Alternative Dispute Resolution...

[DirtyHippieUTE]

I'm attending a seminar this week. The Northwest Institute for Alternative Dispute Resolution. Basically, it's CLE for some guys and 2hrs of credit for students where we learn to be "certified" mediators (that and a nickel might get us a gumball).

Here's the thing I wonder about (this will not be interesting to those of you who do not practice law)...

Once you step beyond the "little" civil cases (small claims, divorce, small PI) why is Mediation a good idea again? The way I see it, the more complex the case becomes, the less cost effective mediation or binding arbitration becomes. It may speed up the discovery process a little but with all of the questions left unanswered by ADR, you'll probably end up having to litigate the mediation agreement.

Then you've got all of these legal questions about who is and who is not bound by ADR, who should be a party to ADR, etc... By the time you create rules for all of this crap you've pretty much set up a parallel justice system but without any consistency or precident...

I don't get this...

[Archaea]

Mediation with a competent mediator is fabulous, especially for complex cases; main problem, there are very few good mediators.

[DirtyHippieUTE]

Originally Posted by Archaea

Mediation with a competent mediator is fabulous, especially for complex cases; main problem, there are very few good mediators.

Couldn't two lawyers just broker a settlement without having to pay some guy $$$$$ to tell everybody to play nice?

I guess I'm just having a hard time seeing why two parties who are willing to reach a settlement need to pay some guy to tell them how to shake hands and play nice.

[Archaea]

It is very difficult for parties to discern truth from reality. A disinterested third party can effectively communicate who looks like the loser to that party. This is very effective.

[DirtyHippieUTE]

I guess I'd just have to meet somebody who does large transaction ADR to get it. The people I've seen who claim to be "experts" seem to me like they'd be as useful going into a negotiation as the French in going to war.

This class feels like a combination of "sensitivity" training from the Army and the "peacemaker" lesson from primary.

[Detroitdad]

I mediate small claims right now. I can tell you that the training is a lot like what you describe and that the practice of mediation has very little in common with what the training shows. I have an appointment to go and observe a large transaction mediation in the couple of weeks. I will let you know how it works out. I just wish I could get credit for this. Of course, I am getting paid, but you know....

[Archaea]

The training is bullshit.

The trainers know nothing about mediation.

In order to know mediation and to do it well, you must know the law, the potential results, know people and know how to get things done.

Sensitivity training is bullshit.

I doubt you could be a great mediator, unless you were also a great advocate.

[DirtyHippieUTE]

Originally Posted by Archaea

The training is bullshit.

The trainers know nothing about mediation.

In order to know mediation and to do it well, you must know the law, the potential results, know people and know how to get things done.

Sensitivity training is bullshit.

I doubt you could be a great mediator, unless you were also a great advocate.

I just about blew a snot bubble when I opened this as my instructor was in the middle of saying, "I've been a sucessful mediator for...."

Oh well... At least I get two credit hours out of this.

[UtahDan]

Originally Posted by Archaea

It is very difficult for parties to discern truth from reality. A disinterested third party can effectively communicate who looks like the loser to that party. This is very effective.

Exactly. You need a third party (and the group we use is 100% retired judges) who can look right at your client and the other guy's client and say "here is the likely outcome."

People hear what they want to hear, get emotionally invested and for any number of reasons don't want to do what is rational. I would bet that you would agree with me that unrealistic client expectations (despite counsel's best efforts to shape them) are a much bigger obstacle to settlement than unreasonable opposing counsel ever is.

[DirtyHippieUTE]

Originally Posted by UtahDan

Exactly. You need a third party (and the group we use is 100% retired judges) who can look right at your client and the other guy's client and say "here is the likely outcome."

ROFLMAO we just did a little "practice" mediation. The guy who is here for CLE who has done this in real life pretty much said that to one of the parties. It just about blew the instructor's mind. She thought that was WAY out of line.

Apparently there's a pretty huge gap between theory and practice...

I'm beginning to feel that this class might not be that helpful....