(Fireworks by Lisataime)  

There's a nice article on those situations in which attorney-mediators might serve litigants as well, or better, than former jurists in the July 2 edition of Lawyers Weekly ADR (give them your name, rank and serial number and you'll get a free 6-week trial to see whether a subscription is worth the price).

The article is entitled Advantages Flow Both Ways When Attorneys Become Mediators and it is written by attorney-mediator F. Peter Blake /*.  

Except below:     

 

A lawyer with extensive courtroom experience is able, as a mediator, to understand and communicate the risks of mixed-blessing jury findings that give with one decision about a monetary award and take back with another that slashes the amount because contributory negligence was perceived.

To be sure, in court, even when you win, you don't always come away with what you thought you had won.

In the ADR process, parties often hear the "other side" of the case for the first time. It reinforces a humbling truth worth remembering: Very rarely does one side have a monopoly on valid arguments.

Just as important is the mediator's ability to avoid undercutting attorney-client relationships or compromising legal strategies. A knowledgeable lawyer is well positioned to navigate that sensitive course, respecting each side's need to avoid feeling coerced or backed into a corner.

The ADR process provides an open forum conducive to helping the parties involved in a dispute address the issues in good faith, explore acceptable remedies and shape the outcome. That sense of self-determination and of having a timely "day in court"— without gambling on six jurors unfamiliar with the issues — greatly increases the likelihood of satisfaction in the end.

When lawsuit adversaries emerge with an acceptable agreement they shaped after being heard by a dispassionate observer retained at their shared expense, justice is served. Sometimes the deal goes beyond dollars and cents to include an apology or expression of regret — a meaningful gesture no jury can provide.

Though I agree with Blake's analysis of the benefits of hiring an attorney-mediator, he writes primarily from an evaluative rather than a facilitative viewpoint.  I would therefore add the following to his list, particularly where the settlement being negotiated is one necessary to settle commercial litigation.  

• because most attorneys have run their own businesses (or at least participated in the management of their law firms) they are able to understand the business needs, desires, interests and fears of the commercial adversaries, i.e., they can speak the litigants' language
• former commercial mediator litigators, particularly when hired in a specialty industry such as the garment, manufacturing, professional services, and software  businesses (to name a few) also understand the complex relationships between counsel and client, as well as the communication gaps that can occur over time during the litigation of any commercial case. 
• the experienced attorney mediator not only knows how the lawyer views the case, having now mediated hundreds of commercial cases, s/he also knows how the clients continue to view the dispute (as a commercial, not necessarily a legal, problem) and how wide the gap between those two points of view can be. 
• because the attorney-mediator first made his living in private practice based upon his continued beneficial relationship with his clients and his reputation in the community, s/he is not only attuned to the way in which lawyer-client communication gaps can be bridged, but also how to leave both parties with their sense of justice, dignity, professionalism and humanity intact.
• perhaps most importantly, a commercial litigator-mediator knows how to plan, execute and close a deal.

There are more, but I must leave you to begin my holiday.

Happy 4th of July to you all!

________________________

/*  Blake is a certified general civil mediator and founding partner at Detroit-based Blake, Kirchner, Symonds, Larson, Kennedy & Smith, P.C. His more than 25 years of experience includes mediations, facilitations, arbitrations and special case evaluations as well as representing plaintiffs and defendants in a range of civil litigation matters.