ETHICAL AND PRACTICAL CONSIDERATIONS IN CHOOSING WHETHER AND HOW TO MEDIATE

There are a number of considerations for an attorney to make in deciding if, when and why to mediate. The two most common considerations, from an ethical and practical point of view are the ethical duties to save client costs and improved client satisfaction.

A. Is There a Duty to Attempt ADR Processes?

This question is often posed by mediators and it has a grain of truth in it. There is an ethical consideration in the use and review of the mediation process. While it is often overplayed, it bears consideration in every case.

The public consideration of the "ethical duty" began with an unsettling trend that attempted to portray the failure to use, or to attempt to use, ADR processes as a breach of the professional standard of care had by an attorney. The issue comes up often during seminar speeches and has spread from innocuous statements in response to questions into a current "hot issue" in some states.

The (perhaps overly simplistic) argument goes as follows:

"ADR methods, and mediation in specific, are more likely than not to settle cases at the cost and risk equivalent of a deposition.

If a bad result follows at trial (even just the cost, expense and risk of trial), it is more likely than not that the result could have been avoided by engaging in mediation.

The failure to attempt to avoid the bad result by engaging in mediation thus had the foreseeable expense or bad result occurring at trial. After all, if a summary judgment motion had an 80% chance of success, wouldn't you make the motion -- or at least advise your client about the option?"

It is an interesting argument. However, negotiation is the oldest and the original ADR method. Modern changes in practice are really changes in the use and application of negotiation enhancement techniques and other ADR methods, such as mediation, not a replacement of negotiation and all other ADR methods and techniques with mediation.

The choice of which negotiation enhancement tools to use (including which ADR method, if any) -- and when to use them -- depends dramatically on the case at hand. After all, binding, non-appealable arbitration resolves almost 100% of the cases set before it. No one would consider the failure to use binding arbitration an act of malpractice and entering into it at the wrong time or with the wrong case is at best extremely foolish.

However, the overall use of negotiation techniques and the appropriate time and place for the use of them is an appropriate ethical consideration as is the possibility of resolving an issue by mediation. The savings to the client consist not only of financial, but of emotional and social resources.

Attorneys owe their clients a duty to consider such things in the conduct of their cases.

B. Improving Client Satisfaction

In addition to the ethical considerations, there are several very practical elements in mediation that improve client satisfaction and client relations. These elements are worth considering.

First, speed.

A client goes to a lawyer to find someone who knows how to get something done. Implied in "getting something done" is getting something done now. Clients are generally happiest when disputes are resolved sooner than later.

When successful, mediation resolves disputes much more quickly than will the process of litigation combined with negotiation. Savings of time generally also result in savings of money and a reduction in risk.

Proper use of the mediation process can improve client relations by providing immediate resolutions (of some cases) for the client.

Second, understanding.

The American Bar Association funded Negotiations study initially focused on "successful" negotiations and ignored those cases that went to trial.

Follow-up research indicated that the issue of which cases were tried deserved further study. In that study it was found that in 60% of the cases that went to trial, the attorneys had reached a settlement in which at least one client was unwilling to join.

The mediation process spends considerable time bringing the client along in the process of the negotiation and in evaluation and understanding of the positions and the case. As a result, following mediation there is a higher level of client understanding and agreement with the negotiated results or the failure to negotiate results. This leads to an increase in client satisfaction, cooperation and agreement to settlement.

Even if no settlement of the claim is reached, engaging in mediation increases client understanding and satisfaction. If the case fails to settle and goes to trial, mediation is a positive influence on client perceptions as to what the attorney is doing. Note that many ADR procedures are designed to aid parties and their attorneys first to evaluate and educate with settlement only as a side effect.

Third, preparation.

ADR methods, including mediation, are useful when settlement is not anticipated. In the tough or risky case, mediation is an excellent tool for creating and preserving a client's acceptance and support of the attorney regardless of the outcome at trial. As a client relations tool, especially in a case that "must be tried" (and that will be tried and that actually is tried) because of the issues, nature, difficulty or risks of the case, ADR is very important. Where client satisfaction is important, mediation is an useful tool.

Fourth, Control.

A study of federal courts and court ordered ADR in those courts reflected that clients who were sent to the ADR track actually felt that they had more control than those who remained in the conventional litigation track.

C. Conclusion

Mediation and other ADR procedures deserve consideration in every case from both an ethical and a client satisfaction regard. While not every case should (or could) be mediated, every case can be considered for appropriate treatment, from discovery planning to ADR elements. In so doing attorneys can serve their clients and themselves.

This Website is by Stephen R. Marsh
Contact Information at:
http://adrr.com/smarsh/