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Mediation Boom? more and more corporate counsel are including mediation clauses in their contracts
21 November 2006In the November 2006 issue of the ABA Journal, an article appeared citing interviews with high profile in-house counsel where they emphatically stated that arbitration is no longer seen as such a desirable alternative to litigation and mediation was gaining in popularity. Gordon, Leslie A., “Clause For Alarm: As Arbitration Costs Rise, In-House Counsel Turn To Mediation or a Combined Approach,” ABA Journal (November 2006) pp. 19-20.
Alas, take heart mediators, you are marketing a very desirable service and companies that are guided by the powerful factor of the bottom financial line are taking notice.
As good marketers you know to focus on the benefits to the client of the service you are offering. For long term success and sustained credibility, however, the benefits touted had better match up to reality.
Take the much lauded arbitration benefits as cited in the ABA article:
“Traditionally praised for its flexibility, informality, confidentiality and ability to produce unique awards not traditionally available through litigation, arbitration took off alongside tort reform in the late 1980s and early 1990s. The practice became particularly popular among defendants facing a huge amount of litigation and seeking to limit risks inherent in the court system.”
Yet, after time with this alternative the experience has revealed some predictable and unanticipated downsides:
- High cost to enforce an arbitration clause in court. (I can recall during my litigation days drafting motions to compel arbitration and a common pricetag is at least $10,000 by the time briefing and oral argument is done).
- In-house counsel still have to hire outside counsel.
- Often times you have to pay three arbitrators whereas the judge is already paid for publicly.
- Some in house counsel see the arbitrator as more of a wild card than a jury since often only one person decides the case and more often than not they “split the baby.”
- There is no availability of summary judgment.
Thus, more and more in-house counsel are opting not to include arbitration clauses and according to the ABA article, they are now contracting for mediation in the first instance. Hurray you say and I do too.
David Vigilante, head of litigation at Turner Broadcasting System (and chief editorial counsel at CNN) was cited as an advocate for mediation noting the benefits of clearing up miscommunication, leveling of the playing field and the facilitated negotiation. Further Vigilante was quoted saying “I judge the success of mediation not by whether you settle or make a deal. If you make progress through mediation [such as narrowing of issues for arbitration, trial or later settlement] it’s a day well spent.”
A practical and broad definition of mediation success.
Another corporate counsel fan of mediation, Paul Adams, associate general counsel at the GAP in San Francisco handles employment disputes and uses mediation for all cases except those with completely frivolous claims.
He cited the benefits of mediation as a powerful process particularly where there is an emotional component to the case, plaintiff empowerment through the process and the ability to forge creative resolutions such as references and outplacement services.
Finally, Adams was quoted as emphasizing that he has had better results with mediation than court-ordered settlement conferences noting the skill of the mediators. “You realize there’s a skill to it. Judges don’t have the skill or the time to get [a deal] done… Mediators have a huge range of skill, and they’re demonstrating more and more skill in the employment area.”
Is this music to your ears, fellow mediators? The marketplace is recognizing that our profession provides an incredibily valuable service that helps them save time, money and potentially business relationships. Further, there is recognition and appreciation of the skilled practitioner.
Indeed if you provide value to your target market and help them solve their problems through a better process that saves time, money and relationships, people will take notice.
Focus on the benefits of mediation and your unique qualifications and flexible approach to help people solve their conflict problems.
I encourage mediators to approach business and workplace disputes at a common source or guiding force: contract drafting. Just as arbitration took off when corporate counsel began including mandatory arbitration clauses in contracts, mediation will continue to take off as more and more corporate counsel include mediation clauses in their contracts.
It is our job as mediators to educate contract drafters and those corporate counsel who aren’t as sophisticated as Mr. Vigilante of Turner/CNN and Mr. Adams of the Gap as to the benefits of mediation.
If one of your target markets is mediation claims stemming from any type of contract (employment contract, commercial contract etc.), make providing free presentations to your target one of your marketing strategies. Put together a compelling and entertaining talk about the benefits of mediation to corporate counsel, include “champions” such as those cited in the ABA article. There is power when leaders in the field (such as high level corporate counsel at large corporations) are advocating mediation. This sends a strong message to others at all levels of corporate culture — “there must be value in it, if CNN is doing it.”
Always aim to provide value to your constituents, ask what their challenges are and how you can best serve them. Continue to build on this positive movement of mediation as a cost effective, efficient and often healing process.
Be creative as you continue to get the message out there. The increased demand for our services benefits your practice as well as the consuming public in true win-win fashion.
NEVER GIVE UP!
Your Mediation Marketing Queen ™,
Kristina Haymes