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Book Review: Short and Happy Guide to Mediation

by Don Philbin
June 2014 A Short & Happy Guide to Mediation

Will Pryor's "Short and Happy Guide to Mediation" is both. You can read it in a sitting, and probably will. But it covers the waterfront too. Pryor teaches the latest negotiation theory, but the focus is decidedly on applying it in practice. The book not only helps neutrals, it helps parties and their advocates better utilize the process to maximize results. Each practice pointer is backed up with a vignette too funny to have been made up. Will is brilliant, but delightfully folksy and very readable.

Not one to dodge tough questions, Will starts with a market analysis – why is mediation so popular, and has that popularity resulted in overuse?

Having been an advocate and served on the trial bench, Will observes that there are tectonic reasons for the explosive growth of mediation. Our courts are increasingly irrelevant to more and more people, either because dockets are too crowded or legal services too expensive. Most people and businesses cannot afford the time and money it takes to obtain access to the "justice" dispensed by our courts. Some perceive our jury trial system to be the most inefficient dispute resolution mechanism ever invented. For many, Will writes, the jury trial represents failure, a breakdown in the way things ought to work. Not only do the wheels of justice turn slowly, and expensively, the verdicts of juries are unpredictable and often less than satisfying. The perception that a jury verdict often results in something less than justice is increasingly common. At times we appear to worship at the altar of "the right to trial by jury," yet most of the civilized world seems to get along just fine without civil juries, according to Pryor. We are regularly reminded that juries have sent innocent defendants to prison, leaving us to wonder about the injustices handed out by our civil courts.

Mediation grows in such an environment. Given these common experiences and perceptions, it is not surprising that an expensive, unpredictable, and inefficient judicial system has provoked the widespread use of a simple and efficient alternative.

Will starts at the beginning by summarizing mediation and its transformation from village elders to a stylized process often including subject matter experts. Mediation, as he describes it, is informal, off-the-record negotiation facilitated by a neutral third-party. In simplicity is beauty. Despite attempts to impose qualifications and rules on mediation, it has done best when parties match the mediator to the fuss and give her wide latitude. But rules are available, and Will summarizes those of the major institutional providers.

A lot of the structural support for mediation springs from the oft-codified "Vegas Rule" – what happens in mediation stays in mediation. Period. Like the Vegas Rule, there are exceptions and Will teases many of them out in the Guide.

Thankfully, he also dives into the joint session paradox at some length. How do joint sessions help the process? Has aggressive advocacy in opening sessions turned the tide against them? Even if we would rather control what is said in mediation – to the point of prerecording it on video – what do the first-time players lose by not having their "day in court?" Are we diluting the message and missing the chance to size-up how real people will perform under stress and facing uncertainty?

Will doesn't just drop these questions at our doorstep and run. He methodically dissects how to prepare for them in advance and execute them in the moment. Mediation preparation is different than trial preparation. Preparation is perennially the number one complaint about mediation – from both advocates and mediators. Yet, there are few guides to improvement. Is the most effective use of an opening to tell the other side they are wrong and here's why? Henry C. Link is credited with saying: “If you wish to make a man your enemy, tell him simply, ‘You are wrong.’ This method works every time.”

Preparation may mean copying the statement of facts from a pleading or motion, but Will explores what will help the mediator help you. What is the backstory – and there is always a backstory. What are the personalities, and how have they reacted to different situations in the relationship or the litigation? Of course, much of this is better left unwritten in the client's file, so Will also advances the pre-mediation call, and in tough cases even more pre-game contact. I always find out more in a 20-minute call with each lawyer before they are in the ring, than I often dig out in the first hours of the mediation.

To his credit, Will also takes on the issue of forcing 10 pounds of potatoes into a five pound sack – trying to force a complicated case into a half day mediation. There are certainly simple distributive dances between parties who will never again cross paths that lend themselves to half-day mediations. But they shouldn't come with three-ring binders full of exhibits and deposition excerpts. That is either a request for a discounted fee or a recipe for impasse.

If we know that it will take parties time to get used to the ever changing altitude, anchoring and adjusting expectations, can we magically move the clock hands to 4:00 and expect a result at 4:30? Even if the repeat players might be able to make the leap, and it's rare that they can, can their clients make the leap with them? Will explains why the dance cannot be short-circuited – we need to watch the Kabuki theatre unfold.

I'm fascinated by the negotiation dance, and its predictability. Will goes through actual examples. With his insight, participants can prepare a course that increases their chances of a deal – on favorable terms.

Will hales from the “mediators are not potted plants school,” as do I. Parties should self-determine the process, and selecting the right mediator for the particular fuss is a major way to do so. But we do them no favors by letting the moment pass without challenging naturally overly optimistic assessments. We don't have to jeopardize our credibility by telling them the answer – if we knew the outcome with high certainty, we should move to litigation finance. But Will points out that we ought to ask how many times out of 10 or 100 a particular outcome might result. Better yet, ask them for the likely range of outcomes – a high, medium, low, and zero result. Whether the percentages later attached to each outcome scenario bear any relation to reality, the exercise often lights bulbs – you mean I don't get the best outcome every time I pull the lever? That gives everyone something to do while we're in the other room.

