By John L. Watkins
Perhaps due to my background, perhaps self-interest, or perhaps simply due to the old saw regarding "birds of a feather," I tend to think that experienced lawyers, especially crusty old litigators, often make great mediators. Litigators, particularly old ones, know that you do not win every case, even those that seemed very strong. Litigators know the problems and issues that can arise in proving a case in court. Niceties such as the rules of evidence and the unpredictability of judges can make proving a case in court a much different (and far more difficult) proposition than simply arguing a position in a less formal environment. Litigators also often have a pretty good idea about how a case is likely to turn out.
Some may question, however, whether a lawyer who is used to advocating for parties can really slip into the role of a mediator and be neutral. The answer, at least as I have found it, is a resounding “yes.” Lawyers understand that, in acting as a lawyer, their job is to be the best advocate possible for their client. However, in acting as a mediator, their role is to help the parties try to settle. As a mediator, a lawyer is not representing either party, and is being paid by each party. A “win” for a mediator is helping the parties reach a settlement. So the fact that a mediator may, for other parties and in other circumstances, also act as a lawyer and advocate does not bother me in the least.
Of course, a lawyer’s background, like any proposed mediator’s background, should be considered in picking a mediator. If, for example, a proposed mediator is also a lawyer who has habitually represented only plaintiffs in personal injury cases, a defendant in such a case may be reluctant to use that person. However, even in such circumstances, such persons may make good mediators. In fact, somewhat paradoxically, such a lawyer may more fully comprehend the difficulties of actually trying a personal injury case.
Saturday, May 30, 2009
Monday, May 25, 2009
New Podcast Series on Mediation Available
If you want to know more about mediation, I just completed a new three-part podcast series on mediation that is available on the Chorey, Taylor & Feil website, at www.ctflegal/podcasts.html or on the firm's page on the Blip TV site, http://www.ctflegal.blip.tv/. The series includes an introduction to mediation that contrasts the civil litigation system to mediation. The second podcast provides a detailed explanation of how the mediation process works. The third podcast discusses how to pick the right mediator for a particular dispute.
The podcasts include a few fairly strong opinions, which are mine, and which have developed over time. I have been involved in representing parties in mediation for about twenty years (mediation came into widespread use in a Georgia a few years after I began practicing law). One of my early bosses and mentors, Jack Watson, chaired the Georgia Commission on Alternative Dispute Resolution at the time. Through Jack's prodding, all of us who were then in the litigation department at Long, Aldridge & Norman (now McKenna Long & Aldridge) got a good dose of exposure to mediation and mediation training, whether we wanted to or not!
Early on, I was very skeptical of mediation. It seemed to me to be just another step inserted into the civil litigation process, and, frankly, just an excuse for lawyers or retired judges to make money. After all, good lawyers settled cases anyway, so why would anyone need a mediator?Some of my early experiences in mediation validated my initial point of view. I remember one painful mediation involving a much older lawyer acting as a mediator. All he did, in a somewhat whiny voice, was to point out the expense of litigation and to say, "A bad settlement is better than a good lawsuit." This particular mediation was a totally worthless experience. (For the record, I do not see why you ought to take a bad settlement if you have a good lawsuit. The goal of mediaiton should be a fair settlement).At some point, however, I was exposed to really good mediators, such as Abe Ordover of the now-defunct Resolution Resources Corporation. Abe had a truly magical touch as a mediator. I saw him and other good mediators, such as Marty Ellin, help resolve cases that were difficult to settle, and that, in some instances, seemed "unsettleable." Unfortunately, at least for those of us who need good mediators in Atlanta, Abe moved to San Diego several years ago. Abe is now running an art gallery (Abe is an extremely talented photographer in his own right).
Not being completely set in my ways, early views of mediation changed drastically, and I became and remain a great proponent of the process. In my last ten to twelve years at McKenna Long & Aldridge, a great deal of my practice involved cases outside of Georgia. These cases ranged from fairly routine business litigation matters to huge cases involving many parties and lots of exposure. This experience gave me an opportunity to see mediators from other parts of the country, including a few of the more nationally known "rock stars" in mediation.
