USA – MISSOURI Trends and Developments Contributed by: Craig S. O’Dear, CSO Law LLC
analysis, but it provides a framework for counsel and client to address the problem. Mediation: become a student of mediation and a peacemaker “ Discourage litigation . Persuade your neighbors to compromise whenever you can . Point out to them how the nominal winner is often the real loser – in fees , expenses , and waste of time . As a peacemaker , the lawyer has a superior opportunity of being a good man . There will still be business enough .” – Abraham Lincoln Early in the author’s career, his focus as a trial lawyer was trying cases. He viewed the job not to resolve disputes but to win trials. Clients were like NFL own- ers. NFL owners selected quarterbacks solely to win games. He believed clients hired trial lawyers solely to win trials. He learned reality is a bit more nuanced in the world of legal services. Clients retain us to resolve their disputes and man- age their risk, effectively and efficiently. If the dispute cannot be resolved short of trial, then yes, they want a trial lawyer who can win cases. However, as the author observed early on, and has become increasingly the case, most cases are not tried. They are settled. And even most cases that are tried are not finally resolved until they are settled post- trial or while on appeal. Thus, the author learned, if he wanted to be known as a great trial lawyer, he needed to become great at obtaining favourable settlements. As the ancient Chi- nese general, Sun Tzu, taught, “ Winning one hundred battles is not the acme of skill ; to subdue the enemy without fighting is the acme of skill .” Do not wait for mediation Cases do not have to be mediated to be settled. Early in every case, the author tries to establish a relation- ship with opposing counsel that will facilitate an open and continuing exchange regarding clients’ respective positions and objectives. Almost without exception, the author lets counsel know he is always open to any ideas or proposals as to how a dispute can be resolved. But the writer sees in many lawyers a reluc-
tance to engage in direct negotiations and to default to the mediation process. For some time, the author was a reluctant participant in mediation. He thought it largely a waste of time, introducing a third party to do what counsel for the parties should be able to do themselves. Eventually, he came to realise that the reason most cases settle through mediation is that counsel are often unable, for a host of reasons, to effectively negotiate a set- tlement through direct negotiations. He increasingly saw settlement as a process, partly rational and partly emotional; a path that had to be travelled, by all partic- ipants. And he became persuaded that a knowledge- able and effective mediator could be an important, even an indispensable, part of that process. So, he decided to become a student. He enrolled in a week-long programme at the Straus Institute for Dispute Resolution at the Pepperdine School of Law. The programme – Mediating the Litigated Case – was new. It was training for practising lawyers to teach them how to become more effective representing their clients in mediation. To become more effective in achieving your client’s objective in mediation, you must become a student of mediation. Learn the pro- cess. Learn the concepts and techniques. Understand how it works, or at least how it can work. Mediation is not litigation Litigation necessarily involves conflict. It is adversari- al. Mediation, done well, requires more of a problem- solving approach. One requirement that remains common to both endeavours, however, is you must be prepared. You must know the facts, and the legal issues in your case. You must have a thorough understanding of the legal claims and defences and be prepared to persuasively discuss their strengths and weaknesses. Objectivity is important. Critically evaluate your case and know the strengths of your opponent’s case. Dec- ades ago, a trial lawyer who had tried dozens of cases explained to the author a key insight. He observed that the best case you will ever encounter still has, at best, an 85% chance of winning. Conversely, the weakest case you will ever see, if it survives summary
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