The Second European Mediation Congress
Mediation advocacy
Parallel workshop session: Mediation advocacy.
Robert Smith, Director, CEDR Solve:
Good afternoon, folks. We're going to start now even though other people may still be coming in, because I don't want to lose any time, and in the words of Sir Thomas Lipton, this is going to be brisk. There is no other way we can capture the material.
So let me tell you about what will happen in the next short time. By the way, I'm Bob Smith, I'm the Director of Mediation at CEDR. We'll have brief presentations, and I mean on the order of seven minutes, eight minutes, from each of the panellists, and then we're going to break out into four or five, I guess now, five groups in each part of the room, with one of the panellists and maybe one other person, depending on how many people we have. And that will be more or less 10 minutes, and then we'll come back and each of the folks on the panel will report on what happened, and we hope to capture on the flip chart, I guess you call it, what happened. What we're going to be talking about during the break out, so that you might think about it, if you wish, is what went wrong in a mediation. That is to say, what was there that didn't work? So that's the shape of the training. If anybody has any other ideas as we progress, please chime in. Bear in mind that my principle role as I see it is to make things move along here. So, first off, I don't know if these microphones work but, look, I was trial order for a long time and if I can't talk to a room this size, I shouldn't be without a microphone, you know.
I asked if somebody would like to introduce me, they all said no. So I would very briefly introduce myself, and then I will be able to introduce them so I won't have to interrupt later on. As you can tell from the accent, I'm not exactly from Brighton and Hove. I went to Harvard College, I was correspondent in the Washington bureau of the New York Times, and then later on I went to Yale Law School and became an Attorney of the United States. By the way, I'm also a barrister here. I was with a large San Francisco law firm as a litigator for a good time, then I served in the US administration of President Carter in the Justice Department as Special Assistant to the Attorney General of the US. I was then a US attorney in San Francisco, which is the Federal Trial Lawyer, and then I joined the Bank of America, in those days based in San Francisco, where I managed litigation worldwide. After that I started my own law firm which came to represent three dozen banks. I've been a mediator for 15 years. I've taught this stuff, allegedly, in law school. I've written a rather large, cumbersome, burdensome treatise on mediation, and I'm now Director of Mediation at CEDR.
So, welcome, and I hope we'll be able to push through this in a practical fashion and live up to your expectations. In terms of the panel, first on my immediate left, is Avi Schneebalg from Brussels, and to his left, Ronald Bradbeer, and to his left, Alexander Oddy. Let me introduce, if I may, Avi first. I'm trying to translate immediately from a description in French, so forgive me if I engage in any solecisms. Avi has a Masters in Law Degree from the University of Brussels, and was admitted to the Bar of Brussels in 1981, having before that been a researcher at the Centre of Philosophy and Law, University o f Brussels. He specialised in Commercial Law, and since the 1996 is one of the pioneers in continental Europe in the instruction and practice of alternative modes, where appropriate, of the resolution of conflict. He's been accredited by more mediation centres than anyone probably could imagine, that's not in the text, but it's true, and he's taught this discipline in Belgium and overseas. He's just come back from Malibu, California, lucky he, to lawyers, to judges and to CEOs. He's the author of a book published in Brussels and Paris, called, in translation, The Role of Counsel in Civil and Commercial Mediation, which is to be coming out in Canadian, Italian and Portuguese editions. Please.
Avi Schneebalg:
Thank you. First I was asked to convey the greetings of what is probably the biggest club of mediators worldwide, the Southern California Mediators Association, and as I flew in this morning from Los Angeles, if I say something, a lot of foolish things, please be kind enough not to [inaudible]. Now, to our topic as our president warned us will be very strict on timing, let’s get immediately to the point.