Although the experience was great, and McKenna was (and is) a great firm, the travel was not so great. When I left McKenna in 2007, ultimately having the good fortune of joining Chorey Taylor & Feil, my practice returned to being, in general, more local in nature. I felt it was a good opportunity to try to share my knowledge of mediation. As a result, I became a registered mediator with the Georgia Office of Dispute Resolution, and also started a mediation website, http://www.watkinsmediation.com/, which contains articles with my thoughts on mediation. Most of the content on the watkinsmediation site is also available on the CTF website at http://www.ctflegal.com/mediation.html. Just click the links on the bottom of the page for articles on basic mediation and advanced mediation. I hope the podcast series will also provide valuable information.
When I announced I was available to act as a mediator, many of my colleagues in the legal community apparently thought I was retiring from practicing law. That is most definitely not the case, and the vast majority of my time is spent practicing law. However, I have found that crusty old litigators tend to make great part time mediators. Although I do not feel old, and I hope I'm not "crusty," I am available, through Chorey, Taylor & Feil, to act as a mediator. My colleague, Celeste McCollough, is also a registered mediator and is available to mediate through the firm.
The firm has excellent facilities for mediation, and we do not charge an administrative fee.
The podcasts include a few fairly strong opinions, which are mine, and which have developed over time. I have been involved in representing parties in mediation for about twenty years (mediation came into widespread use in a Georgia a few years after I began practicing law). One of my early bosses and mentors, Jack Watson, chaired the Georgia Commission on Alternative Dispute Resolution at the time. Through Jack's prodding, all of us who were then in the litigation department at Long, Aldridge & Norman (now McKenna Long & Aldridge) got a good dose of exposure to mediation and mediation training, whether we wanted to or not!
Early on, I was very skeptical of mediation. It seemed to me to be just another step inserted into the civil litigation process, and, frankly, just an excuse for lawyers or retired judges to make money. After all, good lawyers settled cases anyway, so why would anyone need a mediator?Some of my early experiences in mediation validated my initial point of view. I remember one painful mediation involving a much older lawyer acting as a mediator. All he did, in a somewhat whiny voice, was to point out the expense of litigation and to say, "A bad settlement is better than a good lawsuit." This particular mediation was a totally worthless experience. (For the record, I do not see why you ought to take a bad settlement if you have a good lawsuit. The goal of mediaiton should be a fair settlement).At some point, however, I was exposed to really good mediators, such as Abe Ordover of the now-defunct Resolution Resources Corporation. Abe had a truly magical touch as a mediator. I saw him and other good mediators, such as Marty Ellin, help resolve cases that were difficult to settle, and that, in some instances, seemed "unsettleable." Unfortunately, at least for those of us who need good mediators in Atlanta, Abe moved to San Diego several years ago. Abe is now running an art gallery (Abe is an extremely talented photographer in his own right).
Not being completely set in my ways, early views of mediation changed drastically, and I became and remain a great proponent of the process. In my last ten to twelve years at McKenna Long & Aldridge, a great deal of my practice involved cases outside of Georgia. These cases ranged from fairly routine business litigation matters to huge cases involving many parties and lots of exposure. This experience gave me an opportunity to see mediators from other parts of the country, including a few of the more nationally known "rock stars" in mediation.
Although the experience was great, and McKenna was (and is) a great firm, the travel was not so great. When I left McKenna in 2007, ultimately having the good fortune of joining Chorey Taylor & Feil, my practice returned to being, in general, more local in nature. I felt it was a good opportunity to try to share my knowledge of mediation. As a result, I became a registered mediator with the Georgia Office of Dispute Resolution, and also started a mediation website, http://www.watkinsmediation.com/, which contains articles with my thoughts on mediation. Most of the content on the watkinsmediation site is also available on the CTF website at http://www.ctflegal.com/mediation.html. Just click the links on the bottom of the page for articles on basic mediation and advanced mediation. I hope the podcast series will also provide valuable information.
When I announced I was available to act as a mediator, many of my colleagues in the legal community apparently thought I was retiring from practicing law. That is most definitely not the case, and the vast majority of my time is spent practicing law. However, I have found that crusty old litigators tend to make great part time mediators. Although I do not feel old, and I hope I'm not "crusty," I am available, through Chorey, Taylor & Feil, to act as a mediator. My colleague, Celeste McCollough, is also a registered mediator and is available to mediate through the firm.
