Mediation Notes readers are now receiving the Mediation Minute. Readers of Mediation Notes may know that I retired from litigation to focus exclusively on providing mediation services and education. Mediation Notes had a wonderful following while I was at Marshall Dennehey and this new publication from Henry Mediation (www.henryadr.com) will continue to offer lawyers, clients, and mediation participants insights into the mediation process through the eyes of a mediator. You will now find more time on the calendar to secure dates for mediation services and education. See www.floridamediators.org/David-Henry.
We hope by this publication to continue to “cast light on the dark art of mediation” and provide mediation services and training under Henry Mediation, P.A. My firm now offers one to four-hour mediation training and CLE programs for law firms, bar organizations, and carriers.
As I complete 12 years as a certified mediator and as trials become less common it strikes me that lawyers seeking to sustain a “trial practice” with fewer trials will better serve clients and sustain a law practice by looking for new opportunities to serve clients in a different way. Having litigators involved in contract drafting is one such area where the mind’s eye of a seasoned litigator can spot the “what ifs” in language that is imprecise or leaves too much unresolved to provide a durable deal. I never felt as a litigator particularly qualified to draft, for example, a commercial lease, or a buy-sell agreement, but as an experienced litigator I felt that the transactional attorneys sometimes included language that was ambiguous or for some reason had opened the door to later litigation. Sometimes the language makes sense to the parties but from a litigator’s eye spells trouble. When I was asked in the past to review contracts where problems were brewing, I was not infrequently surprised to find not only problematic language that needed tweaking but the absence of presuit mediation or arbitration clauses to create a vehicle for clients to communicate before suit need be or can be filed.
My experiences as a mediator talking to litigators where no presuit ADR provision was present, crystallized my thinking about the origin of many business disputes. With no ADR provision in an agreement, one side or both will frequently tell me during mediation and in private caucus they had no opportunity to talk to the other side. Ironically Plaintiffs will carp they had no choice but to sue to garner the attention of the other side. Defendants will complain they never felt they were given a fair chance to address the problem. Perspective is a funny thing. Litigation does accomplish one thing – somebody must take notice and defend. At its core a presuit ADR provision creates or in effect mandates that one side or both communicate with each other which is key to resolution.
Trying to resolve a conflict early in the life of the problem may seem to counsel like ordinary work, but this is the best present you can give the client. Harmony, peace, and freedom from conflict are intangible presents not always fully appreciated – particularly for those clients who think litigation is inevitable and justice will be had. A well-drafted prescriptive ADR provision created by the mind’s eye of a seasoned litigator is ink well-spilled and affords litigators a chance to convey the benefit of their experience in contractual terms.