If Lawyers Dump the Billable Hour, Are Mediators Far Behind?

Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, recently called for firms to “get rid of the billable hour.”  There have been other similar calls , one notably by noted lawyer/Hollywood author Scott Turow, as well as other obituaries about the death of the billable hour.

If this catches on, can ADR practitioners be far behind?  Should we be looking for alternative billing arrangements? What would they look like?  Plaintiff lawyers have long assumes the risk of a case for a percentage of the outcome, but this would be unethical for a mediator.

Some insurance companies try to get their outside counsel to use flat fee, task based structures,  but is this really realistic for mediation?  A repeat user of mediation might not mind paying $1000 flat fee for a one-hour mediation one week and the same $1000 for a nine-hour case the next, but how would the one-time user feel?

I’d love to hear your ideas.  What would be a fair way to price mediation services other than hourly?

Mediation Naysayers Abound Despite Popularity

The Des Moines Register recently reported that “Iowans, like many Americans, have turned increasingly in the last decade to out-of-court solutions such as arbitration and mediation to resolve civil disputes with less cost and hassle.”

I guess I should be praising the people of Iowa for embracing ADR and mediation as a means to unclog their dockets and negotiate mediated solutions that satisfy their needs and interests, but a few naysayers still want to talk about the so-called negative aspects of ADR.  One expert cites ADR as the reason for the “vanishing trial”, which means fewer precedents to answer legal questions and fewer chances for young lawyers to hone trial skills.”

This type of ridiculous argument unfortunately only reinforces the animosity and distrust between ADR and the law that Diane Levin recently discussed.  Really? Does the court need another “who ran the red light?” soft tissue injury case to establish “precedent”?  Does this attorney really think that a party with a unique set of facts and an issue of first impression is not going to pursue the matter to its fullest?  And maybe things are different in Iowa, but here in Georgia, very few young lawyers without an ADA in front of their name try cases anyway.

I join Diane’s call to the legal community.  Mediation is not your enemy.  Mediation is not going to cause a dearth of legal precedent and the end of the adversarial system. Mediation is a way to flex your problem solving muscle, impress your clients, and simply get things done.

Let’s move past this pettiness and find the common ground.

Is it really “clear”?

The anonymous “NJmediator” writes today,

“Clearly, as a mediator, I cannot believe that legal confrontation will lead to the best outcome, for either party.”

Is it really that clear?  Does being a mediator permanently and mutually exclude you from believing that sometimes, a “legal confrontation” is both necessary and essential to reaching the “best outcome”?

As a mediator, I believe that many (and possibly, the vast majority of) cases could be better resolved by communication, cooperation, and compromise. But I also understand the need for the adversarial legal system. Sometimes a party must fight to protect their legal rights. Sometimes compromise does not satisfy a party’s needs.

I understand njmediator’s sentiment, and it would appear from perusing the site that this opinion stems from njmediator’s family law focus; but I am not certain that I can make that jump that all litigation is bad and all mediation is good.

Well That Was Odd.

I didn’t question the first $40 check .  While I told this particular party I would waive his (already reduced) fee due to his being on Social Security disability, I figured he was trying to make good.

The second $40 check gave me some pause, but I still figured this party was trying to pay what was owed.

The third check threw me because the three checks totaled more than what he would have owed me for my time.

So I dug out the agreement (which I had scanned to send to the Court – I don’t usually keep copies) and realized that the party was supposed to be paying the plaintiff that same amount.   After a few phone calls to both sides, the plaintiff said they hadn’t been paid on the Agreement and I now have to cut the plaintiff a $120 check.  I guess that vacation to the French Riviera is off…

New Blog – Mediating Certainty

It seems like there is an explosion of new ADR related blogs recently (Zebra Mediator and Enjoy Mediation come to mind).  Over the weekend, John DeGroote informed me about Mediating Certainty, a legal blog published by Keith A. Jones, an attorney and mediator from West Virginia.

I look forward to reading more from these three new blogs.

Best Wishes for a Full Recovery to Justice Ginsberg

It appears that it was caught at an early stage and her prognosis is excellent. My father-in-law is fighting cancer, so I know it can be difficult. Best wishes for a speedy recovery.

Are You Superstitious?

If so, today might not be a good day for you. I hold no beliefs in the supernatural or superstition, so Friday the 13th, or the number 13 are in no way daunting or ominous to me.

But it did make me think about luck.   Not “bad” luck, but “good” luck. I find myself wishing people “good luck” quite often. At the start of a cycling race. Before a job interview or sales meeting. On the way back to courtroom after a (rare) unsuccessful mediation in Small Claims court. A cycling race is determined by the skill and conditioning of the athletes. A person lands a sale or a job because of their ability (or sometimes because of who they know). And court cases are (hopefully) decided by the law (or sometimes equity). The judge doesn’t roll dice and decide the case based on whether he makes his point.

I guess it is just a social convention.

I’m not sure where I’m going with this. It just struck me as odd.

I missed Lincoln’s Birthday yesterday.

But I love this quote, so I’ll post it today:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850?), p. 81.

It is interesting to see a glimpse into the legal mindset of 150 years ago. Apparently, lawyers in Lincoln’s time were just as fond of taking every matter to court, and there were voices in the wilderness crying “Settle it…….settle it……”

As a litigator, I recognize that sometimes parties must fight for their rights. Sometimes litigation is the last best option. But there are also times when communication, cooperation, and compromise are best employed to resolve a dispute, and the parties need an experienced mediator who understands litigation, can analyze the risks, can help break communication barriers, and can recommend creative solutions.

Is Co-Mediation an Option for You?

While observing mediations to meet the requirements of the Georgia Office of Dispute Resolution, I watched a very interesting employment case with a local mediator I know.  Because she engaged me in the process, we ended up sort of “co-mediating” the case.   I remember at the time thinking that it could be a very effective manner of mediating cases, but wondered whether what type of cases could sustain the $400-500 per hour needed for two mediators.

Arizona attorney-mediator Alona Gottfried recently explored the concept of co-mediation on her blog and concluded that co-mediation

may not cost more if co-mediation in fact results in the mediation being more efficient and less time consuming. Further, if co-mediation is what is needed to resolve the matter, then it is worth the cost.

Something to keep in mind.

A Mediation Advocacy CLE Closer to Home

My Atlanta readers and clients might appreciate a Mediation Advocacy CLE slightly closer to home.  The Georgia Bar is offering their annual class on my birthday – March 18, 2009.  Bill Goodman is a well respected former trial lawyer and mediator who will certainly make the class informative and useful.   I am particularly interested in the segment on demonstrative evidence in mediation, about which my colleague Nancy Hudgins has written before.