Friday, April 17, 2015

How are Mediators similar to Robin Hood?

Robin shoots with sir Guy
by Louis Rhead 1912
Mediation, as a service option, has grown significantly over the last 30 years.  This is one of the topics of an upcoming article in the ABA's Dispute Resolution Magazine for which I was interviewed.  We discussed how it is easier for practitioners to be trained and for clients to find mediators today than it used to be.  However, there is still one place where mediation continues to lag behind resolution of disputes through court litigation: the price.

Lower cost is often a motivating factor for people seeking to resolve disputes through mediation.  Because less time (and therefore money) is spent on court dates, discovery and positional negotiation, the financial cost of mediation is often less than litigation.  For practitioners this means that we make less on a mediation case than a litigation case, and in order to succeed, mediators often have to be better at the practice of business and marketing than litigators.  To make the same amount of money we need to have more cases.  While many mediators say that they would like to be full time peacemakers, many keep a litigation practice to "pay the bills."

Robin Hood, of English folklore, was an outlaw who took from the rich to give to the poor, and this model of legal practice is essentially the same.  While I'm not equating what we do to stealing from the rich, mediators settle matters outside the legal system and many rely on their higher net fees from litigation clients to fund their mediation practice.

Like Robin Hood's gifts to the poor, this model benefits the mediation clients.  There are more mediators in practice than if we were limited to only mediation and potential clients benefit from more choice and competition in the mediation marketplace.  However, we don't have to model ourselves on Robin Hood.  While some enjoy balancing different types of practice, others find it difficult to wear two (or more) hats.  There are ways to make a peacemaking practice a full-time practice if that is what you want to do.

If you're interested in learning more about that possibility I suggest attending an upcoming workshop on June 19-20, 2015 from Woody Mosten and David Hoffman: Building a Profitable and Satisfying Peacemaking Practice: A nuts and bolts, “how to” workshop.

Monday, April 13, 2015

What is a Skylark? Other than the new name of Kelsey & Trask, P.C.

Kelsey & Trask, P.C. was formed in 2008 by Justin Kelsey and Matthew Trask, and since that time we have grown and changed in many ways.  With Matt's recent opportunity to join Remington Arms, we've re-evaluated what Kelsey & Trask, P.C. means to us and to our clients.  Our new name, Skylark Law & Mediation, P.C., reflects who we are today and what qualities we want to continue to bring to our clients.  Skylark represents the future of our firm, while not forgetting where we came from.  Symbolizing that ongoing connection to our past, the letters from Skylark are all contained within our original name, Kelsey & Trask.

What is a skylark?  A skylark is a modest but agile song-bird that typically travels in small flocks, and sings at dawn.  While these changes represent a new day at Skylark Law and Mediation, we shall remain a small firm that doesn't apologize for being small. Our close-knit team has a variety of experience and expertise, and we use that experience along with the latest technology and training to bring dynamic, agile solutions to our clients.

Every member of Skylark Law & Mediation is a trained mediator and Justin Kelsey, the owner, is an MCFM Certified Mediator, a designation reserved for members of the Massachusetts Council on Family Mediation with significant mediation experience, advanced training, and education. In addition to offering mediation and collaborative law services, we continue to represent clients both in court and in all of the various types of out-of-court dispute resolution.

We think of ourselves as a family that helps other families resolve conflict...

and we hope you will too.

Should we also talk about when mediation fails?

This post is a follow up to last week's post about the Observer Effect in Family Law, and the ongoing conversation on the MBA's My Bar Access forum about the recent decision in the Ventrice case.

A few attorneys in that discussion have expressed an opinion that is clearly held by many others:

"...what I see is a lot of failed mediation."

Unfortunately this fact may be true for many, because litigators don't see the successful cases from mediators, they only see the cases that failed. This creates a skewed view of mediation. But it's also problematic if you extrapolate any one failure to all mediation. If the parties failed to reach an agreement in mediation does that mean mediation doesn't work, or that mediation didn't work for that couple?  If a party changes lawyers do we call that a failure of the whole court system?

There are bad and good lawyers, and there are bad and good mediators, and there are bad and good clients! We have to be careful not to treat them all the same. That's why I believe informed client choice is so important. Ultimately the client will always know their individual situation better than we will.

So how do we find the right balance for informed client choice between mediation, litigation, collaborative law and other hybrid processes (such as conciliation)?

The first step is to make sure that while the importance of litigation as an option for those that need protection is not diminished, it is not touted as a one-size fits all solution for anyone ready to divorce.  We must make sure that reservations about mediation are not the only thing clients in conflict hear about mediation.  We want you to hear about the successes too!

Court access should not be restricted, and there are serious reasons to be concerned about anything called mandatory mediation.  But the value of voluntary mediation should not be lost in that statement.  Mediation can be a valuable resource to many before going to court, and a powerful tool even once the court process has begun.  While our office offers multiple dispute resolution options, including litigation, I personally prefer mediation.  I have litigated, I have participated in Collaborative Law, I have represented clients in mediation, and I have mediated.  While each process has its advantages and disadvantages, my anecdotal experience has been that the clients I have who participate in mediation or the collaborative process are happier with their results and return to court less often.  While I recognize that my experience is not universal, I think it's an important counter-point to the litigator's experience of "failed mediations."

