers control over settlement, getting their fees paid, and bringing finality for their clients.
  • For litigators, settling cases puts more money in litigators pockets: the more cases settled, the more cases will come in.
  • Mediation is a client-relations tool.

Where mediation will likely go in the next ten years:

  • Should there be a rule requiring parties and counsel to do early factual investigation?
  • Mediations will take place earlier in the litigation process (was a recurrent theme from numerous presenters). “For the litigants, the substantial expenses of motion work, depositions, document discovery, interrogatories, experts, trial preparation, and trial, can all be avoided if the case can be settled at the beginning,” Justice Richard C. Neil
  • Mediation will be utilized for emergency and extraordinary matters i.e. temporary restraining orders, orders to show cause, during the course of construction projects, and potentially volatile business joint ventures, by way of example.
  • Mediation during the deal making and partnership creation stage.
  • Education of clients about ADR alternatives will be everything.
  • Lawyers will return to the practice of attorneys and counselors at law.
  • The culture of lawyering will change, restoring civility to the ways lawyers relate to each other. (This is more than merely dreaming. For the past several years, I have noticed a dramatic change in the level of sophistication in the mediation process which lawyers now have. That sophistication has maintained the same high level of advocacy, but has also reflected an enhanced understanding of what is in a clients best interest: resolution and reduced expenses.)
  • If the attorney who brings his client to mediation and the opposing counsel has not attempted to settle at the mediation, the first attorney has shown his client that he has done his best to resolve the dispute nonetheless.
  • I love mediation because my clients get to talk. They speak with passion, it lets them vent their frustration. The opposing parties and counsel see the true emotion and can evaluate my client as a witness.
  • What keeps clients happy is to resolve disputes.
  • Astute defense counsel know that their carriers are happy when files are closed.
  • Avoid the “cram down mediation” (court ordered) and choose the “finessed mediation” by retaining the mediator of your choice and creating your own mediation process.