20 Mar 2018
Don’t litigate! Mediate!
“I honestly believe mediation and other alternative dispute resolutions (ADR) techniques are superior dispute resolution options than litigation,” says Jim Young, a partner with the Dallas office of Culhane Meadows PLLC.
Not only has Young been practicing corporate and mergers and acquisitions law for 33 years, he also provides ADR assistance on complex corporate matters. He describes the cases he mediates as “complicated situations involving contracts, multiple moving parts and transactions gone bad.”
Though he has seen his share of courtrooms throughout his legal career, today Young favors mediation because he enjoys helping people resolve disputes. “Mediation is a means, possibly the primary means, where people can deal with those issues that trouble them, face-to-face, to come to a mutually acceptable solution,” he says.
According to the U.S. Bureau of Labor Statistics (BLS), Young is not alone in his adoration for ADR as a viable alternative to litigation: the BLS estimates the need for mediators will increase by 10% in the coming year.
Columbus, Ohio attorney Joe Dreitler, namesake of the Intellectual Property and Trademark firm of Dreitler True, also mediates cases on occasion. Moreover, he has had six lawsuits mediated over the years, so he is familiar with the process both as a participant and arbiter.
While Dreitler does not think all mediators need to also be lawyers, there are certain situations when an arbiter should possess a law degree. For example, if the dispute being mediated involves intellectual property, then “they must know the subject area.” Conversely, if a case being mediated “is simply a matter of money, then there is no need for any specialized understanding,” he says. He cites personal injury cases or contract disputes as two examples of matters where the mediator needn’t also be an attorney.
Young agrees. “I know some mediators who do a great job on family law matters where a lawyer might not do as well. But in complex disputes like I deal with, then yes, the mediator should have a legal background,” he says. As for a non-lawyer mediating a domestic relations case, Young explains non-attorney mediators might be more simpatico, especially when tempers could flare.
Although both men expressed unwavering support for mediation, they agree the process is not perfect. For example, Young says he gets frustrated when attorneys and their clients expect mediators to have “magical powers. Mediators are not Jedi-Masters. We have no magic wand. Lawyers expect I will perform magic to break impasses, but mediators” do not perform miracles.
Moreover, lawyers and their clients need to appreciate the goals of ADR and enter into it with an open mind. Otherwise, it is a practice in futility, Dreitler says.
“If they (parties) are simply trying to split the baby, then it can be a colossal waste of time. And, the client needs to also be wanting to settle and not expect to get everything,” he concludes.
Choosing the right mediator is also paramount to a satisfying ADR experience. “The key concept is a mediator with direct, or, close to it, expertise in the area at the heart of a dispute,” Young says.
While Young is a staunch ADR advocate, he notes the time must be right in the life of a dispute for mediation to have a chance at success. And how can a lawyer know when a matter has reached that point?
Young puts the onus directly on lawyers. The attorney, he says, “must perform some amount of preparation and factual development” beyond what the client has told them. That due diligence is imperative on the attorney’s part to ensure they uncover all pertinent facts, not just the ones the client has shared. Only then can an attorney assist his or her client in making “a rational and informed settlement decision,” he says.
Tami Kamin Meyer is an Ohio attorney and writer. She is the Marketing Chair of the American Society of Journalists and Authors.