by Bradley Parsons
Staff Writer
Lawyers typically measure success in wins and losses. But in an era when cases can cost hundreds of thousands of dollars to try and millions to lose, attorneys are increasingly turning to mediation, forgoing the thrill of victory to avoid the agony of defeat.
Money is just one factor driving mediation’s rise as an alternative to trials. The approach is cooperative instead of adversarial, making it a calmer environment to settle emotionally-charged cases involving divorce, child custody or personal injury.
“It’s a different mindset than a lot of attorneys are used to,” said Brett Lucas, a partner at Saalfield, Shad, Jay, Lucas & Stokes, who also has a growing mediation practice. “Attorneys are trained to advocate, to argue their side. But mediation forces you to understand where the other side is coming from. You understand there are going to be differences and that you’re going to have to work through those issues.”
Florida statutes define mediation as a process where a neutral third person shepherds two or more conflicting parties to a resolution. Mediators for civil cases must have five years experience practicing law and must be trained and licensed.
According to the Florida Dispute Resolution Center in Tallahassee, mediators reviewed more than 120,000 cases for state courts in 2001 compared to about 5,000 cases decided by civil trials. In Duval County, every civil trial must first go through mediation.
Many local attorneys used to view mandatory mediation as a formality to get through on their way to trial, said Jim Cobb of Peek, Cobb, Edwards & Ashton. But firms now understand the value of the process.
A trial is a coin flip, he said. Mediation can help solve a complicated legal dispute quickly, saving all parties from the time and expense of a trial. Sometimes, even a win at trial can be costly when it forces both sides to relive what was often a painful ordeal.
“I tell my clients that the worst settlement is better than the best trial verdict,” said Cobb. “It can be a very painful experience to recount the death of a loved one or to fight over custody of a child.”
For those cases that move on to trial, mediation can still help frame the legal issues and set a ballpark figure for possible monetary damages. Trials often owe their eventual settlements to the groundwork laid at mediation, said Lucas.
“I think it allows a more objective analysis in cases where you’re trying to figure out the value of pain and suffering. It can temper expectations in a lot of situations,” he said.
With experience as both a plaintiff and defense attorney, Lucas believes he has the ideal resume for a mediator. He looked at mediation at first as a complement to his legal practice, but he now divides his time evenly between them.
Lucas said lawyers are increasingly looking to become mediators. Unlike trials, mediation doesn’t require months of preparation. The hourly rates charged by mediators are set by the market. But a mediator in high demand can charge as much per hour as a lawyer at a corporate firm, he said.
The key to generating that demand is credibility. A successful mediator must have the trust of both sides. Guiding adversaries toward common ground doesn’t work unless both sides think it’s in their best interest to follow.
“Mediation is more art than science,” said Lucas. “Sometimes you have to push, sometimes you have to back off. The process is based on trust. Both parties can develop trust between them if both sides trust the mediator.”
Lucas doesn’t see any down side to mediation, but Cobb has some concerns. In his view, lawyers don’t get enough trial experience and the prominence of mediation and settlements is a big reason why.
“It is a mixed blessing. In getting rid of a lot of cases, mediation performs a necessary service for the state’s overworked courts,” he said. “But it’s hard to find a young lawyer with a lot of trial experience and mediation is what’s doing it. If cases don’t go to trial, lawyers don’t get a chance to try them.”
Law schools have recognized the shift. The University of Florida offers a class that puts students in a mediation clinic for a semester. The students serve as mediators for small claims and Alachua County Court cases. Professor Alison Gerencser said admission is competitive for the eight seats in the mediation class.
“Law students know they’re not going to be trying cases,” she said.