The Explosion of Mediation: An Alternative to Trials

Episode Notes

Transcript

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David A. Hoffman: Mediation creates opportunities to structure future dispute resolution so it does not boil over into litigation.  It creates opportunities for heart to heart conversations that people don’t have very often unless there is sort of a referee to moderate conversation.

Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network.  I’m Craig Williams coming to you from Southern California.  I write a blog named May It Please the Court and have two books out titled “How to Get Sued” and “The Sled”.  While at the beginning of the pandemic, the eruption of COVID cases forced courts across the nation to close their doors and in its place, attorneys, judges and clients opted were possible to participate in virtual proceedings through video platforms but mainly only through telephones.  Over a year later with a backlog of cases now clogging courts and limiting in-person proceedings still attorneys have increasingly turned to the alternative dispute resolution of mediation to reserve their cases.  Today on Lawyer 2 Lawyer, we will take a look at the explosion of mediation during the pandemic.  We’ll also take a look at the push for mediation as an alternative to Trials and what the future holds for jury Trials.  And to do that, we have David A. Hoffman, the founding member of Boston Law Collaborative, LLC where he serves as Mediator, Arbitrator and Collaborative Law Attorney.  He also teaches three courses at Harvard Law School where he is the John H. Watson, Jr. lecturer on law, mediation diversity and dispute resolution and legal profession collaborative law.  David is also on the faculty of Harvard Negotiation Institute.  He teaches a five-day advanced mediation skills course for the program on negotiation at Harvard Law School.  Welcome to the show Attorney David Hoffman.

David A. Hoffman: Thanks.  I appreciate the invitation.

J. Craig Williams: Well we’re really glad to have you.  Can you give us a little bit of background about mediation perhaps even discussing the art of mediation and what that means?

David A. Hoffman: Sure.  So just speaking personally for a moment, my introduction to mediation came from being a litigator and I think that’s how a lot of people find their way to mediation and Craig perhaps you yourself tried that path, I think one of the things that happens to us litigators is we begin to feel frustrated at the inefficiency of litigation as a method of resolving conflict.  Since the vast majority of cases settle, mediation simply provides an opportunity to do that more quickly instead of waiting until you get to the courthouse steps, but it also it is more cost effective and mediation can also provide solutions that can’t be obtained in court so it has a creative element.  So all those things appealed to me as a litigator who is feeling frustrated at cases taking years, literally years, to get to a resolution.

J. Craig Williams: Yeah, I likewise.  I think my longest case is probably 15 years.

David A. Hoffman: Wow.

J. Craig Williams: I do environmental contamination so some of those last forever, and you’re correct, I am in the process of switching from being an active litigator to being an active mediator.  One of the things that I’ve really not talked to anybody about this, I’m curious what your take is on it a lot of people and I think me included during my time as a litigator would evaluate the credentials of the mediator that we were thinking about using and would frequently pick judges my clients were a little bit more comfortable with a judge sometimes I think than a lawyer.  How do you explain the difference to clients mediating with a lawyer as to mediating with a judge?

David A. Hoffman: It’s a really great question, and I’m going to generalize for a moment and then talk about exceptions.  So in general, it’s been my experience that judges, retired judges who serve as mediators tend to be more judgmental.  They tend to be more willing to make a prediction of the outcome of the case and do what we call in our dispute resolution field case evaluation.  Now that’s actually quite a useful service but sometimes it can interfere with the parties coming to a voluntary agreement, so I think that a lot of lawyers choose retired judges as mediators because they want that skill set as a judge being able to make you know a reasonably accurate prediction of what the bell curve of results might look like.  The problem is that some retired judges move to that case evaluation part of the process very quickly.

(00:05:03)

And that really eliminates some of the opportunities in mediation not only for creative solutions but sometimes for reconciliation.  I mediated a case recently by Zoom involving two brothers who are co-owners of a business and there was a real opportunity in that case for the two brothers to do some repair of their relationship and when a retired judge becomes too focused on what would happen in court, sometimes that opportunity is missed.

