The case for creating a mediation department at your firm

Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.com

The Case For Creating A Mediation Department At Your Firm

By Dennis Klein November 14, 2017, 5:21 PM EST It is commonplace for law firms, especially large law firms, to have either appellate specialists or a separate appellate department. These lawyers either work with the litigation department when a case reaches the appellate stage, or in certain instances, assume the handling of the case for appellate briefing and argument. In recent years, substantial bonuses have been paid to appellate clerks to join these divisions. It is routine, prior to argument, for the appellate specialists to conduct moot court arguments.

In contrast, while most law firm websites tout mediation experience and have alternative dispute resolution practices that tend to focus on arbitration, no major Dennis Klein law firm has a dedicated mediation department, and few have mediation specialists to provide a function similar to the appellate experts. Mediation experts do not work with litigators prior to mediation. In 36 years of practice, I have never encountered a mediation moot court. In fact, preparation for mediation is relatively scant, yet consulting with a mediation specialist ahead of time could result in a more favorable resolution.

This article sets out the need for mediation experts in law firms and the necessity of establishing some form of a mediation group in law firms, especially larger practices. There are at a minimum four reasons supporting the need for the specialty: 1) The volume of mediation in litigation justifies applying law firm resources to this specialty; 2) The skill set utilized in mediation is substantially different than either a motions practice or an appellate argument; 3) The trend toward expertise and specialists in every aspect of the law mandates taking advantage of expertise in mediation; and 4) Client relations would benefit from knowing that law firms are working to achieve an edge in litigation with an eye toward mediation as a cost-effective means to resolve business disputes.

Volume of Mediation The volume of cases sent to mediation, either voluntarily or through the direction of the court, far exceeds the number of cases that ultimately are resolved through appeal. Many judges require litigants to attempt mediation before allowing the case to proceed to trial. Moreover, cases are mediated at various stages of the litigation process, from presuit to the appellate stage. Even cases in arbitration are mediated. Only in a substantially small number of cases are litigants willing to allow a decision maker to render a verdict rather than take control of the cases through mediation. Few significant business

disputes go to trial, and the courts are utilizing their powers, whenever possible, to encourage mediation.

The Mediation Skill Set Appellate lawyers work with litigators to prepare cases for resolution at the appellate stages. In some instances, the Firm’s appellate lawyers take over the case completely and argue appeals. It is not unusual for clients to retain law firms with appellate experience to assist the trial lawyers on appeal.

Even within the government or corporations, litigation is frequently overseen by appellate divisions.

The skill set of appellate lawyers is certainly unique, and such expertise is beneficial to the handling of litigation. Nonetheless, general litigation skills in handling motions, especially complex summary judgment arguments, are not distinctly different from an appeal. The goal at both stages is to convince a decision maker or decision makers that your argument merits a resolution in your favor. In both instances, the litigator is attempting to “win” the dispute.

The skill set needed in mediation is substantially different. No one wins mediation; a “good settlement” is one where both parties feel that they have reached a “fair compromise.” There is no decision maker, but instead a facilitator who attempts to bridge monetary gaps by understanding the issues that need to be addressed to resolve the case. Moreover, mediation involves substantial creativity and “thinking outside the box” by both the litigants and the mediator. Frequently, disputes are resolved by applying variables other than simply reaching a monetary solution. For example, the ongoing business relationship is frequently an important variable in resolving a dispute. In many business disputes compromises are reached with a primary factor being a continuing (or even expanding) relationship between the parties.

Moreover, in contrast to an appeal, which occurs at the end of a case without strategic considerations, determining when to mediate a case is an extremely important strategic decision. Many factors (e.g., legal costs, time value of money, business interruption, risk, adverse publicity, insurance considerations, etc.) come into play in determining when to mediate and the strategy utilized in mediation. An experienced mediation expert will also better understand which issues should be mediated first to potentially narrow the scope of subsequent mediations or litigation.

Growing Trend Toward Expertise in Litigation Clearly, there is a trend toward specialization in litigation. Clients look for expertise in subject matter, or with governmental experience (e.g., the U.S. Securities and Exchange Commission, trade, product liability etc.), in hiring attorneys. As mentioned, clients will hire separate firms with appellate expertise in certain instances. More and more “boutique” practices are thriving. However, law firms do not tout mediation expertise. Very little preparation is typically given to mediation. Moot mediations are a nonoccurrence. Yet, the value of reaching a good result in mediation can have tremendous impact in narrowing the remaining issues to be litigated or resolving the dispute entirely. Moreover, a variety of factors that come into play in mediation would be greatly enhanced by having attorneys with mediation expertise available.

Obviously, the timing of mediation and the selection of a mediator are important. But many other factors also contribute to whether the “game plan” of the mediation is a success: Location? Premediation briefs? The use or non-use of opening statements? Who from the client attends? Who speaks? What role does each party representative play? What is the opening number? What are

potential responses? At what point in the process is there substantial movement? What points are most salient? Are non-monetary variables appropriate to be introduced into the negotiations, and at what point? All of these considerations require mediation expertise and clients would benefit greatly by having such a resource available throughout the litigation.

Client Relations Clients would no doubt benefit by having a law firm with a mediation department, or mediation expertise, overseeing litigation. Clients, more than ever, emphasize hiring firms that strive for cost/benefit solutions. Clients scrutinize legal bills more than ever. Budgets are routine, and fixed fee litigation is becoming more popular. A dedicated mediation department signals to clients that the firm will work to efficiently resolve the client’s issues through all available options.

Offering a mediation strategy to clients prior to and throughout litigation is a tremendous asset when seeking a cost/benefit solution. If litigation is viewed as a process, mediation offers different benefits at different points in the process. For example, is presuit mediation appropriate and what are the benefits and detriments? A key factor in undertaking mediation is having it occur at a point in the litigation where factors are favorable toward your client, as opposed to being forced to mediate by the court at a time when adverse events may have occurred. As a result, it is important to decide what steps need to be taken (e.g., an important deposition, the hiring of an expert, filing of a motion, etc.) to put the client in the best position to resolve the dispute through mediation. A presuit mediation strategy and a constant review of the case with an eye toward mediation to narrow the issues or dispose of the case early are essential to achieve a favorable outcome. Mediation expertise provides a vehicle for assuring such a result.

Conclusion Mediation expertise is a “second sister� to appellate lawyers within a law firm. There is a mystique given to appellate lawyers that is not awarded to mediation specialists. While general litigators believe that they have the skill set to negotiate and achieve favorable results in mediation, the trend toward expertise is changing this assumption. Negotiation courses, once reserved for business schools and executive continuing education, are now popular in the law school curriculum. Mediation is now a standalone course in law schools, as opposed to being part of the general civil procedure curriculum (or at most, part of an alternative dispute resolution course that is coupled with arbitration). The next step is for law firms to recognize that mediation expertise is as important, or more important, than a specialized appellate practice.

Dennis S. Klein is the owner of Critical Matter Mediation, a Miami-based boutique alternative dispute resolution firm. For 27 years, he was a litigation partner at Hughes Hubbard & Reed LLP, a Wall Streetbased international law firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.