There is one rule in mediation, according to Seattle attorney Stew Cogan: There are no rules.
Just when both sides finally agree to a complicated financial settlement, someone will demand a deceased relative’s Star Trek plate collection, the portrait of an uncle that can’t be divided among siblings, a potted plant. Then it’s back to Square 1.
“I had a case all about arriving at a settlement in which neither party would look bad to their neighbors in their Eastern Washington farm community,” says former state Supreme Court Justice Faith Ireland with a laugh. She launched Just Results after retiring from the bench in 2005.
“No matter how many zeroes are involved, the human element never goes away,” observes attorney Thomas J. Brewer.
Alternative dispute resolution (ADR) includes mediation, bringing parties together to settle a dispute; and arbitration, where an agreed-upon attorney acts as judge and makes a binding decision.
ADR lawyers are reticent about details of their cases but agree that, even when large sums are involved, people end up fighting over the small stuff.
Human nature is always the wild card. “If you don’t have your antenna up,” says Ireland, “you can think it’s just about dollars and cents—and seldom is it only about dollars and cents.”
Greg Bertram, with Bertram Dispute Resolution, agrees: “It’s performance art, really. You don’t do it artificially, but you must be aware of who the players are, what the apparent and latent issues are.”
It helps to be able to turn on a dime. For many attorneys, this freewheeling process is irresistible, with its direct human contact, speedy settlements and wide-ranging subject matter, outside the strictures of the courtroom. “A lot of lawyers regard [ADR] as a great job. The reason for that is, it is a great job,” says Cogan.
After all, even lawyers can get sick of cases that drag on for years. “As any litigator will tell you,” says Carolyn Cairns with Stokes Lawrence, “you go to bed with a case every night and wake up with it every morning.” But with ADR, she points out, “You’re helping parties come to a resolution they can live with, then move on.”
Litigation is expensive, cumbersome and sometimes unpleasant. “Let’s face it,” says Cairns, “the outcome is a crap-shoot.”
Ireland, who served as a judge for 21 years, says being in the rarefied stratum of the appellate court was intellectually satisfying, but she’s now fascinated by direct contact with those involved in disputes. “Mediation is about knowing people, not just about knowing the law,” she says.
Some attorneys say ADR tends to level the playing field. In litigation, one person is often pitted against a large corporation that can easily foot the bill for an extended trial. Bertram says, “On a tough case to defend, delaying by itself can be a fiendishly clever strategy.”
In mediation, clients have more skin in the game, even though many are unwilling participants ordered into mediation by a judge or contracts they’ve signed. Bertram says, “The self-determination part of mediation benefits clients. They can make a choice rather than have a judge and jury tell them what their rights or the facts are.”
Cairns adds, “Often you can accomplish things important to them [that] they won’t accomplish going to trial—even if they win.”
And of course, costs are much lower. “If litigation goes on for a couple years,” says Ireland, “it’s massively more expensive because it’s always, always [involving] working: depositions, motions, always something going on stirring the pot and raising costs.”
ADR lawyers are increasingly in demand. Where litigants once waited till they were on the courthouse steps to decide to mediate, they have begun opting for it early in the process. Or they avoid a lawsuit altogether—if not because of the cost, then because a contract demands it, a judge requires it or they wish to avoid the courtroom for a variety of personal, legal and financial reasons.
“I love the work and believe in the idea,” says Brewer. Half his practice is international, adding extra legal and cultural layers to the things he must know about. “We offer the users a process that’s an expedited, efficient and fair alternative to bringing their disputes to court.”
Many clients appreciate the anonymity of settling huge cases beneath the public radar—a complaint voiced by critics of mandatory arbitration. Staying out of court means there’s no public record. Files—and lips—are typically sealed with confidentiality agreements.
But in this down economy, mediations are on the upswing: deals going sideways over loss of financing; defaults on deals that no longer pencil out; employees or employers not living up to contractual expectations.
“The vast, vast, majority of cases filed aren’t resolved through trial,” says Cogan. “National trial rates are typically at 2 percent, which means 98 percent of civil cases go away some other way, commonly through mediation.
“It’s a world no one knows much about.” L&P
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