J. Craig Williams: Well I’m sure you spend a little bit of time on the bench yourself during your career as a lawyer, I’m going to just guess here.

David A. Hoffman: Yes, in a manner of speaking because I’ve served as an arbitrator many times and I kind of like it, it’s very different skill set than being a mediator.  As a mediator, your goal is to help people reach agreement.  As an arbitrator, your job is your, it’s private adjudication and sometimes the opportunity to make a decision, write an opinion, manage a hearing is a very welcome opportunity and a lot of mediators that I know do both.

J. Craig Williams: You mentioned that there’s the opportunity in mediation to do some things, some creative things that aren’t possible in court during litigation when you’re in front of a jury, in front of a judge, making a final decision on your case.  You specifically mentioned maybe as an example the two brothers in the mediation that you mentioned, tell us about what you were able to do to repair that relationship that could not have been done in court.

David A. Hoffman: One of the important tools in mediation is that the mediator can speak with each side separately and often I hear stories and grievances in the private caucus session that I would never hear if we just kept everyone together the whole time.  I think business mediators, commercial mediators over utilize caucusing and turn mediation into nothing but shuttle diplomacy, brokering a deal, and that’s okay that’s efficient the market has a need for that but I think the lost opportunity is to talk with people separately find out what’s on their mind, hear their stories and then using that material, see if you can bring the parties together to have a conversation that might help them not only resolve the case but achieve a greater feeling of peace and resolution with each other and internally.  So I’ve mediated quite a few business breakups involving siblings and I’ve got one right now a business case involving three adult siblings and their mother, and mediation creates opportunities to structure future dispute resolution so it doesn’t boil over into litigation creates opportunities for heart-to-heart conversations that people don’t have very often unless there’s sort of a referee to moderate the conversation.  Also there are creative opportunities in one of my cases, there was a very creative kind of earn out as one brother bought out the other from a business that they co-owned.  So for all those reasons relational reasons and business problem solving, future conflict prevention, mediation creates a wonderful opportunity, it’s not there in arbitration, it’s not there in court and it’s not there in mediation if the mediator is too focused on case evaluation.

J. Craig Williams: Case evaluation is a little bit difficult to do early on in a case at least from my understanding, it’s build the trust first, build your relationship as a mediator with the client and understand like you said the story what really is behind the dispute because yes it’s always about money but there’s always some driving factors that aren’t really the money.  Well, I want to flip over to your TED talk, you did a TED talk back in 2016, lawyers as peacemakers.  Really?  Yes, really.  So it sounds like a fun title.

David A. Hoffman: Thank you.  I was very grateful for the invitation to give a talk and especially since the host university said that I could talk about whatever I wanted to talk about and the idea that lawyers can be peacemakers, an idea that of course we all know Abraham Lincoln espoused, so it’s not like a brand new idea.  I thought it was a wonderful moment to make a decision, it’s a decision I’ve been wrestling with for a long time which is whether to continue doing litigation while on the one hand, while I’m still doing mediation and collaborative law on the other, and I decided that I would use the date of that presentation, that talk April of 2016 as the moment when I would stop taking on litigation cases.  And so for the past five plus years, I haven’t taken on any such cases. 

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My practice is just as robust if not more so.  There’s plenty of demand for problem solvers, that’s my full-time job now.

J. Craig Williams: How long did the transition take from lawyer to mediator?  You have a bright line there in 2016 April, was it as fast to see the switch over? 

