Hello to the Participants in the 40 Sites in 60 Minutes Online Tour

Hello all. I hope you enjoy my site. I must, however, apologize for having puff pieces on the site lately. I try to have a mix of topical and humorous content. I’ve been very occupied with marketing this week and haven’t had the time to sit down and write anything meaningful.

Is a “Mediator’s Check List” Really Helpful?

Mediate.com has an article written by California mediator David Laufer entitled, “How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues” Mr. Laufer’s article discusses how to prepare a “Mediator’s Check List (MCL) of Key Legal and Factual Issues.” He argues that the MCL will “help the Mediator identify and gain a better understanding of the important issues to discuss.”

Quite interestingly, I had a discussion yesterday with an attorney colleague about this very subject. He asked me whether I felt that preparing and presenting a brief to the mediator would be of benefit and whether I felt that it would shorten the mediation process. I told him that my experience with the mediation brief was mixed. There appears to be a tension between the mediator obtaining as much information as possible, and encouraging an exchange of information during mediation.

Regardless of the information provided by the parties before a mediation, every good mediator I have observed allows the parties to spell out their case and make their arguments themselves. The first hour or two of every mediation I’ve participated in has typically consisted of a recapitulation of the facts and legal issues involved. The parties want the opportunity to relate their stories to the mediator, to have their proverbial “day in court.” This is a necessary and vital part of the mediation process, for both personal injury plaintiffs and defendants and business persons alike. After having vented their frustrations, something they have heretofore only done to family, colleagues, and counsel, the parties begin to start thinking seriously and rationally about their case. There is something therapeutic about telling a story to a neutral third party who listens intently, takes notes and asks pointed questions, even if that neutral party doesn’t ultimately make any decisions.

One must wonder whether having a comprehensive check list of the scope and detail of the one Mr. Laufer suggests might limit that exchange. Will the parties, after having prepared a 42 item “checklist” (which likely took the attorney several hours) wish to spend more time at the mediation table reiterating the checklist? Will the mediator be tempted to tell a party who begins from the beginning, “I already read that in your brief/checklist/summary. Let’s move on to something else.”

I fully understand that the mediator needs to be prepared in advance. He should know the basic factual and legal posture of the cases. I ask for background information on the case. Typically, its the complaint and answer, interrogatory responses and if they’re far enough along, the summary judgment brief. But as a practical matter, I simply cannot envision an attorney spending the billable hours required to answer all 42 questions posed on Mr. Laufer’s checklist with enough detail for it to be useful. While mediation is used frequently and quite successfully here in Georgia, I cannot think of one instance in which a party has prepared a statement/checklist of such detail, especially in cases involving less than $250,000 in damages, where mediation is viewed as a cost effective alternative. I would be interested in hearing from Mr. Laufer about his response rate and the types of cases he handles.

Since the cat’s out of the bag – 40 Mediation Sites in 40 Minutes

It looks like the super cyber sleuths Vickie Pynchon and Stephanie West Allen have outed Geoff Sharp’s high-tech online presentation about mediation resources on the web, 40 Sites in 40 Minutes.

I’m featured on the list! It’s flattering that my fledging blog is receiving attention from one of the pioneers of mediation related blogging. I guess I should post less about the Pants Judge and more about mediation now.

Thanks, Geoff.

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.”

Thanks for the warm welcome to the “Blogosphere”

I just wanted to give a big thanks to Diane Levin of the blog Online Guide to Mediation for her nice email and for adding me to the rolls of the World Directory of ADR Blogs. Diane’s sites hold a wealth of knowledge on mediation and negotiation.

I would also like to say hello to Vickie Pynchon of Settle It Now and the SoCal Mediation Association blogs. Vickie also reported on the apparent failure of the mediation program in the UK Technology and Construction Court and was kind enough to link back to my commentary.

Thanks to you both.