In rightfully cautioning about being too enthusiastic about any one process option, Steven Ballard termed the phrase "enthusiastic mediation evangelist" which I gladly accept.  Just as I am asking attorneys who don't mediate to self-reflect on their "Observer Effect", I will self-reflect about whether I am too enthusiastic about mediation, and how that affects my potential clients.  I wouldn't want one of my clients to lose the protection they may need from court by not having enough information, but I equally fear that potentially peaceful divorces are being guided into a conflict-ridden process due to lack of information.

The take-away point should be the same for everyone.  Many misunderstand what mediation is and mislabel dispute resolution processes.  I urge litigators to educate themselves about mediation, because if you only tell clients about the disadvantages then you are not providing balance either.

The question I get most from other lawyers about my mediation practice has nothing to do with the merits of mediation, which as Steven points out I'm enthusiastically willing to espouse.  The question I get most is how do you make enough money doing it.  That is a really disappointing question because it means that many lawyers don't give mediation a chance because litigation may be a more lucrative business model.  Should that drive the client choice?  How do you think clients feel about that sentiment?  (Hint: watch the trailer for Divorce Corp.)

Regardless of the fact that I think mediation and other dispute resolution processes are a viable business model, I think they are better for clients in most cases and that should be the first priority.  Look for my future posts on resources available to make mediation a better business model (including an upcoming seminar from two mediators who have found success in peacemaking).

Until then, I will try to bring balance and clear choices to potential clients, but to other lawyers I'm happy to be the "enthusiastic mediation evangelist." And I can't help quoting John Lennon again, because:  "All we are saying is give peace a chance."

Friday, April 3, 2015

The Observer Effect in Family Conflict

Duck or Rabbit?- from Wikimedia Commons
The recent appellate decision in the Ventrice case sparked a great discussion on the MBA's My Bar Access forum, which was started by William Driscoll the appellate counsel for the successful party in that case.  The discussion ranged from constitutional and statutory issues, to an examination of the court's ADR referral program.  One comment in particular, though, just didn't ring true for me:
"My personal impression is that mediation works great for those clients who can discuss the issues like adults, but in my experience those are few and far between at least in the beginning of the process. Then, even those clients who are interested tend to lose interest when weighing the cost of paying their attorney's and a mediator to go over the issues and trying to find a compromise, when they either do not want to compromise or are doubtful of the other side compromising." - An attorney who describes himself on Avvo as advocating "fiercely" for his clients.
It's great to have another perspective and it's interesting to see the path that a lively discussion about an appellate case can take, but I felt compelled to respond to this comment and the implication that most cases cannot mediate effectively.  Here was my response:

I've heard many times from those who primarily litigate that the majority of their clients usually want to take at least one issue to court and are unable to compromise.  For the first four years of my career when I only litigated, and before I took the mediation training, that was my experience as well.  However, that is no longer my experience, which means one of two things.  Either my client base has changed or I have changed.  Either a different self-selecting group of clients is walking into my office now, or there was something about the litigator version of myself that had an effect on my clients' willingness to settle.  Or maybe it's a mix of both.

While it is certainly true that there are people who seek me out now specifically for out-of-court representation or mediation, I still receive a significant number of referrals and web inquiries from people who don't yet know how they want to proceed.  I believe we have a great influence on those undecided or uneducated potential litigants by how we handle that first meeting.  We are not disconnected observers, and we must do a better job of recognizing our own influence on the process.  Let's call it the Observer Effect of family law - how we measure the conflict between people has an effect on how they choose to resolve that conflict.

Do you see a couple that can work together
or one that cannot?

My theory is difficult to test by experimentation because it's not possible to have the same people walk in for my initial interview and then walk in, unaffected, for a litigators' interview, or vice versa.  However, the data provided by Dr. Emory in his Mediation Study is pretty compelling.  With a flip of a coin his study decided whether couples who had already filed for a custody hearing would try mediation, and 80% settled their cases.  Those numbers just don't match with the anecdotal observation that most couples can't settle in mediation.

With that empirical data available to us, I think we have to look harder as practitioners at how we affect the decision of clients to fight or talk.  When a potential client walks into our office and tells us about the difficulty reaching agreements with their unreasonable ex, the conversation that follows will be very different depending on what assumption I start from.  Do I assume that they can't work it out or that they can, if only they had the help of a trained professional?  If I start with the assumption provided to us by Dr. Emory, that 80% can settle, even if they've already filed a request for a custody hearing, then I wonder how many more of those people would settle.

Most lawyers, especially those comfortable in litigation, are competitive Type-A personalities.  But if you really care about the well-being of your clients and their children, then when they walk into your office and ask for your help you have to ask yourself: is it you that wants to fight or is it them?

I find myself asking that question every time I get a nasty letter or e-mail from an opposing counsel and my initial instinct is to fire one back.  Or whenever a particular issue in a case hits on one of my own personal biases.  But if I ask myself constantly whether I want to fight this issue or my client does, it usually leads to an even more powerful question:  what is the best way to respond in this situation to accomplish my client's goals?  The more I ask that question the less often I find that the answer is litigation .

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