I have spent the best part of nine and a half years of my career, of my life, trying to convince lawyers that mediation was good for their clients. A year and a half ago, I realised it was a total waste of time and energy. They know it, since a year and a half, I tried a much more difficult task indeed to try to convince lawyers that mediation is good for them, or at least, not bad for them, and that ADR does not, as the old joke goes, does not, repeat, not mean alarmingly dropping revenues. And how do I do that? Well, I remembered what I studied in sociology in my university. I apply a Marxist analysis to that. A Marxist analysis, the lawyers say, is good, is the economy stupid. Is good, or at least not bad, for your pocket book. Now, in order to do that, I must address and attack what I think is one of the most perverse and stupid ideas ever implemented by man. I have named the system called, a [inaudible] reference, the timesheets. Difference, when you think the timesheet has been widely implemented by US lawyers, and then by lawyers worldwide. Since George Washington, since Abe Lincoln, when? Since when is it the regular classical way of calculating the fees? Come on?
Audience:
The 60s.
Avi Schneebalg:
Indeed, correct. The late 60s, early 70s. Before that, typically, the client would receive a one line fee note for legal services rendered in October 2005, x dollars. And this was a much fairer system. Because the timesheet gives you a false idea of precision. Oh, I can’t dispute, 280 hours times $250/hr, makes… It's like 2 kg of potatoes, 1 kg costs £1, so 2 kg costs £2, it's scientific and just, it cannot be disputed. But we don't sell potatoes, lawyers. We suppose and we don't sell our time. We do sell our time, but it's not what the client wants from us. The client doesn't want, please sell me 15 hours of your time. No, the client wants a result from us, and if possible a good, efficient and fast result. And why is the system so perverse? The more inefficient and the slower the lawyers, the better he gets paid. And this we have in common with architects. In most countries, in Belgium, in France, I think in the Netherlands too, how does an architect get paid? Well, a percentage of the budget of the house he's supposed to build or to renovate, etc. So if I ask my architect, build me a house with so many floors, etc, etc, and he is very sloppy, is just not attentive to the budget, he gets 5% of a large budget. If he is a good architect and tries to find economical solutions and works very hard, he gets paid less. Same thing, I guess. Who is smarter than us, was forced to be smarter than the lawyers? The travel agents. Until a few years ago, how did they get paid, the travel agents? A percentage of the plane ticket or the car rental they were selling. And as you know, a few years ago, no more the airlines said, we almost don't pay commissions anymore. So what did they invent, the travel agents, in the system with their medium or large corporate clients? They agreed on a system, a double system, they are paid a fixed fee per month, or per quarter, it doesn't matter, and then every month or quarter the travel agent has a meeting with the financial director of his client and says, OK, I've sold you so many plane tickets and so many hotel nights, blah, blah, blah, see the official rate on the internet, the published rate is so much. Thanks to my work, my connections, I billed you so much. The difference, we split. What did they do? They did what Mnookin advocated in his famous book of 2001, I think, Beyond Winning, they aligned the interest. Well that's exactly what we, dear friends and colleagues, ought to do if you want to promote mediation. We should align the interest of lawyers and clients by being creative and finding contract or agreements between the client and the lawyer, where it's not so much the time spent that counts, but the quality and the speediness of the result to come. But for this we have a problem that probably psychiatrists could help us resolve, that might be the Judo-Christian heritage, we still believe that in order to make money, you have to work hard and long for it.
Example, one and a half minutes? One – I’ll speak fast. If you ask your real estate agent to find the house of your dreams and you describe it, and this real estate agent is a really great guy or girl and finds it, drives you immediately to the house and you fall in love and you buy it. Well, you'll be reluctant to pay him the 3% commission. If, on the other hand, the real estate agent shows you 59 houses before you find the one you like more or less, well you will have much less problem paying him the 3% because the poor guy or girl did work hard for it. And it's very hard for us to convey to the clients, yes and, last, I’ll finish my sentence, to convey to lawyer and client alike, the idea that it's not the amount of hours of work that should justify a reasonable or a good fee, but the quality, efficiency and speed of the result – still the same sentence – suppose this gentleman is owed by this gentleman £1000 and he asks me to recover it. If I bring him the money back in half an hour, I submit to you that I should be paid better than if I did 0 years of procedures to recover. Well that is exactly the message that I wanted to convey. Thank you.
