This post describes CLE presentations I gave for the Texas Bar. It provides material for participants at the program and is another illustration of how people can use the Stone Soup Project idea of using continuing education programs to produce and share knowledge about actual practice.
I previously tested this approach in two days of mediation training with Susan Yates for the state and federal courts in New Hampshire. That was a more ambitious effort in which we conducted a survey and generated a lot more data. The Texas presentations illustrate a simpler model that speakers easily can use and adapt. In a companion post, I describe the logistics of the process for this program and provide some materials that you might want to use in your presentations.
I was a featured speaker at the TexasBarCLE’s Annual Advanced ADR Program on January 26. (Thanks to David Harrell, Dawn Mershon, Gene Roberts, Sheena Ward and others for arranging my talks.) I gave two presentations based on my book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money. One was for lawyers (Lawyering with Planned Early Negotiation) and the other was for mediators (Are You Missing Opportunities? Mediators as Early Case Managers). You can click the preceding links to see the powerpoints of my presentations.
The program organizers collected demographic information from the 116 people who registered for the program. Of those who answered questions, 82% said that they had been licensed for at least 20 years. Fifty-five percent are in solo practice, 24% are in firms of 2 to 10 lawyers, and 21% are in firms of 11 or more. They practice in a wide range of subject areas, with substantial numbers practicing commercial litigation, family, business, trusts and estates, labor and employment, and personal injury cases, in descending order of frequency. Fifty-eight percent are male and 42% are female. Eighty-five percent identified as Caucasian and the rest identified as Hispanic, African-American, and Asian.
At the beginning of my presentation, I asked people to indicate by show of hands whether they worked as advocates, neutrals, or both. I didn’t count hands but my impression was that about half worked exclusively as advocates or neutrals and the other half worked in both roles (in different cases). Of those who worked exclusively in one role, the vast majority worked as neutrals. Of those who worked in both roles, I asked in which role they worked more and it seemed about evenly divided between those who worked more as advocates and those who worked more as neutrals.
Collecting Data at the Program
One of the challenges in using educational programs to collect data is a tension between the goals of having speakers provide material to participants and gathering information from them. Participants generally want to get information and ideas from the speakers and would be disappointed if the speakers skimp in their presentations. On the other hand, experienced practitioners often want to share their experiences and learn from their colleagues’ experiences. So the trick is to find a good balance of presenting and eliciting information.
I had a lot of material to present and I didn’t spend as much time eliciting participants’ responses as I would if my priority was to collect data. The following summary highlights some points in the discussion but it is not exhaustive.
This post also does not repeat everything in my presentation. If you would like to get more detail, take a look at the powerpoints, linked above, and the resources listed below.
Ideas for Advocates
When I give presentations about lawyering with planned early negotiation (PEN), I note that many lawyers use the procedures I describe, which might simply be called “good lawyering.” I say that it is Nike lawyering – they just do it – and that my suggestions are designed to help them do it more consciously and systematically.
Focus on Client Interests. I think that the starting point for advocates should be that their primary goal should be to satisfy their clients’ interests. Even the old Model Code of Professional Responsibility, which has the (in)famous language of Canon 7 that a lawyer “should represent a client zealously within the bounds of the law,” includes Ethical Consideration 7-9, which states “a lawyer should always act in a manner consistent with the best interests of his client.” Under the current ABA Model Rules of Professional Conduct, Comment 1 under Rule 1.3 states that a lawyer must “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” (emphasis added)
I asked the CLE participants what clients want. Of course, different clients want different things – and a single client may want several things. People suggested that clients may want lawyers to (1) respect them, (2) listen well so that the clients feel heard, (3) be a “guide,” (4) help solve their problems, and (5) get money or prevent someone else from getting money. I suggested a general idea that clients want to get value for the attorney’s fees they pay to help solve their problems. The fact that lawyers can’t specify a single or uniform set of client interests for all clients highlights the importance of lawyers carefully inquiring to identify each client’s interests.
Do Early Case Assessments. Understanding clients’ interests is a part of an early case assessment, which lawyers should do in every case. In addition, this involves learning the facts, the law, procedural options, and the other side’s interests and perspectives, among other things.
