What old-school trial lawyers really think about mediators

what trial lawyers think of mediatorsThe latest issue of the ABA Journal, the monthly magazine of the American Bar Association, just arrived in my mailbox. The cover story profiles “Lions of the Trial Bar” — attorneys over the age of 70 who have indelibly left their mark on the American legal system.

Conjuring up the acrid smell of cigar smoke and the clink of glasses filled with single barrel bourbon, the article pays nostalgic tribute to the heyday of the trial lawyer — the palmy days before trials started vanishing (and, judging from the photos of those featured, before women and people of color were better represented at the bar).

Here’s what one of these old lions had to say about mediation, which I present to you in all its unexpurgated glory:

They’ve invented this new term, litigator. What the fuck is a litigator? I’m a trial lawyer. I try cases. There are some lawyers who do nothing but this mediation bullshit. Do you know what the root of mediation is? Mediocrity!

And as for ADR generally?

The move to replace jury trials with mediation and arbitration, he says, is actually an effort by elitists in our society to control how disputes are decided.

4 responses to “What old-school trial lawyers really think about mediators

  1. Mediation and arbitration are ALTERNATIVE dispute resolutions to litigation. Litigation is an ALTERNATIVE dispute resolution to violence. If civility is elitist, I’m happy to be a member of the “high elite”.

    Further, the root of mediation comes from latin and means to be in the middle or to intercede. Isn’t that what judges, juries and courts do in litigation? So, is that process mediocre as well by his logic?

    I guess some people just don’t like being in the 21st century. Mediation is the new way to resolve disputes. Isn’t that why clients hire attorneys in the first place, to resolve their specific problem(s)?

    He also seems to forget that mediation and arbitration are voluntarily entered into. People do so (including his contemporaries in the bar) because they see a value in it.

  2. It must be exhausting for mediators as individuals and as a profession to have to keep coming up against this kind of attitude.

    I would like to think that the offensive views expressed within the Journal are generational. Unfortunately I see no evidence that it is.

    I also worry that the tough times many law firms are facing, both in the USA and over here in the UK, will only increase such defensive opinions as firms may be tempted to hoard those clients who just happen to fall across their firm as a gateway to the dispute resolution marketplace.

    What is the mediation world’s experience? Are clients turning increasingly to mediation or are they being increasingly deterred from it?

  3. Alasdair Reed

    There was a time when many disputes were settled by blood-feud, that didn’t quite meet the needs of societies who wished to progress and build a productive civil society. So, on to the duel, the killing or injuring of one to settle the matter, rather than generations of conflict and death. Again needs not met. Enter the court room where disputes are DECIDED (in the end, by a judge or similar) but not necessarily RESOLVED according to the needs of the disputants. To meet this need mediation arose. It would not have arisen if there was not a need for it. All methods still exist and are in use concurrently today and no doubt will contue to be so. Members of the ABA might like to consider, in the light of the following quote,
    “Whenever a trade association raises the barricades and tries to lobby their way into maintaining the status quo, they are doing their members a disservice.instead of spending time insight and effort reinventing what they do and organizing for a better future, the members are lulled into a sense of security that somehow, the future will just like today.” Seth Godin http://sethgodin.typepad.com/seths_blog/2009/03/beware-of-trade-guilds-maintaining-the-status-quo.ht
    what their organisation is attempting to do for them in changing times, and how this may reflect upon the profession by the publishing of such opinions in a prominent way.

  4. Does make me wonder why I bothered to call for an end to the hostilities last week

    Marvin, I’m with you, then count me among the elite. Ironic, really, when you stop to consider that mediation here in the U.S. has deep roots in community activism and social justice movements, providing an alternative to establishment-style dispute resolution.

    Neil and Alasdair raise great points here, and I’m pleased to see those outside the U.S. share their perspectives. These old-school trial lawyers seem to think it’s not true negotiation until someone else’s blood and guts are spilled in the sand of the arena. Must be scary for old dinosaurs to hear the roar of a meteor hurtling straight toward them.

    We’d all do well to heed Seth Godin’s words. (Mediators, too.) I thank you for invoking them, Alasdair.

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