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Showing posts from April, 2015

How are Mediators similar to Robin Hood?

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.…

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 experi…

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 …

The Observer Effect in Family Conflict

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 clien…