David A. Hoffman: Well I decided not to take on new cases that involve litigation but I still had a pipeline of cases that I had to resolve.  I think the last of those cases finally got resolved at the end of 2018, so there was about a year and a half of cases working their way through.  The bigger transition and perhaps the more complicated transition is going from being a litigator full-time to building mediation practice, and for me that was quite incremental.  I was only seven years out of law school when I made the decision to become a mediator and so I was still a pretty newly minted lawyer and I think for very understandable reasons, the lawyers who use mediators, some are looking for retired judges but if they’re looking for a lawyer let’s say it’s a commercial mediation case, they’d prefer someone who has some gray hair, some experience, some years of handling these kinds of cases so that they understand the dynamics.  They can talk the talk you know someone’s saying well we think we’re going to resolve this case on summary judgment they’re dealing with a mediator who knows how hard or easy it might be in that case to get summary judgment.  I also just want to mention as an aside, much mediation is done in arenas where the mediators are not always lawyers.  For example, you mentioned environmental cases, there are a lot of scientifically trained mediators who are not lawyers who do a fantastic job in environmental cases.  There are mental health professionals who do divorce mediation as well as lawyers, I do both family mediation and business mediation, but there are many people specialize.  So while you and I are focusing primarily on the mediation of litigated commercial cases, there’s a whole universe of other cases out there that go to mediation and are resolved successfully there.

J. Craig Williams: Right, that’s a very interesting observation, and it kind of leads me to my next question about you’re an experienced litigator and you’re an experienced mediator, what’s been your perspective on the increase in mediation over time?  I mean it’s this mediation while you say, yes it has gone back in a form of some type of dispute resolution to Abraham Lincoln.  The development of it as we know it today is a little bit more recent. 

David A. Hoffman: It is.  There’s been a resurgence of mediation and actually you can find biblical antecedents for mediation, you can go way way back.  However, in Lincoln’s time, mediation was not really used very much.  People negotiated cases.  They hired lawyers to do that.  I think what’s happened after World War II is that there was an explosion of litigation a growth in the number of lawyers and a simultaneous increase in the availability of pretrial discovery tools.  I think that was a very important factor in making litigation more time consuming, more expensive, more vexatious, more intrusive on businesses and individuals and that was one of the vectors that caused people to start thinking about, “Well what are our dispute resolution options.”  Other vectors that were influential was that the courts were getting jammed up and the judges became more interested in it.  At the 1976 pound conference, about the state of the judiciary, Frank Sander who was my predecessor in teaching the mediation course here at Harvard Law School gave a talk on varieties of dispute resolution and he proposed a multidoor courthouse.  Many courts and judges have adapted the idea that they can perform a triage function and steer cases to mediation where appropriate or maybe arbitration or early neutral case evaluation.  There are a lot of different tools in the dispute resolution toolbox so one factor was litigation becoming more complicated, in other words, the courts becoming more clogged.  And finally, there’s the one Craig that you and I responded to which is as litigators feeling like there’s got to be a better way and so we began seeing more and more lawyers, getting trained in mediation, so just as the demand for mediation was increasing, the supply was also increasing.

(00:15:01)

And then therefore, we see a lot more mediation today than when I became a lawyer in 1984.

J. Craig Williams: One of the obvious reasons to do mediation as opposed to litigation is that there’s a significant cost savings as you pointed out early on, not only cost savings in terms of attorney’s fees and money but also just personal wear and tear on an individual.  I often tell my clients that you’re going to just about become a paralegal during the case because it’ll take that long and you’ll learn enough law that you could probably moonlight as a paralegal.  Where do you see the advantages of mediation compared to litigation beyond just the cost factors, you know the personal wear and tear, the time spent.  Why would someone pick mediation over fighting?  I mean I, let me back up and just that kind of give you a little bit of a personal story.

David A. Hoffman: Please.

J. Craig Williams: As a litigator, I frequently have, I’m sure you’ve had them too clients will stand there and tell me it’s all about the principle that matters.  It’s you know, I have this I’m right, they’re wrong and I want to be vindicated.  And I’ll put two boxes on a piece of paper and all right next to one that says principle and another one says it’s about the money, and I shove it across the table and I say, “Pick one.”  You check a box and tell me it’s about the principle because six months from now after you’ve gotten six big attorney’s fees bills from me, you’re not going to be so adamant that it’s about the principle, it’s more about the money.  Where do you see is the driving factors about people that go to mediation, I’ve always been curious why someone, what convinces people to do to sit down and talk about things.

