by Armin Kuder:
“Mediation Matters” is the deliberately ambiguous title D.C. area mediator Carl D. Schneider, Ph.D. (www.mediate.com) uses to brand his mediation training. Having trained under Dr. Schneider, I recently took my skills as a mediator to the University of Maryland Carey School of Law to assist in a regional competition titled “Representation in Mediation” hosted by the Law School under the organizing sponsoring of the American Bar Association’s Section of Dispute Resolution. I learned that, unlike when I was in law school, mediation now does matter.
In order to preserve the purity of the judging of the participants, judges and mediators did not know the identities of the law schools sending the two two-person teams to the competition. It became clear that the students were articulate, capable, and committed to resolving the disputes described in the program materials. As one of the mediators, I observed that these neophyte advocates had both trained and prepared to advocate for their clients in a forum quite different from a courtroom.
Alternative Dispute Resolution (popularly “ADR”) has become an essential component of court systems’ efforts to manage their caseloads under pressure from tight budgets. There is simply not enough judges’ time to try all cases, so courts are requiring litigants to use alternatives. Many practicing attorneys have taken courses – curricular or non-curricular – in trial practice, but very few have had comparable training in ADR advocacy. I have observed attorneys and clients appear for ADR seemingly without a plan as to which will speak, what might be offered to meet the needs of the opposing party, and what the opposing party might be willing to accede. In some cases, essential information has not been developed or shared.
The Representation in Mediation competition emphasized for me that mediation does matter. It is being recognized in leading law schools. It is being embraced by bright, talented prospective lawyers. And, importantly, there is a growing body of knowledge of what makes an effective advocate in negotiations and mediation. The original work of Urey & Fischer in their seminal “Getting to Yes” has been augmented by considerable research and elaboration.
Many more disputes are decided outside of a court than inside, and mediation, with a skilled mediator and advocates skilled in mediation is one of the best ways to achieve results that can last, because the parties have determined their own result and accepted it as fair, increasing the likelihood they will live by their bargain.
The message from my experience with the competition is clear. Clients should take mediation seriously. When offered the opportunity to mediate, embrace it, plan and prepare with your attorney. Recognize how it matters.