Mediation: What's in it for lawyers?
I recall a few years back taking an advanced commercial mediation course. A room full of middle-aged litigators like myself were asked by Gordon Sloan to ponder the question: "Why are you taking this course?" Answer after answer reflected my own thoughts:
" … because there has to be a better way of solving my clients' problems. In my days as counsel, I've seen my clients experience too many negative consequences from litigation."
" … because it's hard to maintain my self-image as the knight on the white charger when I cost my clients so much that I become part of their problem."
" … because I'm tired of continual skirmishes in court. I'd like some way of doing my job that would be more predictable, manageable and less confrontational."
Over the three days of the course, I started thinking about the economic implications of mediation for lawyers. I had taken Economics 101. I knew all about supply and demand curves. It struck me as I surveyed the room full of aspiring lawyer-mediators: there's a problem here; the supply is greater than the demand. It occurred to me that I would have to create the demand for my own services if I wanted to become a lawyer-mediator.
Now a few years later, having listened to mediation clients, observing how mediation works and practising in the field, I have come to a new conclusion. Consumer demand for mediation is already here, and it is only going to increase. That should be a comforting thought for the some 500 B.C. lawyers who have each already invested at least 40 hours in mediation training. But the question remains: Will we get our share of the action?
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It may not seem fitting to begin a series of Benchers' Bulletin articles devoted to ethical and practice issues in mediation by posing the question: "What's in it for lawyers?" But lawyers understandably want to see a definite benefit, first to their clients but also to themselves before embarking down a new path, and certainly before struggling with the unique ethical and practice situations encountered along the way.
In my view, by making mediation an integral tool in legal problem-solving for clients, lawyers will be increasing consumer demand for their services — either as lawyer-mediators or as legal counsel supporting their clients who participate in mediation.
An assumption exists among many people and businesses that hiring a lawyer to solve a legal dispute makes going to court more likely. Frequently, these potential clients don't want to go to court. Many of them cannot afford it. Even those with money enough to enter the legal jousts are increasingly of the view that there are more cost-effective ways to resolve their disputes. If people equate hiring a lawyer with preparing for and going to court, many will avoid lawyers altogether in favour of other providers to resolve their legal disputes. This is not a market lawyers can afford to lose.
If lawyers support and assist clients in choosing mediation as an alternative to litigation — and are seen as committed to doing so — there is the potential for lawyers to increase business. Both client and lawyer win financially from successful mediation. For the lawyer who is counsel to clients in mediation, it is true there will often be fewer billable hours per file than if the same matter went to trial. But there is also new opportunity for more clients (including those who might never before have stepped inside a lawyer's office), greater file inventory and recoverable fees.
Even clients who retain lawyers to pursue litigation sometimes settle for less than they may be entitled to, or even withdraw completely rather than risk the costs of a lengthy trial and an unpredictable outcome. If the alternative of a mediated solution was offered to those clients with no assumption of risk other than the cost of the mediation, these clients might well continue to retain the lawyer to help effect a good mediated result. If lawyers are involved in the mediation process, they may even increase their billable work on a file.
Happy clients are good for business. If mediation is successful, lawyers are likely to have more satisfied and better-served clients. A recent survey of over 2,000 participants in the Small Claims Court compulsory mediation pilot project found that, even when parties had not solved any or all issues in mediation, they reported high satisfaction with the conduct of the mediation. For those participants who had solved some or all of the issues in their mediation, 94% said they would choose to mediate again. Interestingly, even for those participants who had resolved no issues in the mediation, 84% would still choose to mediate a future dispute.
There is more to this than the cost of litigation. People choose mediation because their trust in and satisfaction with imposed judicial resolutions has declined and because they want more control over the outcome.
There is nothing to suggest this shift is because judges are perceived to be less "just" than in bygone years. Rather, the desire to choose one's own solutions reflects the value of self-determination, a value that is fundamental in our pluralistic democracy. Because of the diversity in our society, it is no longer safe to assume a commonly held moral approach to what constitutes "justice" or a commonly held faith that sound rational argument will lead us to the best resolution of a controversy. In the face of moral diversity, what binds citizens, despite different assumptions and perspectives, is a network of agreements. What legitimizes those agreements is not that their content has been arrived at by learned rational argument or is consistent with commonly held views of what is just, but that they have the consent of the parties who have had opportunity to assess their own interests.
Mediation to resolve legal disputes is a method of problem-solving that relies on consent of the parties. For this reason, it is more attuned to self-determination than is a trial resulting in a solution imposed by a judge.
Lawyers reading this far may well be asking themselves: "So what's new? Negotiation has always been part of what a good lawyer does for a client. Most court cases settle without the need of mediation." But there is a difference. Mediation offers something different than the traditional negotiation between lawyers, often occurring on the proverbial "courthouse steps." Mediation involves the client directly in the process of negotiating. Clients themselves define the issues, articulate their interests, suggest solutions and make immediate decisions about resolutions that can be implemented quickly. Although this makes lawyers understandably nervous for their clients, it does have the effect of making mediation much more attuned to clients' own choices than a negotiation process controlled by lawyers.
Is this bad news for lawyers? I don't think so. If lawyers take the time to understand the motivation of clients and the importance of mediation, there are many reasons to see mediation as an opportunity, not a threat.
Lawyers add value to mediation for their clients and there are many opportunities to expand the client base. In many mediations, lawyers are present to support clients. Even when not present at the mediation, lawyers have a role to play in preparing their clients and advising them before, during and after. Lawyers, after all, are experienced negotiators. They know how to clarify the issues. They understand the legal aspects of clients' interests. They know how to articulate their goals persuasively, taking into account the strength of other perspectives. They are well qualified to make risk assessments. They can warn clients of the potential downside of proposed agreements. They know how to draft written agreements that not only incorporate the spirit of the consent, but that have sufficient detail to avoid future problems.
For litigators who may not yet see mediation as an integral part of their practice, there is another, more immediate answer to the question: What's in it for lawyers? Mediation is an option to move along the dog files — those that are not going anywhere and that bring out all of a lawyer's capacity to procrastinate. Place them in the lap of a mediator and see what happens. At least, you'll be doing something about them. And you never know. Mediation does from time to time work miracles.
This is the first in a series of guest articles on opportunities in alternative dispute resolution and the ethical and practice challenges for the profession in this field.
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*Jane B. Morley, Q.C. has practised law in Victoria for more than 20 years with a focus on employment, family and personal injury law. She is currently a full-time mediator and adjudicator, a Chartered Mediator with the Arbitration and Mediation Institute of Canada and a member of the British Columbia Mediator Roster. Her professional service includes serving as Chair of the Law Foundation of British Columbia (1998/1999), Chair of the Jericho Individual Compensation Panel and a public representative on the Council and Executive of the College of Physicians and & Surgeons.