David A. Hoffman: I think there are two main drivers.  One is that the lawyers are the gatekeepers of business conflict in our society for the most part not exclusively and I think that lawyers are doing a better and better job every year of this triage that I mentioned a moment ago which is to think about what’s the best dispute resolution process, when is the best time to use it and the opportunity that the lawyers realize and the clients might not because the clients might not be repeat players, but the lawyers realize that sometimes people just want to be heard and sometimes an apology can resolve big parts of a case.  We have a saying in the field of mediation that until people feel heard, they won’t listen.  And I think that one of their main objectives is to feel recognized.  Now sometimes they may not get that from the person across the table and indeed if there’s shuttle diplomacy as the primary format for the mediation, they’re not going to get it from the other party and I think that’s a shame, I think that, as I said shuttle diplomacy caucusing is overutilized in a commercial arena, but at least they’ll be heard by the mediator.  People want to have their “day in court”, but the reality is their day in court often doesn’t happen because 95% of cases that are filed get resolved either on dispositive motions or by settlement, huge percentage by settlement, so they never get to actually tell their story to a judge or a jury.  In a mediation, they do.  And unlike court where their desire to be heard is constrained by the rules of evidence and admissibility, in mediation, we hear it all.  And that is for many people a more satisfying experience than the experience of testifying in a courtroom and then having a decision which might be mysterious or unwelcome or half a loaf.  There’s a real opportunity in mediation for joint gains to expand the pie so that even though the pie is going to have to be divided, the slices are bigger and that’s sort of an elementary principle of interest-based bargaining and elementary principle of mediation.  But I see it happening all the time and I’ll give you an example if you’d like, one of my favorite mediation stories.  It wasn’t one of my cases but it involves an airline who is being sued for age discrimination.  They had laid off a bunch of employees, one of them was 63 years old, he was two years shy of his pension investing and he sued the airline claiming that there was age discrimination in the way they picked the employees for the layoffs.  The airline said “No, no we didn’t, by the book, there’s no age discrimination here.”  In the mediation, the mediator asked an important question of the laid off 63-year-old employee.  What will you do with the money if you win your case and he said, “My wife and I are planning to travel, you know, I was going to retire and that’s why I wanted to get to 65 and get my pension.”  So the mediator said, “Well, maybe the airline would be willing to provide you with like a gazillion frequent flyer miles,” and so the employee said, “Sure, that would be great.”

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Mediator went to the airline and said, “Look, you’re probably going to pay some cash to settle this case but the bulk of the case might be resolvable with a gazillion frequent flyer miles,” and the airline said, “That’s easy”.  And so both sides were made better off.  The employee actually got more value than a compromised cash settlement.  The airline got a settlement that was less expensive than what they would have paid if they had to shell out the cash.

J. Craig Williams: It reminds me that some airlines used to sell lifetime tickets.

David A. Hoffman: Yes, they did.

J. Craig Williams: Well you talked a little bit about Zoom, that you’ve done a mediation by Zoom or so.  Courts on the other hand to have largely been restricted to telephonic hearings, it’s not very many have the capability to be able to get the judge and the clerk and the bailiff and everybody else in court on video.  Tell me about the pros and cons of mediation by electronic means?  Have you been doing them in person?  Most of them by Zoom?  How do you feel about using a Zoom to do a mediation?

