There is a “need for mediation experts” and “some form of a mediation group in law firms, especially larger practices.”
Dennis Klein, “The Case For Creating A Mediation Department At Your Firm,” Law360, 11/14/2017 [Footnote 1]
In the article linked above, Mr. Klein says that most law firms “tout mediation experience” and “have alternative dispute resolution practices” that focus on arbitration; but “no major law firm has a dedicated mediation department.”
He adds that, even though advance consultation with a mediation specialist “could result in more favorable” mediation results:
–Litigators “do not work with” mediation experts “prior to mediation”; and
–Preparations for mediation are “relatively scant.”
The Need for “some form of a mediation group”
Mr. Klein argues for “the necessity” of having “some form of a mediation group” within law firms, citing the following four reasons.
“1) The volume of mediation in litigation justifies applying law firm resources to this specialty.” For example:
–“Many judges” require mediation “before allowing the case to proceed to trial”;
–Few litigants are willing to risk a resolution imposed by someone else, “rather than” taking control of the resolution “through mediation”;
–“Few significant business disputes go to trial”; and
–Courts encourage mediation “whenever possible.”
“2) The skill set utilized in mediation is substantially different than either a motions practice or an appellate argument.” Unlike litigation:
–No one “wins” in mediation;
–A good result is where the parties believe they’ve “reached a ‘fair compromise’”;
–Instead of a judge or jury as decision maker, the mediator is a facilitator who helps the parties “bridge monetary gaps” and address other interests; and
–Creativity is essential to finding a solution that all can agree upon.
“3) The trend toward expertise and specialists in every aspect of the law mandates taking advantage of expertise in mediation.” Despite such trends and despite “the value of reaching a good result in mediation”:
–Law firms “do not tout mediation expertise”;
–Typically, “very little preparation” is given to mediation; and
–A mediation effort “would be greatly enhanced” by utilizing attorneys “with mediation expertise” to address the many variables and issues that arise in a mediation session.
“4) Client relations would benefit from knowing that law firms are working to achieve an edge in litigation with an eye toward mediation as a cost-effective means to resolve business disputes.” For example:
–“Offering a mediation strategy” in litigation “is a tremendous asset” in providing a cost-effective “edge in litigation”; and
–“Mediation expertise provides a vehicle for assuring” an effective mediation strategy.
Conclusion
Is Mr. Klein is onto something here?
Footnote 1: Dennis Klein is owner of Critical Matter Mediation, a Miami-based boutique alternative dispute resolution firm.
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