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Mediate.com

Legal Client Retention Through Mediation

by Jon Linden
June 2010 Jon Linden

Clients virtually always eschew the payment of legal fees. In most cases, the use of legal services does not result in a remunerative return. Legal services are usually viewed as a necessary evil of life or a cost of doing business. Some people have even become attorney averse and will avoid the use of lawyers by almost any means, except when required by law or when the situation is so dire that it cannot be avoided. Since this attitude is so pervasive in American society, it behooves attorneys to attempt to do whatever they can to make the experience of the client worthwhile in any way possible. One legal process that seems to be perceived by clients as positive is Mediation.

Most people in the United States have not personally experienced a Mediation. In many States, Mediation is presumptive by the court system and is mandated for certain types of cases. Even with that reality, the majority of people have not been in a situation to actually be a party to a Mediation. Yet Mediation is an opportunity for the attorney. It is so beneficial for attorneys that it is difficult to understand why it is not utilized by attorneys more than it is; yet it is understandable, in light of the perspective that Mediation results in lower legal fee generation for the attorney because the case settles sooner and with less acrimony.

The opportunity Mediation offers is the central theme that drives this article. Mediation allows the client a number of positive experiences and these positive experiences accrue mostly to the attorney’s benefit. These experiences will be reviewed in the following paragraphs, but additionally what will be presented is the impact of these positive experiences on the client and how they lead the client to become and remain a repeat customer of the attorney who successfully leads him or her through a Mediation which results in a mutually acceptable solution to the problem. These benefits elucidated here will illustrate the high level of value that Mediation provides to attorneys, as a method of dispute resolution for their client.

What then does the process of Mediation bring to the client/party in dispute? Firstly, it brings most of the time, a mutually acceptable solution to the problem. Why is this result so important to the client/party? There is one main and superlative answer to why this result is so important and so satisfying to the party, and the more experienced the party is in legal matters, the more this reason takes on importance to him. Judges and Juries are notoriously unpredictable! For this reason, parties see going to court for a resolution to be the riskiest possible manner to resolve their problem. Most people, even if they have not experienced the court process, are familiar with the saying “When you go to court, both parties lose.” That is a virtual truism. Because of the considerations that are taken into account on any particular case, no one can predict with high levels of accuracy what will come as a decision from a court. Most of the time, that result is not satisfying to any of the parties involved and they all leave the process with disgust and dissatisfaction. Much of this dissatisfaction can be transferred to the party’s attorney, particularly when they receive the bill and have to pay money for what was not the conclusion they wanted or even the opposite of the conclusion they wanted. Mediation offers a high potential for the avoidance of this dissatisfaction. By making the party responsible for the resolution decision, the party himself is accountable for the result of the mediation. There is no Judge, Jury, Arbitrator or even attorney for which the party can place blame. If the proposed solution of the Mediation is not satisfactory to the party, they should not accept it. Mediation is defined by a process of seeking a mutually acceptable agreement to resolve the problem. Therefore, the party is responsible for the acceptability of a proposed resolution. Therefore, the vast majority of Mediated solutions are acceptable to the parties even after they have thought about it and considered their optimum solution and their BATNA (best alternative to a negotiated agreement).

Secondly, the party in a Mediation is afforded an up close and personal view of his attorney in action. The importance of this picture of the attorney in action right in front of the client’s eyes cannot be stressed enough. This process is the ultimate opportunity for the attorney to show their client just how good they are and how they work for the client’s interests. Mediation is all about the parties interests. Mediation allows the party/client to evaluate the work of their attorney through the entire process, with input from the client himself. Thus, an opportunity for the client to participate, state their needs and interests and then see them incorporated in the final resolution by their attorney during the process of Mediation. This is so rare that any experienced legal client knows they are witnessing the opportunity of a lifetime in terms of a court case. Usually in court, the party does not get to say anything at all. This banishment to silent suffering is again very much addressed in the Mediation forum and depending on the style of the Mediator; the parties can be more or less directly solicited by the Mediator and co-opted into the process. If the attorney is aware of this fortuitous situation to shine in front of their client and properly takes advantage of it, the attorney can almost assuredly secure their position as the best source for the client to have used for the resolution of this legal matter and therefore by deductive reasoning, the best source for the resolution of future matters.