David A. Hoffman: I think Zoom is terrific.  So ever since mid-March, it’s been all Zoom all the time.  I have not had a single in-person mediation for the last year and a half and I’ve talked to lots of mediators about their experience and mine is similar to theirs namely that Zoom mediation settlement rates are comparable.  The vast majority of cases that go to mediation settle.  And that’s been true with Zoom, it’s true before COVID.  The second thing is that Zoom has some pluses and minuses.  So let me talk about the pluses for a moment.  It’s very easy to bring in people from all over the place; you know they don’t have to fly into wherever the mediator is located so that saves time and money and you might need someone for just part of the conversation.  For example, I was mediating a prenup involving a very very high net worth a guy and his fiancée, she was actually very successful herself, but there was so much money involved in mediating this prenup that we needed tax experts, we needed estate planning experts but we didn’t need them for all day, we needed them for a few hours here and a few hours there.  So Zoom made that very easy.  It also makes it very easy to shuttle from one person to the next.  I mentioned a family business mediation case that I’m doing right now, three adult siblings and their mom and one of their corporate directors.  They are dispersed geographically on two different continents and several different cities.  I never would have been picked for that mediation but for the fact that Zoom makes it possible.  So Zoom creates opportunities for the parties and lawyers to pick mediators who may not be in their backyard which is good.  Enables parties who are geographically dispersed to resolve their conflict much faster and less expensively.  Now the downside is that the personal connection is not quite the same.  My experience has been and the settlement rates bear this out that the downside of a slightly less personal connection is easily offset, is more than offset by the advantages that Zoom creates for getting cases resolved very efficiently.

J. Craig Williams: You mentioned early on that you’ve been in cases that have taken years and I you know have had long ones as well.  What’s the average in Massachusetts right now in cases getting to trial?

David A. Hoffman: That’s a really good question.  I don’t think we fully know the answer.  The backlog is huge and, in the probate, and family court, I’m hearing that in several years before people are going to get a trial date and in the superior court where the business cases are tried, it may be a year or two.  That’s not as bad as it’s been in some prior years but it’s definitely worse than it was pre-COVID.

J. Craig Williams: How do you think COVID has affected people’s willingness to be on Zoom and participate in mediations as opposed to go to litigation?

David A. Hoffman:  I think it varies quite a bit.  There are some lawyers who feel like they can only be maximally effective if they’re in person.  They’ve honed their skills of persuasion and their negotiation skills in a way that requires them to do the work in person.  There are others who have adapted more readily to Zoom and I think that what’s going to happen as COVID becomes less and less of a public health problem is that we’ll see a litigation/mediation system in which we’re using both.

(00:25:10)

We’re using in-person mediation, we’re doing zoom mediation.  I think in the end, video conferencing is going to turn out to be a bigger part of the dispute resolution world than the in-person dispute resolution simply because it’s so fast and so efficient in terms of cost.

J. Craig Williams: Certainly, here to stay I think I would agree with you there.

David A. Hoffman: I mentioned that when I first encountered Zoom, it was way before COVID, I was mediating a family business conflict and there were 15 people in the room and there were two who couldn’t make it to the meeting and the family, I didn’t really, I knew about Skype but Skype was not a very robust tool at this point, at the point of this mediation.  The family had some sophisticated technologists and they knew about Zoom and they set up two laptops in the room with a Zoom screen for each of the two absent family members, so we had all 17 and what I discovered was that we could have a very effective conversation with this hybrid of people in the room, people on the Zoom screen including one conversation that was emotionally very rich involving hard feelings that went back to early childhood and that surprised me it, it surprised me that people could make that kind of rich emotional connection via Zoom.  I still think that it’s not as robust as in-person, but you know, there’s another side to that Craig which is if for some people, and this is particularly true in divorce mediation, some people feel like it’s emotionally safer to do it via Zoom because maybe one of the parties is a more effective negotiator or more forceful just their personal style.  And Zoom can create a more level playing field when there’s that kind of power dynamic.

J. Craig Williams: Yeah, you’re all in the same size box.

David A. Hoffman: Exactly right.