The firm has excellent facilities for mediation, and we do not charge an administrative fee.
Saturday, May 23, 2009
The Twenty Percent Rule
By John L. Watkins
Sometimes, clients that I represent or parties in mediation will ask me why they should consider compromising a claim. They may express supreme confidence in the case, stating that "there is no way we can lose," and expressing extreme reluctance to take anything less than one hundred percent of what they want.
People with this attitude need to be introduced to and to understand the "twenty percent rule." The "twenty percent rule" is not an original idea of mine; it was mentioned in a discussion I had a couple of years ago with a very experienced and somewhat crusty old litigator. The rule does, however, encompass thoughts I have had for many years. The twenty percent rule just puts these thoughts and concepts in a much more compact and easily understood package.
The twenty percent rule is this: No matter how good you think your case is, no matter how good your lawyer is, and no matter how obvious you think the result should be, there is always a twenty percent chance you will lose in litigation.
Why is the twenty percent rule true? Because unforeseeable things happen in litigation. Star witnesses blow up in depositions or on the witness stand, even if they are well prepared. There may be a document or email out there that you (and your lawyer) did not know about when the case was filed.
But, most importantly, cases are resolved by judges and juries. Judges and juries are human beings, and, given that fact, may not see things your way. Judges and juries may seize upon facts and issues that you know are irrelevant to the dispute, but which become highly relevant, because they get to decide the case, not you.
Judges and juries may simply like the other side better than you. Maybe your confidence will be perceived as arrogance. Maybe the other side has an explanation that resonates. If you do not think these factors are important, you should know that, in large cases, parties hire psychologists and sociologists as jury consultants. Jury consultants can provide tremendous insight into how jurors from the area will look at a case, and their research often reveals surprises.
Judges can also be a factor. In a couple of recent important cases, I have actually seen judges simply ignore key legal issues that were potentially dispositive, and that were thoroughly briefed and presented to them. Why? I do not know, but can only assume that addressing the issues would have made it more difficult for them to reach the result they had decided to reach. Intellectually defensible? Of course not, but this stuff happens in the real world.
I am not suggesting that the civil litigation system is irrational. I am not suggesting that you should evaluate a case with the assumption that an irrational result will be reached. Most of the time, the system works and reaches a rational result. Usually, the party wins that should win. But the twenty percent rule does come into effect. And if you are considering a settlement, you should keep the twenty percent rule in mind in your analysis.
What does this mean for mediation? Well, first, it means that mediation is a process parties should definitely consider, because it gives them the ultimate control over the outcome. A mediator cannot make a party settle if the party does not want to settle. Second, it means that parties should have a little flexibility in mediation and with regard to settling. The system is not perfect, and will not always reach the result you believe it should. The old saw that "a bird in the hand is worth two in the bush" may be something you should consider.
For more information and thoughts on mediation, please read the rest of the blog, and visit www.watkinsmediation.com, or the mediation pages at www.ctflegal.com.
Sometimes, clients that I represent or parties in mediation will ask me why they should consider compromising a claim. They may express supreme confidence in the case, stating that "there is no way we can lose," and expressing extreme reluctance to take anything less than one hundred percent of what they want.
People with this attitude need to be introduced to and to understand the "twenty percent rule." The "twenty percent rule" is not an original idea of mine; it was mentioned in a discussion I had a couple of years ago with a very experienced and somewhat crusty old litigator. The rule does, however, encompass thoughts I have had for many years. The twenty percent rule just puts these thoughts and concepts in a much more compact and easily understood package.
The twenty percent rule is this: No matter how good you think your case is, no matter how good your lawyer is, and no matter how obvious you think the result should be, there is always a twenty percent chance you will lose in litigation.
Why is the twenty percent rule true? Because unforeseeable things happen in litigation. Star witnesses blow up in depositions or on the witness stand, even if they are well prepared. There may be a document or email out there that you (and your lawyer) did not know about when the case was filed.
But, most importantly, cases are resolved by judges and juries. Judges and juries are human beings, and, given that fact, may not see things your way. Judges and juries may seize upon facts and issues that you know are irrelevant to the dispute, but which become highly relevant, because they get to decide the case, not you.