Develop a Good Relationship with Counterpart Lawyers. While doing an early case assessment is obvious (though lawyers don’t always do them well or at all), developing a good relationship with the other side’s lawyer is not so obvious – and lawyers generally don’t take initiative to do so. Yet, the relationship with what I call “counterpart lawyers” (rather than “opposing counsel”) can make a huge difference in how a case unfolds.
As I noted in an article, Getting Good Results for Clients by Building Good Working Relationships with “Opposing Counsel,” “Lawyers often say that they can predict how well a case will proceed once they know who their counterpart lawyer is. If the counterparts have a good relationship, they are more likely to be able to exchange information informally, agree on procedural matters, take reasonable negotiation positions that recognize both parties’ legitimate expectations, resolve matters efficiently, satisfy their clients, and enjoy their work. On the other hand, if the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. Lawyers may decline to grant each other routine professional courtesies (such as extensions of deadlines to file court papers), bombard each other with excessive and unjustified discovery requests, file frivolous motions, make outrageous negotiation demands, yell and scream, and generally behave badly.”
I asked participants how many of them have taken the initiative at the outset of a case to go out to lunch or get to know counterpart lawyers they don’t know. I would estimate that 10% said they had done so – which is similar to the percentage in several other groups I have polled on this question.
One person said that developing relationships used to be the norm, but it isn’t any more. One mediator said that, these days, sometimes the first time that lawyers meet each other or really talk with each other is when they get to mediation.
Lawyers who have developed good relationships with counterparts generally report that this has helped them deal with problems and make cases go more smoothly.
So I say that the most valuable takeaway from my presentation may be the idea of getting to know one’s counterpart at the beginning of a case.
Assess Appropriateness of PEN. Lawyering with PEN isn’t appropriate in every case, particularly when the other side is untrustworthy. So lawyers should assess the appropriateness of each case and consult their clients to decide whether to try this approach.
Consider Benefits of PEN. When PEN is appropriate, it offers many potential benefits for clients. It also can benefit lawyers. People noted that it can help lawyers develop a reputation for resolving cases more efficiently and generate more referrals. Lawyers using alternative fee arrangements, such as bonuses for early resolution, may generate more income. (My book includes a chapter on billing arrangements and clauses lawyers can use in retainer agreements.) I also noted that lawyering with PEN is likely to make clients feel more satisfied with their legal services, which can reduce the amount of lawyers’ slow-paid and uncollectable bills. Perhaps most important, using PEN can help lawyers act consistent with their values and gain professional satisfaction in providing valuable services to clients, all the while reducing everyone’s stress.
Why Lawyers Don’t Use PEN More Often. Lawyering with PEN makes a lot of sense. So why don’t lawyers do this more often? People identified lots of reasons including that (1) law schools spend so much time teaching that litigation is the ultimate dispute resolution process, (2) litigation-as-usual is the norm in practice, (3) lawyers feel that they aren’t ready to negotiate early in a case, (4) the norm is to wait to negotiate until they get to mediation, (5) it’s hard to disabuse clients of unrealistic expectations which may be based on strong emotions, (6) lawyers focus on making as much money as possible on each case rather than their overall book of business, and (7) it is inconsistent with a business model of being the best and toughest lawyer on the block.
Escape From the Prison of Fear. I have described what I call lawyers’ “prison of fear,” which is a set of reasons inhibiting lawyers from suggesting early negotiation. (Here’s an article analyzing the prison of fear in some detail.) CLE participants had excellent suggestions for “escaping” this prison of fear. A first step is to have good communications with clients, helping them to set realistic expectations. This involves an early discussion about possible outcomes and how much time and money the clients are willing to invest in the case. One lawyer provides a detailed outline of possible litigation expenses. Another suggested using a decision tree to help clients understand the various contingencies in the case.
Lawyers face a dilemma about how to maintain clients’ confidence that lawyers will fight but also negotiate. The solution is to develop a good relationship with clients and convey that lawyers will (1) negotiate assertively, as appropriate, (2) reach a reasonable settlement, if possible, and (3) advocate vigorously in litigation, if needed.