J. Craig Williams: Well, I’m curious, this is my last question before we wrap up.  What do you take from the process of mediation when the day’s done and you go home, what kind of feelings?  What’s your sense of what the day’s been like for you?

David A. Hoffman: Thank you for that question because that really does get to the heart of why I do this work and why you yourself were drawn to it and just completed training in it.  I think many if not most, people who become lawyers do so because they want to make the world a better place.  They may have other reasons also, it’s to a make a living and it’s an intellectually interesting field.  One of the big motivations I’ve seen in my law students over the years is that they really want to make a contribution and create a legacy of doing good work and I think that mediation gives me a feeling virtually every single time even if the case doesn’t settle because you know even in the cases don’t settle people had a useful conversation often a heart-to-heart conversation, they may decide this is the case that needs to go to court, that’s fine.  I feel like I’ve created an opportunity for people to be recognized, respected, heard and the ripple effects when you settle a case and create that kind of relational repair.  The ripple effects of that in terms of modeling, a different way of dealing with conflict spread out from that mediation over time in ways that we cannot predict but I often get cards from people that whose cases I’ve mediated saying how much they appreciated being part of that process and saving the time, saving the money, coming up with a less acrimonious resolution and if it’s a family case, it may have saved their kids from a lot of heartache.  And if it’s a business case, it may have saved the customers, the clients and the business itself from a lot of destructive warfare.  So I go to bed at night thinking, I am so glad I found my way to this work.  And I so appreciate Craig the invitation to come and talk with you about it.  As you can tell, it’s something that I care a lot about.

J. Craig Williams: Very obvious, yes, and you’re certainly welcome for the invitation.  We’ve enjoyed having you but before we let you go I’d like you to wrap up with your final thoughts and your contact information for our listeners so they can reach out to you, so take it away.

(00:29:59)

David A. Hoffman: Well, we have a very simple website address, it’s blc, stands for Boston Law Collaborative, blc.law not .com, .law and if people want to visit the site, we have a lot of resources, they’re welcome to look at our forms, sample agreements and checklists and so forth.  I hope those will be useful as well as contact information for how to reach me and my colleagues there.  I guess my parting thought would be this.  Not only just mediation create an opportunity to make the world a better place, but I think it’s helped me evolve in a more peaceful direction.  I grew up in a home, where like many homes, there was conflict at the dinner table, there were tensions and I think I was attracted to mediation partly as a way of working out in my own heart that kind of conflict and I think that mediators often describe their work as an opportunity for personal growth, so if any of your listeners are interested in becoming mediators, I highly encourage them to look into it.  Maybe take a training, maybe they decide I don’t want to be a mediator but they learn about the tools in the mediator’s toolbox.  I once trained a small law firm in mediation not because they wanted to be mediators because they wanted to see inside the toolbox, so i would say to your listeners, “If you want to become a mediator, great idea to get training.  Try it out.”  Even if you don’t want to become a mediator the trainings are useful to help make people better negotiators, better users of mediation and also this is stuff that you can do at home and I’ve found that my marriage has benefited from learning the skills that mediators have.

J. Craig Williams: You know that’s an absolutely fantastic idea to train lawyers in mediation because having been at large law firms and small law firms and so forth, lawyers don’t know how, they don’t know how to use mediators and they need to learn.  That’s a great idea.  Well David, as we wrap up, I’d like to thank you for joining us today.  We’ve had Attorney David Hoffman from the Boston Law Collaborative with us.  It’s been a pleasure having you on the show.

David A. Hoffman: It’s been a pleasure talking with you Craig.  Thank you.

J. Craig Williams: For our listeners if you like what you heard today, please rate us on Apple Podcast or your favorite podcasting app.  You can also visit us at legaltalknetwork.com where you can sign up for our newsletter.  I’m Craig Williams.  Thanks for listening.   Please join us next time for another great legal topic.  Remember, when you want legal, think Lawyer 2 Lawyer.

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