If we are fortunate, mentors await us along our path, reaching out a hand to guide us when the road grows rocky or shining a light on the way ahead. Later our lives lead us miles and years from our own beginnings. In keeping our eyes on the path ahead, it’s easy sometimes to forget to look back and remember the ones who steadied our steps.

I received an email this week that reminded me how important it is to stop and look back, to recall our mentors and the difference they made to our work and our lives. The email was from my friend Ericka Gray, who shared with her colleagues reflections and memories on learning of the death of a champion of ADR and justice, whose wisdom and encouragement influenced the direction of Ericka’s own life. I thank Ericka for allowing me to share her message with a wider audience:

Dear friends and colleagues;

I just learned of the recent death of my first mentor in the field of ADR, retired judge Martin L. Haines. I wanted to share my knowledge of him with you.

He taught me to always challenge the status quo when the status quo wasn’t good enough and to always question things that I thought needed questioning. At my interview to become the director of the 4th multi-door courthouse in the US, he asked me what I thought my job might be. I responded, after having listened to his ideas, that it was to challenge the court system to do better and to make people think about things differently. I was hired even though I wasn’t a lawyer, as the job supposedly required. After working for him for several months, I revisited the question of my job and told him I thought that it was my job to cause some sort of trouble at least weekly. He smiled, thought for a moment, and said that he was inclined to agree. His eyes sparkled as he added that he often caused trouble and it seemed that he had the most fun when he was doing so. Since he wrote many controversial decisions and was known to routinely be questioned by those above him, he truly enjoyed what he did! I resigned when he announced his retirement since I couldn’t imagine working there for anyone else.

Judge Haines was an incredible man who had the respect of all, even those who didn’t agree with him. He was truly a gentleman. I will miss him. He has left an indelible mark on my soul and encouraged my passion for pursuing justice in both process and outcome for all. I wish that you all could have known him.

Is there a mentor you’d like to thank? Let them know while there’s still time.

Giving whole new meaning to the phrase “you be the judge”, People’s Court Raw invites anyone with a dispute and a video camera to upload their argument, notify the “defendant” by email, and then let the web-surfing masses vote on who’s right.

Boasting that People’s Court Raw “is the ultimate democratic tool”, spokesperson and media personality Harvey Levin (no relation) urges visitors to “let the world finally prove you right…” with this “ultimate argument ender”.

As of this posting, cases include a dispute over a boyfriend’s back hair; a workplace quarrel about a co-worker who belches; and a domestic spat that results when a husband can’t get to sleep because his wife snores.

Hat tip to Colin Rule.

Andrea Schneider at ADR Profs Blog is wondering whether there’s a “Crisis in Dispute Resolution?”

This past weekend, the Graduate Program in Dispute Resolution here at Marquette hosted noted scholar Bernie Mayer. Bernie was mostly speaking about his book, Beyond Neutrality and, on Saturday, was invited in a point-counterpoint format to discuss his arguments with equally well-noted practitioner Howard Bellman. One point of the discussion was about Bernie’s argument, outlined in his book, that the dispute resolution field is marginalized in the most important disputes. In other words, in the biggest crises of the day and over the biggest problems (think war, state of the economy, etc.), the dispute resolution field does not generally have a seat at the table…

Andrea wants to know what the blogosphere makes of all of this:

Are we marginalized? Should dispute resolution professionals be called on more often in public policy and international disputes? Should we just get over ourselves–we are called on when we are needed? Let us know what you think!

Come join me in the discussion and tell Andrea what you think.

Our local Whole Foods Market carries a brand of high-end chocolate bars in assorted flavors which boast a variety of exotic ingredients, including — I am not making this up — smoked applewood bacon. In so many ways, that’s just wrong.

Let me set the record straight. I like chocolate. And I love bacon. In fact, a lot (which doomed my brief flirtation with vegetarianism).

Bacon pairs well with lots of food. Chocolate doesn’t happen to be one of them. See, no matter how good something may be, it’s not a perfect match for everything.

Despite the fact that I’m a professional mediator, it’s also one of my concerns about alternative dispute resolution. Like bacon with chocolate, it’s not always the right choice. But some in my field are convinced otherwise.

