Mediation and ADR: From “Alternative” to “Mainstream”
By Susan M. Helms (Previously published in the Paraclete, St. Petersburg Bar Association newsletter, by Susan M. Helms, Chair, ADR Section)
The St. Pete Bar ADR Section recently had its annual CLE and CME (continuing mediator education seminar), which was titled the same as this article. One cannot help but notice at these seminars that there is the sense of “preaching to the choir,” as we see those who are already waist-deep into the practice of ADR attending, and do not see others who would benefit greatly from exposure to the concepts and rules and decisions that are presented at the seminar. Therefore I thought it might be helpful to pull out a few nuggets of information that the Bar as a whole should be aware of.
When I was in law school 15+ years ago, the concept of “ADR” was new to many. My law school, Stetson University, prepared us to file complaints and conduct trials and appellate oral arguments. But the “ADR” concept was relegated mostly to obscure contracts of adhesion that contained arbitration clauses. The idea of MANDATORY court-ordered mediation was still a pie in the sky notion for most of us.
How times have changed! The practice of law now is not simply a barrister’s practice. Attorneys are being challenged to represent and advocate for their clients in totally new and unfamiliar settings which avoid the traditional government-sponsored courthouse as the fact finder or trier of last resort. Civil disputes are more efficiently resolved outside the courthouse in many cases. So the reality and the trend is that our traditional courts will resolve criminal matters, and various forms of alternative dispute resolution will fill the gap to resolve civil, family, business, consumer, and many other types of disputes. A lawyer who is not involved in criminal practice must begin to educate himself or herself about these types of resolution alternatives.
Most civil practitioners have now become aware that, in certain types of cases, they will be ordered to attempt a mediation before the Court sets a matter for trial. What they have probably not done is to educate themselves about how the mediation process really works. From a personal perspective, let me say that I thought a court resolution was the “be-all and end-all” goal for every case until I trained as a mediator in 1999. A light bulb suddenly went on when I realized that parties could agree to any result they wanted, and it need not be the result their lawyer was telling them a court would order. The beauty of agreeing is avoiding the many risk factors of trial, such as: a) your lawyer is wrong about the law; b) your lawyer is ineffective in presenting your case; c) you are a lousy witness for yourself, and the best-paid expert in town cannot fix your case; d) the other side has information about the case that you do not have; e) the judge or jury will view your case through a prism that is very different from how you see it. In other words, short of a written guarantee that a party WILL WIN in court (something no sane litigator, knowing the vagaries of the courtroom, would offer), clients have a strong incentive to avoid their worst-case scenario, and to take something less than their best-case scenario, if it can become a sure thing (something about a bird in hand comes to mind). The further beauty of resolving disputes short of trial is that various protections can be negotiated into a settlement agreement to insure collectability, timing of payments, confidentiality, and many other assurances that might be desirable from a personal or business perspective but are not within the court’s purview to grant to litigating parties.
So what should the litigator do when he is called upon to wear a very different hat at mediation? The truth is, in some cases, the litigator should send an associate or colleague to mediation, if they cannot shed their aggressive advocacy role for a short while to see if a resolution is possible. If trial is approaching, if the drums of war are beating in the background, it may be truly difficult for a courtroom advocate to lower the shields and frankly discuss a settlement. Letting another lawyer do that for your client is a possibility. A second possibility is for the courtroom advocate to learn about mediation through seminars, which may be geared toward mediators, so you can understand where the mediators are coming from and how they operate, and improve your skills at wearing a different style of hat from day to day.
At the recent St. Pete Bar seminar, Dr. Alex Gimon, a psychologist, spoke about “Personality and Linquistic Considerations in Mediation: Getting to Know Your Parties.” In my layman’s terms, he told us that people come to a mediation (or a lawsuit, for that matter) with expectations that they may not be expressing. These expectations may arise from their cultural background, their family history, their core values, their need for revenge, or maybe their lawyer’s counsel. Identifying these expectations and finding a win-win way to meet them, in whole or part, is how a mediator will get them to a resolution. What a different role than a judge, who cares not what you expect, but what the law requires! You can see that your practice as a litigator could take a very different turn in an alternative dispute resolution proceeding than in a court of law.
Another speaker at the recent seminar, Attorney Nancy Hutcheson Harris from Tampa, spoke at length about three new “alternatives” to getting a case decided, including collaborative law, private judges, and voluntary binding arbitration. These are increasingly popular and being promoted aggressively by attorneys such as Nancy, who wish to be involved in them as private judges, etc. Nancy touted the usefulness of these proceedings for parties who will continue in working, familial or business relationships after the proceeding, which isn’t always an easy matter after tearing the other side to shreds in the courtroom. Other benefits include speed and control of location, confidentiality, and the ability to streamline presentations by agreeing to adjust the rules of evidence as appropriate so that the most important information is available to be considered by the decisionmaker. Many “panels” of qualified and willing persons are being formed across the country to promote their ADR services. They are usually lawyers who have had specific training (not unlike the Florida Supreme Court’s mandated training for mediators). The training helps them to function in something other than the traditional court and law environment. As a traditional litigator, you would be remiss not to learn some of what they learn, so you know the rules of the game as well as the decisionmaker.
To briefly describe some of these terms that may be foreign to you, collaborative lawyering is settlement-oriented representation where the attorneys are specifically contracted to do their best to resolve a case and who agree that they will NOT continue to represent their clients in an adversarial court proceeding. The very idea that a client would have to start over with a court advocate, and the changed attitude and perspective of the collaborative attorney, will in theory promote settlement of cases.
Private judging allows the parties to pick a mutually respected judge or panel of judges with specific expertise or known disposition to decide a case. The private judges can be chosen and ordered to preside, somewhat like special masters, by our elected or appointed court judges. Or the parties can simply agree to privately contract, and to spell out the terms of the engagement by agreement. Similarly, voluntary binding arbitration will allow submission of a dispute to a panel or single arbitrator, usually following some pre-cast rules regarding appealability, rules of evidence, etc. to decide a dispute. So many consumer contracts now require arbitration that lawyers are getting busy, along with experienced persons from the particular industry at issue, acting as arbitrators.
To sum up where we are, ADR is no longer “alternative” in the sense of being anti-establishment, or uncommon. The various ADR programs are mandated by our state statutes, are fleshed out by rules of procedure and rules of professional conduct, and are rapidly becoming a mainstream resolution process for the citizenry at large. Lawyers would be well advised to dive into this mainstream, learn the rules of engagement and the finer points of how to be successful in such a setting, and to float with the current of change.