August 2007 Issue of Metropolitan Corporate Counsel Explores ADR

The August 2007 Issue of Metropolitan Corporate Counsel contains several articles exploring mediation, arbitration and ADR from the perspective of the practicing attorney and corporate counsel. There are some interesting articles, including an article by Frederick D. Berkon of Leader and Berkon, LLP, a New York litigation boutique, which makes “The Case For Mediation In The Defense Of Complex Commercial Litigation” and an article by John E. Osborn on “Effective Closing Techniques For Settling Disputes Through Mediation.”

It was refreshing to read two articles that both unabashedly recommended mediation as the preferred method for resolving certain disputes. In fact, Mr. Osborn’s article is more a paean to the use of mediation than anything else. For example, Mr. Osborn writes,

The dynamics and ‘creativity’ of the mediation process really work . . . What we both know is that our clients have been most satisfied when a mediated solution is reached. Mediation meets the basic needs of the parties to be heard and to reach resolution on the merits, without ‘breaking the bank’ on the cost of litigation.

Mr. Berkon’s article also lauds mediation as “a unique setting that can be more effective in resolving a complex commercial dispute than a formal trial or arbitration setting.” But he also explores the critical thinking necessary to make a successful mediation, noting that

A thorough assessment of the strengths and weaknesses of the case in its entirety must be conducted; a candid analysis has to be made of whether the judge (if a bench trial) or jury will be able to comprehend the critical and complex issues simply from hearing witness testimony and viewing documents. The client must be fully briefed on the strengths and weaknesses of each critical issue of the case and the likely outcome of the trial. Accordingly, the client must enter into mediation knowing their counsel’s opinion as to the best and worst case scenarios, and the financial ramifications associated with each.

In the section entitled “How To Be Effective In The Mediation Process,” Mr. Berkon points out that, “It is important to emphasize a commitment to the mediation process. Thus, writing in a fair and reasonable tone, rather than an argumentative and aggressive one, will establish credibility at the outset.” Many attorneys fail to understand this aspect of the mediation process and adopt an “argumentative and aggressive” tone. I was glad to read Mr. Berkon address this in such a positive and instructive manner.

It was a little disarming to read, however, that Mr. Berkon believes that the mediator “[should be willing to] communicate to the parties that he or she is, in effect, functioning as an arm of the court at the outset, and is, thus, obligated to go to all necessary ends to resolve the matter.” I would humbly disagree with this assertion and suggest to Mr. Berkon that it is the parties, not the mediator that must be willing “to go to all necessary ends to resolve the matter.” Mediation is still a voluntary, non-binding process and try as one might to cloak the mediator with the color of authority, even the best mediator cannot force parties to take a deal they are otherwise unwilling to accept.

There are several other articles on the Metropolitan Corporate Counsel worth your time, including an interview with Robert B. Davidson, Executive Director, Arbitration Practice of JAMS, and an interview with several prominent members of the ADR community about “Strategies For Successful Interaction With ADR Neutrals.”

LinkedIn – My Space for business people?

Maybe I’m late to this game, but yesterday I was invited to become “connected” to a colleague via LinkedIn. For the other uninitiated, its a networking site. You invite your work colleagues, associates and friends, and then they invite their work colleagues, associates and friends, and like that old shampoo commercial, they’ll tell two friends, and so on and so on . . . All of a sudden, you have tens of thousands of potential contacts! It has a global reach as well – Geoff Sharp is in the network.

It seems like a great idea – until you realize that you can’t directly contact most of the people on the site unless you “upgrade” to a better membership. To the tune of $20/month. I’m going to give it a whirl and see if I can build a list of colleagues. So, if you receive an email from LinkedIn with my email address in the body, its legit. Don’t dump it into your spam folder!