Lawyers face a similar dilemma with counterpart lawyers – and have a similar solution. Lawyers who want to use this approach should convey that they (and their clients) would prefer to negotiate but are prepared to litigate vigorously if necessary. Lawyers should tell their counterparts that they always explore negotiation in every appropriate case (and are not doing so because of weakness in their cases).
Problems in Negotiation. Finally, I asked people about problems they experience in negotiation. As in the New Hampshire training, some people identified challenges in dealing with clients. Mediation can be very helpful to give clients a chance to speak and make them feel that they effectively got their “day in court.”
One person described a difficult problem when counterpart lawyers aren’t interested in early negotiation because of their interest in continuing litigation. Of course, one can discuss the parties’ interests, but lawyers generally can justify continued litigation if they want to. This illustrates that lawyering with PEN won’t work in every case. But it’s worth considering when appropriate – and not simply assuming that it won’t work.
Ideas for Mediators
Whereas my suggestions for lawyers reflect things that lawyers often do (though not often enough), my suggestions for mediators are things that mediators generally don’t do.
I asked people in the audience if they would like to provide additional helpful services to clients and to get more work. Shockingly, virtually everyone indicated that they would.
So I suggested that mediators might offer to help manage cases relatively early in litigation and not only help resolve cases toward the end.
These ideas would be most likely to be used in complex and/or contentious cases but they also can be used effectively in more routine, medium-size cases. For example, in divorce cases that would have a single mediation session toward the end of a case, the parties could benefit by an early mediation session to plan the process to be as efficient and fair as possible.
To make this happen in particular cases, the lawyers and parties, rather than mediators, would need to take the initiative. However, mediators can let people know that they offer these early case services. In addition, ADR organizations at the national, state, and local level could develop general protocols legitimizing and publicizing the availability of early neutral case management services.
Mediation Services in Addition to Resolving Ultimate Disputes. Mediators can (1) promote good confidential communication, (2) de-escalate conflict, (3) arrange early and informal exchange of information, (4) manage technical issues involving experts, (5) resolve pretrial disputes (especially involving discovery), and (6) prepare everyone for effective mediation sessions.
If parties don’t settle in mediation, mediators can help lawyers and parties consider whether to arbitrate unresolved disputes and prepare for effective arbitration or trial.
As I listed various things that mediators might do, I asked if participants had done them. In general, most mediators in the audience hadn’t used these techniques. The fact that a number had done so validates these ideas and could encourage other mediators to offer these services when appropriate.
Promote Good Communication and Resolve Pretrial Conflicts. As one person noted, mediators are oriented to helping parties reach agreement, in contrast to advocates, who often are focused on “winning the case.”
Mediators can have separate conversations with lawyers during the pretrial process much like conversations in caucus during a mediation session. Of course, both sides must be aware that these conversations are taking place so that people aren’t surprised and they perceive the mediators as impartial.
One mediator said that she sometimes has multiple mediation sessions in a case and that early sessions are related to scheduling and e-discovery issues.
I suggested that mediators might serve as a kind of discovery escrow agent to receive information from both sides and arrange for simultaneous exchanges. One mediator said that he did something like that and worried about the risks, so he hasn’t done it again. If mediators do want to perform this service, they should consider potential problems and plan to avoid and deal with them. For example, if parties do not comply with agreements to share information within a specified time, mediators can return any information to the parties who provided it.
One person noted that mediators can suggest that the principals speak to each other directly when appropriate and get lawyers “out of the way” of the conversation.
It is important to consider whether statutes and rules governing confidentiality would protect the confidentiality of these conversations. One person said that the Texas ADR statute is more protective of confidentiality than the Uniform Mediation Act. She said that the Texas law provides a blanket presumption of confidentiality except for certain circumstances, and that people should take advantage of these protections.
Manage Use of Experts to Deal with Technical Issues. I suggested that mediators could help lawyers manage the process of retaining and using experts to avoid expensive and risky “battles of the experts.” For example, mediators could help arrange to retain a joint neutral expert and define the parameters of their work.