Will also takes on another sacred cow – whether mediation is best done on the courthouse steps or is planned at a point where costs can be averted. Planned Early Dispute Resolution (PEDR) is a hot topic -- the ABA PEDR Task Force, of which I’m a member, recently released its User Guide. Pryor advances the notion of PEDR by observing that even if the settlement rate is lower early on, it is a worthwhile effort. Even a 50% settlement rate would yield cost savings in the six or seven figures half of the time. That’s preferable to a higher settlement rate after those transaction costs are incurred. So a 50% settlement rate that averts huge litigation costs is worth the extra cost of the early mediation, even if half of the cases need to be re-mediated after incurring a large part of the costs through discovery. In fact, a settlement rate well below 10% early on would more than yield enough in averted cost savings to pay for PEDR. But we know the settlement rate early on is much higher than that, so it should be a low risk, high reward proposition in all but the smallest cases.

As for settlement rates, Will observes that physical participation by the decision-makers is one of the biggest drivers of success. Of course, there are statutes and rules dealing with "authority," but the fact remains that it's hard to distill a three-hour movie into a five minute conversation with someone who didn't see it and is multitasking while playing catchup remotely.

Next to preparation, the other big complaint about mediators is persistence. Will again nudges neutrals to be less chatty and more persistent. Users love the tenacious mediator who never quits. Will advises calling 30, 60, even 90 days after impasse to close and regales us with stories of the mediation that came back to life because of such a call – both sides wanted to rejoin the issue but neither wanted to show weakness by saying so.
Will is unabashedly pro-mediation. He loves it and it shows. He is also objective enough to see warts when they grow. He addresses the crazy aunt in the attic – "too much mediation." Will observes that a byproduct of the amazing success of mediation is over-reliance. Lawyers don't meaningfully discuss settlement for fear of hemming themselves in at a later mediation. Perhaps unaided negotiation skills have even suffered due to the assistive nature of mediation. It can also be overused as a docket control mechanism for busy courts. Opt-out systems have been tremendously successful because neither side has to show weakness by attempting to opt-in to mediation. It's the default, and that increases use and settlement. But Will calls out judges who repeatedly order the same case to mediation, not once or twice, but five or six times in an effort to suggest that you'll never get to trial so you better work it out.

In the end, the market renders its assessment. Mediation is popular not because it is flawless, but because it is better than the alternative – the slow and expensive "justice" dispensed by courts and virtually immune arbitration awards. As usual, he puts it best:

My observations about recent developments in the practice of mediation may sound a similar note [to Yogi Berra observing that "No one goes to that restaurant anymore -- it's too crowded]. If the use of mediation is so flawed, then why is the practice of mediation expanding and its overall popularity increasing?

Because it works. It is a bit like asking, "what's so great about being alive given that we have wars, and disease, and politicians? The answer is: consider the alternative. Mediation works, but [Will] thinks we can make the way we practice mediation better. Here's how.

This is an easy read provoking deep thought about the foundations of mediation, how to best utilize and perform it, how to effectively prepare for success, and how to execute a successful strategy in the moment.

"A Short and Happy Guide to Mediation" lives up to its name. Stop what you're doing and curl up with a copy before your next mediation. You'll be glad you did.  

About Will Pryor

Will Pryor is a Distinguished Teaching Professor, and Homer Mitchell Professor of Insurance and Commercial Law, at Southern Methodist University. Will was born in Arkansas, grew up in Dallas, and attended public schools in Dallas and Richmond, Virginia , before his opportunity to serve during his final two years of high school as a congressional page in the United States House of Representatives. During Will's senior year, at the height of the "Watergate era", he served as the Speaker's Page, the personal page to the Speaker of the House of Representatives (Honorable Carl Albert, Dem.-Oklahoma). As an undergraduate at Yale University , Will was both the Chairman of the student government organization, the Yale College Council, and Captain of the varsity baseball team. Will is a Presbyterian Church elder, and a former Trustee of the Winston School of Dallas.

Biography


Don Philbin, J.D., M.B.A., LL.M., is an AV-rated attorney-mediator, adjunct professor of law, curator of www.ADRtoolbox.com, and president of Picture It Settled®. Picture It Settled® is Moneyball for negotiation. Our behavioral software has learned negotiating patterns from parties to thousands of litigated cases in a wide variety of jurisdictions and claim types. It uses that intelligence to make accurate predictions of where a negotiating round is headed in time for parties to act on that intelligence using the program’s planning tools. The planning tools allow users to fine-tune their target settlement and project what impact a particular move might have on the round before making it. The result is more settlements on more advantageous terms.

Don was named the 2014 “Lawyer of the Year” for Mediation in San Antonio by Best Lawyers®, was recognized as the 2011 Outstanding Lawyer in Mediation by the San Antonio Business Journal, is one of seven Texas mediators listed in The International Who’s Who of Commercial Mediation, and is repeatedly listed in:The Best Lawyers in America, Texas Super Lawyers, The Best Lawyers in San Antonio, and the U.S. News and Best Lawyers “Best Law Firm” survey. He is an elected fellow of the International Academy of Mediators, the American Academy of Civil Trial Mediators, and the Texas Academy of Distinguished Neutrals.

 



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