I’ve heard from fellow lawyers more than a few times: “I’m just going to get my mediation certification so I can start building my mediation practice for when I’m ready to slow down.” Having mediated for a few years now, these statements make my skin crawl.
Being a mediator is often thought of as just that. A nice way to transition out of an active litigation process and toward retirement. Or, said another way, slowing down. I think that mentality, which is fairly pervasive among lawyers, does a disservice to the mediation process.
When mandatory mediation was originally enacted, it was meant to ease the burden on courts of cases that should be resolved and don’t need to clog the court system. By all estimates, it has been very successful at doing just that. It is to the point that trials these days are exceedingly rare. But not because mediation is an off-ramp for tired lawyers. To me, the opposite should be true.
For those of us that don’t believe in absolutes but do believe the best interests of our clients often involves compromise, mediation is an incredibly useful tool. And a good mediator can go a long way to working out a resolution.
Don’t get me wrong. I’m not an ageist. And I don’t day-dream about throwing all my litigation files in the trash and opening a mediation boutique that focuses entirely on non-compete and trade secret matters. But I do believe that mediation requires significant attention, a commitment to getting a resolution and should not be viewed as requiring any less diligence or skill than full-blown, hand-to-hand litigation.
I also think that serving as a mediator is helpful for even the most effective litigator. In mediating the cases I have, I am forced to look at the various angles of each claim; to ascertain each of the parties’ interests and motivations; to have very candid conversations about the merits of cases, the costs of litigation and the uncertainty of trial. This is particularly true in the employment law matters I deal with most regularly where emotions are high and often distract from a clear-headed evaluation of these issues.
In my version of a perfect world, all lawyers would serve as mediators. Certainly, there are separate skill sets for litigators and mediators, but they do not have to be mutually exclusive. But I think the process of mediation, the skills it requires and the goal of resolving disputes (which I believe was the original intent of the modern legal system) would be best served if more lawyers were committed to these equally important and intimately related practices.