Judges and juries may simply like the other side better than you. Maybe your confidence will be perceived as arrogance. Maybe the other side has an explanation that resonates. If you do not think these factors are important, you should know that, in large cases, parties hire psychologists and sociologists as jury consultants. Jury consultants can provide tremendous insight into how jurors from the area will look at a case, and their research often reveals surprises.
Judges can also be a factor. In a couple of recent important cases, I have actually seen judges simply ignore key legal issues that were potentially dispositive, and that were thoroughly briefed and presented to them. Why? I do not know, but can only assume that addressing the issues would have made it more difficult for them to reach the result they had decided to reach. Intellectually defensible? Of course not, but this stuff happens in the real world.
I am not suggesting that the civil litigation system is irrational. I am not suggesting that you should evaluate a case with the assumption that an irrational result will be reached. Most of the time, the system works and reaches a rational result. Usually, the party wins that should win. But the twenty percent rule does come into effect. And if you are considering a settlement, you should keep the twenty percent rule in mind in your analysis.
What does this mean for mediation? Well, first, it means that mediation is a process parties should definitely consider, because it gives them the ultimate control over the outcome. A mediator cannot make a party settle if the party does not want to settle. Second, it means that parties should have a little flexibility in mediation and with regard to settling. The system is not perfect, and will not always reach the result you believe it should. The old saw that "a bird in the hand is worth two in the bush" may be something you should consider.
For more information and thoughts on mediation, please read the rest of the blog, and visit www.watkinsmediation.com, or the mediation pages at www.ctflegal.com.
Monday, May 18, 2009
Trust Is Everything
By John L. Watkins
Trust is almost everything in a mediator. I still represent parties in mediation more as a lawyer than as a mediator, and recently represented a party in a multi-party mediation. During the mediation, my client made an offer that was contingent on participation by another party on my client's side of the case. The mediator presented the offer to the other side without obtaining the participation of the other party. It was early in the mediation, there were excuses offered, and, at the end of the day, "no harm/no foul" probably applied. All of that said, I will be reluctant to use this mediator again.
As stated, trust is almost everything in a mediator. It is critical for the mediator to understand a party's position and to offer no more or no less than the party has authorized. It does not matter if the mediator thinks the position is unwise or that another position might be better. Of course, the mediator should be free to relay his or her concerns about the position to the party taking it in caucus. But the mediator is not empowered to impose a settlement, and is thus also not empowered to, in effect, take the offer out of a party's hands and reshape it, even for the best of subjective motives.
I think it is also important for a mediator to be upfront about his or her approach to mediation. I prefer an evaluative approach, but not one that is heavy handed. I think reality testing can often best be done through questions. If someone wants a purely facilitative mediator, I am not the right choice. My views on mediation can be found at http://www.watkinsmediation.com/ (click on the basic mediation and advance mediation buttons for various topics), and also at my law firm's website, www.ctflegal.com/mediation.html (click on the links at the bottom of the page for articles on basic and advanced mediation).
Trust is almost everything in a mediator. I still represent parties in mediation more as a lawyer than as a mediator, and recently represented a party in a multi-party mediation. During the mediation, my client made an offer that was contingent on participation by another party on my client's side of the case. The mediator presented the offer to the other side without obtaining the participation of the other party. It was early in the mediation, there were excuses offered, and, at the end of the day, "no harm/no foul" probably applied. All of that said, I will be reluctant to use this mediator again.
As stated, trust is almost everything in a mediator. It is critical for the mediator to understand a party's position and to offer no more or no less than the party has authorized. It does not matter if the mediator thinks the position is unwise or that another position might be better. Of course, the mediator should be free to relay his or her concerns about the position to the party taking it in caucus. But the mediator is not empowered to impose a settlement, and is thus also not empowered to, in effect, take the offer out of a party's hands and reshape it, even for the best of subjective motives.
I think it is also important for a mediator to be upfront about his or her approach to mediation. I prefer an evaluative approach, but not one that is heavy handed. I think reality testing can often best be done through questions. If someone wants a purely facilitative mediator, I am not the right choice. My views on mediation can be found at http://www.watkinsmediation.com/ (click on the basic mediation and advance mediation buttons for various topics), and also at my law firm's website, www.ctflegal.com/mediation.html (click on the links at the bottom of the page for articles on basic and advanced mediation).
