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by Joe Markowitz
September 2013

Mediation's Place by Joe Markowitz

Joe Markowitz

The August issue of the California Bar Journal is devoted to the theme of lawyer as peacemaker. In his introduction, State Bar President Patrick Kelly argues that it is time for lawyers to refocus their efforts from advocacy to more of a problem-solving, peacemaking role. The issue includes a number of articles by prominent ADR practitioners helping to illustrate how lawyers can make this transition.

The State Bar President's recognition that it is time for advocates to work to reduce conflict and solve problems rather than exacerbating conflict and causing problems represents a welcome shift. As Kelly states, to the extent attorneys are able to address the need for problem-solving and peacemaking, that can contribute positively to their ability to serve clients' interests in a positive way, and should also improve the public's perception of the profession.

But this position seems at odds with the traditional view of the lawyer as a zealous advocate for their client's interests. Are lawyers supposed to abandon that traditional ethical duty and start making all nicey-nice with their adversaries, giving up their client's legal rights in the interest of peace? To reconcile these approaches lawyers might keep in mind that while clients all want what they think they are entitled to under the law, they also want to resolve their disputes in a reasonable and cost-effective way. Clients are not generally clamoring to perpetuate conflict at enormous cost and risk to themselves, which is what aggressive litigation sometimes entails.

It might also be helpful to keep in mind that litigation does not automatically require that you make no concessions to your adversary, and ADR does not automatically equate with a conciliatory approach. Rather, there is an important place for vigorous advocacy in ADR practice. Lawyers who are trying to resolve their clients' disputes by negotiation should not be giving away the store. They should be trying to obtain a favorable result for their client, just as they do in litigation. The difference is that advocacy in negotiation must influence the opposing party rather than persuade a judge. There is also an important place for peacemaking and problem-solving in litigation. A lawyer who fights at every step of the way in conducting a lawsuit instead of treating the lawsuit as a series of negotiations is only going to antagonize his adversary, increase costs for his own client, and make the case more difficult to resolve.

Lawyers can be vigorous advocates and problem-solving peacemakers at the same time; and regardless of whether they are pursuing conflict resolution in a public forum or a private dispute-resolution mechanism. Keeping the client's real interests in mind at all times--which always includes a range of interests from maximizing recovery or minimizing exposure to resolving a conflict in a reasonable amount of time at a reasonable cost, and sometimes even repairing a damaged relationship with an opponent--helps balance the lawyer's dual roles as both advocate and peacemaker.


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   

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