Robert Smith:
Je vous remercie bien pour la vitesse, Avi. OK, onto Ronald if I may. Ronald is a consultant at CEDR, a solicitor, former partner, and now a consultant at Eversheds. He was accredited by CEDR as a mediator in 1993 and has a very wide mediation practice indeed. He graduated in law from Cambridge University, and specialised in litigation with his firm for more than 30 years. He was Managing Partner and subsequently Senior Partner of Wilkinson Marne, latterly Eversheds, until May of 2000. Since 1997 Ronald has been Chairman of his firm's ADR group worldwide, a member of the CEDR training faculty, and lectures frequently on ADR to a wide variety of largely judicial and legal audiences everywhere, that is to say the UK, EU, Eastern Europe, Far East and Africa. Ronald.
Ronald Bradbeer:
Thank you very much. And so to mediation advocacy. I just want to talk for a few moments about my thoughts on what is so important for those who represent clients at mediation and who need to use skills which are based on advocacy. And what I want to talk about is preparation, or do you fly by the seat of your pants? Any competent lawyer going to court will prepare, will prepare thoroughly, will know what they are doing, and they get there, they present well, they handle the story well and they come out hopefully with better results in court. So my key message is preparation, preparation, preparation.
And what are you preparing? Well, there are four Ws I want to talk about: who, what, when and why. First who. First prepare yourselves. Those of you who are mediators will be experienced meeting lawyers who are not prepared, they don't really know what they are going to do at mediation, they don't know the purpose, etc. Therefore you as a lawyer need to know what you are going to do. You need to know how to handle mediation, you need to know all about it, you need to be familiar, you need to be comfortable, and to demonstrate comfort and competence. Not just to yourself but to the second element of the whos, your client. Make sure your client knows what they are coming for. They need to know the purpose of mediation, they need to know its dynamics, they need to know the shape of it, and you need to make sure that your client knows that you're representing not just their legal interests, which is what we do when we are representing them in litigation, but also their business and maybe personal interests. In other words, you're looking at it in a wider perspective than you would normally when you go to court. You need to make sure that your team know what they are coming for.
One of the problems I've come across from time to time is that somebody will have a rogue member in their team, someone who hasn't had explained to them what they're going to be doing at mediation, what their purpose is, what the purpose of mediation is, and they can derail the process for that team. They can destabilise the client, they can destabilise the lawyer as a result. So make sure all the members of the team know why they are coming and what they are going to be doing and what the purpose of it is. And also, most importantly, demonstrate to your opponent. Demonstrate your competence, make sure that the opponent knows that you are competent, that you've got the appropriate skills, and by using a good service provider, I know we're sitting here with CEDR, they happen to be very good service providers in my view, but using a good service provider takes you away from the initial conflict in mediation which is, where are we going to mediate? I've got one at the moment. They can't agree whether it's London, Birmingham, Leeds, Sheffield, or Newcastle. They can't even agree that. All they do agree on is the date. And they are arguing and arguing, and it's hopeless. So using a proper provider makes sure that that sting is taken away out of the dispute to start with, and if you as a result are using a good service provider, they will make sure that you produce the right documents, and that they will have everything managed in good time, appropriately, to get the show on the road properly. And in the terms of teaching yourself and your client and the team what it's all about, don't hesitate to show them a video of a mediation. I actually within Eversheds from time to time actually do two or three hours preparation of role play with a client going to mediation, not on their particular scenario, because that will give them a mindset as to what the outcome could be, but on a totally different set up so they understand the process, they get the feel for it, and they go there knowing what it's all about. Spend time on it. It is worth while, it'll pay off, and you'll get better results, and I've got three minutes to go, thank you, Shelley.