Nothing can be more convincing to a client than to walk into a Mediation with very little understanding of the process and have their attorney steer them to an acceptable resolution. Often parties express true amazement after they have come out of a successful mediation. The experience, instead of being dismissive as is the court experience, is engaging and participatory. The party is made to feel like he is an important part of the solution. In Mediation, the party truly is an important part of the resolution. Knowing these facts about the perspective of the client in a Mediation gives the attorney the ultimate tool for showing the client why his lawyer is the right attorney for the client and why he deserves to have all the business for which the client needs professional legal assistance in the future.

Thirdly, there is the element of cost. Again here the experience of the client with respect to the cost of legal matters is highly influential in their ability to establish the level of reward that comes from Mediation as a technique of resolution and the very high return in actual dollars that is generated from a successfully Mediated case. For the most part, Mediation is far less expensive than would be the cost of litigating the matter in some other forum, even if it be Arbitration. Mediation allows for less lengthy preparation and more on the scene input by the client. The time element of Mediation is to collapse the process usually into one to four Mediation sessions and not to endless hours of sitting in a courtroom waiting as the drudgery of the process plays out, consuming the party’s time and money. Also, Mediation for the most part can be done at the convenience of the client and not the convenience of the court. These areas are where the client is most likely to feel the tangible benefit of the process.

The strategy of using Mediation is where the client has the best opportunity to see that his attorney actually is concerned with the capital outlay of his client and has chosen a route to resolution that shows their attorney’s concern for saving client’s funds. If the participatory process of Mediation is the number one area where the client gets to see the value of his attorney and assign a benefit to the money they pay to the attorney, certainly the reduction of the total cost of the process runs a very competitive number 2 position in importance in the client’s mind. It is often heard that a party to a successful Mediation, whether the one to pay or the one to receive, is heard to note that his attorney’s influence to choose Mediation as the method of resolution was a highly valuable decision and contained the cost of the process of resolution.

The above three areas are truly the keys to customer retention through mediation for an attorney. They are as follows:

1) Client’s Control Over Outcome
2) Client’s Participation In Resolution
3) Client’s Cost Containment

As a client observing these three factors, a successful Mediation gives the client almost total confidence in their attorney and imprints in the client’s mind the reasons for always choosing this attorney for legal representation. By having awareness of these factors, attorneys can take advantage of the benefits of Mediation. In doing so, they bring their clients from a position of begrudging dissatisfaction to one of participatory pleasure. In so doing the attorney illustrates right in front of their client’s eyes the reasons why their choice of attorney was a good and positive decision and why they should again choose the same attorney in the future. Therefore, Mediation affords attorneys the best of all possible worlds and should be taken advantage of whenever possible to resolve their clients legal issues. If done well, Mediation will secure their place in their client’s estimation, as the best and most concerned representational legal experience they have ever had. Mediation means ipso facto, customer satisfaction and retention.

Biography


Jon Linden is a Mediator, Trainer and Business Consultant. He holds an BS in biology and an MBA, both from Lehigh University in Bethlehem, PA. Jon spent 20 years in the Food Service Distribution business, where he was the COO and Sr. V-P of a Distribution Center of a major Fortune 500 company in the New York Metropolitan area, before becoming an independent consultant and Mediator. His responsibilities included Human Resources, Labor Relations and many other functions. He was the chairman of the company internal Ethics Committee for 6 years. Jon is a contract mediator for the Federal Equal Employment Opportunity Commission (EEOC) and mediates for the Superior Court system of the State of New Jersey, as well as for private clients. He is the President and Founder of Proactive Intervention, L.L.C. and an Accredited Professional Mediator (APM) for Civil/Commercial Mediation by the New Jersey Association of Professional Mediators.



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Website: www.mediate.com/proactive

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