I also mentioned the “hot-tubbing” process of engaging both side’s experts to identify areas of agreement and disagreement. I first heard about hot-tubbing in the New Hampshire training and, from the smiles on people’s faces, clearly some folks at this program are familiar with it.
None of the people in the Texas program said that they had managed the use of experts early in a case, but this could be a useful service by mediators in appropriate cases.
Draft Agreement Language. We had a good discussion of drafting agreement language in time to avoid problems from careless drafting at the end of a long mediation.
Several lawyers said that they draft boilerplate agreement language in advance. The process and timing of using this language is important. There is a risk that if one side drafts the language the other side may worry that it is one-sided. Someone mentioned that the Dallas Bar Association Employment Law Section has published a standard settlement agreement, but I gather that some employers aren’t comfortable using it.
To avoid suspicion that boilerplate will inappropriately favor one side, lawyers may want to exchange this language with each other before the mediation session. However, some lawyers are wary about sending the language in advance because it may make them seem too eager to settle. One person also expressed the concern that pre-drafted language may make parties feel that the agreement isn’t really “their resolution.”
One mediator said that she sometimes suggests to lawyers that they start drafting agreement language while she caucuses with the other side. She finds that when parties see a template settlement agreement during mediation, they are more likely to reach agreement.
In any case, before a mediation session, lawyers should consider what they want to include in an agreement even if they don’t draft or share language in advance.
One person said that lawyers should bring their tax ID numbers to mediation to speed things up after reaching agreement.
Plan the Mediation. Mediators often are involved in planning for mediation sessions. I suggested that, based on memos from or conversations with lawyers before the mediation, it can be useful for mediators to identify issues that might be addressed. This list presumably would be tentative, subject to discussion at the mediation session itself.
Some participants noted the importance of making sure that the right people attend the mediation. One person noted that mediators don’t know who should attend so they should make sure that the lawyers exchange lists of participants in advance.
Help Lawyers When Cases Don’t Settle. Some participants help advance cases that don’t settle by mediating agreements to identify experts and exchange exhibits. I compared this to pretrial conferences in court except that mediators promote agreements rather than make decisions about these issues.
One person described a process of having an attorney conference to discuss “what’s ahead” and see what could make a difference in re-evaluating the case and possibly settling. This discussion might lead parties to turn the mediation into a med-arb or select an arbitrator to resolve the remaining disputes.
Mediators might suggest that lawyers file cross-motions if there is a legal point that lends itself to resolving the case. This process could lead to a high-low agreement based on that issue.
Why Early Case Management by Mediators Might or Might Not Work. I listed a number of reasons why mediators might not be retained to help with early case management including the fact that it isn’t widely done, lawyers may resist losing control (and revenue), and concern about engaging more professionals.
One participant noted that these ideas give mediators additional “tools in their toolbox.” Another described them as a common sense way to shortcut a process that takes too long, hurts feelings, and hurts pocketbooks. He said that these ideas might get people to where they want to be sooner rather than later.
If a critical mass of mediators in a practice community offer early neutral case management services, lawyers may see them as normal and be more open to using them.
Lawyers might want to read Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better, which is based on interviews with lawyers about the procedures they use in pretrial litigation.
Mediators may want to read a short article, How Neutrals Can Provide Early Case Management of Construction Disputes. Virtually all of the techniques listed in this article can be applied in any case, not just construction cases.
The ABA Section of Dispute Resolution produced helpful materials that lawyers and mediators might use. Its Task Force on Improving Mediation Quality produced a detailed report based on surveys and focus groups with lawyers and mediators. I wrote a brief summary of the report, Doing the Best Mediation You Can.
The Section also produced very practical guides with checklists of issues to help parties prepare for mediation. There is a generic guide and two variations designed for family cases and complex civil cases.
The Section’s Planned Early Dispute Resolution (PEDR) Task Force produced a user guide to help organizations develop PEDR systems to wisely and efficiently handle a regular, ongoing series of cases. This short article describes key issues in developing a PEDR system. Peter Benner and I interviewed 15 lawyers for a study, Why and How Businesses Use Planned Early Dispute Resolution.