Sunday, May 22, 2011

Settlement Lawyers

I've been doing something of a CLE marathon the last few days, and so got a chance to listen to a lot of mediators and lawyers talking about the current state of the dispute resolution world (that includes both litigation as well as mediation and arbitration). One thread that came out of a talk I heard by Federal District Court Judge Gutierrez had to do with lawyers' compliance (or lack of compliance) with the rules governing the preparation of cases for trial. One would think that lawyers would expect a better result, whether through trial or settlement, if they properly prepared their cases. But many don't bother. Are they just lazy, or are they inexperienced, or is it that they don't want to incur the expense? Or perhaps it's because they don't really expect their case to go to trial, since so few cases do get tried these days, that the work of compiling witness and exhibit lists, objections, jury voir dire questions and instructions, and the rest of their trial notebooks, seems unnecessary?

Yet I heard a panel of mediators talk about the extensive preparation many of them engage in, sometimes preparing the equivalent of their own trial notebook, and sometimes doing their own independent internet research (a controversial topic). People conducting or participating in settlement negotiations do not always seem aware that proper preparation is just as important to the success of a negotiation as it is in preparing for trial.

I heard some talk in a seminar I attended yesterday about how confusing it can sometimes be for lawyers to prepare cases for trial, while at the same time preparing cases for mediation. Perhaps it would be better if we used something like the English system, where the barristers can just focus on winning the case at trial, and don't have to think about settlement of the case, leaving the job of preparation and negotiation to the solicitors. On the other hand, some people have noted the decline of the ancient art of direct communication with opposing counsel, with many lawyers preferring to wait for the structured setting of a mediation before opening settlement negotiations. Perhaps that is more evidence that negotiation is being viewed as something of a specialty, with its own appropriate setting and rules, instead of something everyone does all the time.

And I heard another interesting idea yesterday, about the potential for using mediators in the setting of corporate deal-making. Mediators have already proven their value in labor negotiations, in family law, and in traditional litigation. There might also be situations in which corporate lawyers, who often engage in immense and protracted battles over the terms of the deals they are negotiating, and who sometimes act in unnecessarily adversarial ways, could use the help of professional mediators.

The practice of law is undeniably changing. Negotiation and mediation are now commonly taught in law school, which was not the case when I attended (admittedly more than a few years ago). The values of mediation are permeating the legal system. Lawyers have to think of themselves not just as warriors or advocates, but also as problem-solvers and peace-makers.

1 comment:

Kathryn Wechter said...

Mr. Markowitz, Not being able, in the last 3 years, to "move beyond" my experience in probate court ordered Mediation - I return , over and over again to hours of surfing the websites, blogs, and blawgs dedicated to Mediation. I wander in and out, following links from ADR, to JAMS, to, to attorney websites - anything that offers a discussion of ethics in mediation. More often than not, I don't find much beyond the general agreement that Mediators should behave ethically. Attorney mediators should try to suppress their advocacy instincts, and former judges should guard against being too "judgmental." What else? How is the consumer of mediation to know if the practices of his/her mediator are the usual practices. During my mediation of a matter in probate court, the mediator (a retired judge) allowed the opposing side to bring in witnesses to testify in support of claims being made. How can the mediator continue to claim impartiality, when he/she has allowed the presentation of "evidence" (via testimony by uninvolved parties) by one side only? The protection of one sides "confidentiality" prevents any chance to rebut or correct the "facts." If it is clear the mediator has listened to biased evidence , and then proceeds as if it had no effect on his/her ability to appear impartial - what the heck is going on? Indeed, to let the disadvantaged party know the interviewing of witnesses has occurred is itself coercive. That's how I felt anyway.
Where is the substantive discussion of ethical behavior? How can parties, especially in court ordered mediation, know if they are being treated at all fairly? It seems to me the universal view of "aren't we wonderful doing all this good work" is easy to maintain as long as no one gets to see what happens. After all, one of the few ethical guidelines there is, is the prohibition of using the content of mediation in any subsequent adversarial action. We know who that protects, and it isn't the bewildered consumer of mediation.