Tuesday, May 12, 2009
Mediation Comes to Italy
In May of 2003, I attended a seminar on international dispute resolution sponsored by the Center for International Legal Studies in Heidelberg, Germany. The participants included lawyers from most of western Europe, the U.S., Brazil and Argentina. At the time, most of the participants from outside the U.S. were unfamiliar with mediation. Mediation is a structured settlement negotiation process in which the parties meet with a neutral third party called a mediator. The mediator cannot impose a settlement on the parties, but tries to assist the parties in reaching a voluntary settlement. Particularly when the parties participate on a voluntary basis (as opposed to being referred by a court), mediation has proven to be very effective in resolving disputes. For more basic information about mediation, see http://www.ctflegal.com/mediation-basics.html. For more advanced topics, see http://www.ctflegal.com/advanced-mediation.html. Or check out www.watkinsmediation.com.
The international participants at the Heidelberg conference were very familiar with international commercial arbitration, which is a time-honored method of resolving commercial disputes outside of a country's court system. Unlike mediation, arbitration (at least in its traditional form), is a binding dispute resolution process, in which arbitrators (usually lawyers or retired judges, although sometimes business people) decide the case in the place of a judge or jury. To U.S. lawyers, arbitration and mediation have gone together for many years as the two most prominent forms of "alternative dispute resolution" or "ADR" (meaning dispute resolution outside of the civil court system). So, it was surprising to me in 2003 that our European colleagues were so unfamiliar with one form of ADR (mediation) when they had used another form (arbitration) for many years.
Apparently, as Bob Dylan might say, the times are changing. I just attended a conference on international agency and distribution agreements sponsored by the Contract Section of the Union Internacionale des Avocats (International Association of Lawyers, or "UIA"). At this conference, I had the good fortune to meet Carlo Mastellone, the founder of Studio Legale Mastellone in Florence, Italy. Carlo, an elegant man born in London, explained to me that there is a huge backlog of civil cases in Italy, and that he and his colleagues hope to help resolve the situation through the use of mediation! Carlo is helping organize the effort in Florence, and they even have a website, http://www.conciliazionefirenze.org/. The website is in Italian, which makes it a little difficult for me to use (I would have a slightly better chance with German). However, I really like the artwork, which was done by an artist friend of Carlo.
In any event, I am glad that mediation has landed in Europe. In fact, I am glad we were finally able to export something to Europe relating to our legal system -- although it is actually about avoiding our legal system -- that may actually be appreciated! Now, if I can just get a case in Florence ....
The international participants at the Heidelberg conference were very familiar with international commercial arbitration, which is a time-honored method of resolving commercial disputes outside of a country's court system. Unlike mediation, arbitration (at least in its traditional form), is a binding dispute resolution process, in which arbitrators (usually lawyers or retired judges, although sometimes business people) decide the case in the place of a judge or jury. To U.S. lawyers, arbitration and mediation have gone together for many years as the two most prominent forms of "alternative dispute resolution" or "ADR" (meaning dispute resolution outside of the civil court system). So, it was surprising to me in 2003 that our European colleagues were so unfamiliar with one form of ADR (mediation) when they had used another form (arbitration) for many years.
Apparently, as Bob Dylan might say, the times are changing. I just attended a conference on international agency and distribution agreements sponsored by the Contract Section of the Union Internacionale des Avocats (International Association of Lawyers, or "UIA"). At this conference, I had the good fortune to meet Carlo Mastellone, the founder of Studio Legale Mastellone in Florence, Italy. Carlo, an elegant man born in London, explained to me that there is a huge backlog of civil cases in Italy, and that he and his colleagues hope to help resolve the situation through the use of mediation! Carlo is helping organize the effort in Florence, and they even have a website, http://www.conciliazionefirenze.org/. The website is in Italian, which makes it a little difficult for me to use (I would have a slightly better chance with German). However, I really like the artwork, which was done by an artist friend of Carlo.
In any event, I am glad that mediation has landed in Europe. In fact, I am glad we were finally able to export something to Europe relating to our legal system -- although it is actually about avoiding our legal system -- that may actually be appreciated! Now, if I can just get a case in Florence ....
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