While attending an ADR conference a few years ago, I struck up a conversation with a fellow mediator. He chastened me when I used the phrase “alternative dispute resolution”. “No,” he corrected me, plainly insulted, “it’s not just an alternative, it’s appropriate dispute resolution — not like litigation, which is never appropriate, as far as I’m concerned. I want people to think appropriate instead of alternative when they hear ‘ADR’.”

Unfortunately the workshop I was leading was about to start, so I left without a chance to tell him what I thought. That was probably a good thing, since I was about to offer an impolitic response. What arrogance, I thought to myself, how can anyone insist on the absolute appropriateness of private resolution for all disputes? It’s like treating every disease with antibiotics regardless of the cause or the symptoms.

That mediator is not alone in thinking this way. Some mediators, I know, think that “alternative” marks ADR as inferior or third-rate — litigation’s red-headed stepchild. Google the phrase “appropriate dispute resolution”, and it’ll return over 20,000 hits. Frequent use has begun to legitimize it. This is no cause for rejoicing — not when you stop to read the legitimate criticisms leveled against ADR and overzealous ADR practitioners, or consider the reminders of the value and role of litigation. It becomes harder and harder to insist that the “A” in ADR should mean “appropriate”.

Over the years I’ve thought often about that conversation. I thought of it when I read Victoria Pynchon’s article, “Paternalism, Self-Determination and the Rule of Law“, which recounted an incident at the recent Mediators Without Borders conference:

[S]omeone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand.

“Why,” I asked, “do you want to restrict our clients’ access to the justice system?” once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator.

It wasn’t a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.

It’s time at last to reclaim or insist upon “alternative” as the “A” in “ADR”. Among other things, “alternative” means “choice”, “one of several possibilities”. This notion of choice comports with ADR’s history with its roots in legal reform and other movements which sought to increase, not decrease, the choices available on the road to justice. Pioneer Frank Sander, while envisioning the multi-door courthouse with its many entrances leading disputants to the process fitting best their dispute, never intended that the door to litigation be closed. In delivering his 1976 paper, “The Pound Conference: Perspectives on Justice in the Future”, he reminded his audience of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

The lack of choice which ADR’s modern offspring have produced runs contrary to the promise of choice that once distinguished ADR. Let’s put the “alternative” back in ADR and let people choose for themselves what’s appropriate — whether to arbitrate or mediate — or, yes, to litigate.

An article in this week’s Massachusetts Lawyer’s Weekly asks, “Retiring judges have always flocked to ADR. But do they make the best neutrals?” While judges may make great arbitrators — a role which is essentially judging in a private forum — whether they make good mediators is a whole other story.

ADR legend Frank Sander, interviewed for the article, had the following observations:

“Arbitration is private judging, so I think it is very natural that judges would want to become arbitrators, and they generally do a good job,” says Frank E. Sander, a Harvard Law School professor who is considered a pioneer of ADR for his work studying the topic over the past three decades.

But mediation is a very different process, and Sander questions whether judges can step down from the bench and instantly be “competent [as] mediators without further training.”

“True mediation — and I don’t mean settlement activity by judges — is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution,” he says. “You’re not assessing fault; you’re trying to find a mutually acceptable resolution.”

If a lawyer is looking for a competent mediator, he should not assume that a judge is that person, maintains Sander. In fact, he says, “you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that. … Mediation is a future-oriented process, and court and litigation are past-oriented processes.”

My friend Geoff Sharp, a New Zealand barrister and mediator, weighed in on this issue a year or so ago with “Great on paper, crap at the table“. Geoff linked to an article by mediator Jeff Kichaven, who recounts his experience at the 2006 American Bar Association Section on Dispute Resolution conference with a general counsel who didn’t seem to appreciate the difference between mediators and judges. Kichaven distinguishes the role of the judge from that of the mediator:

Critically, the skills of the professional mediator are completely different than the skills of a judge. The job of the judge is to judge others. The skills of a judge serve a system where juries of strangers follow preset rules and make decisions that are supposed to be consistent and predictable. Judges, therefore, master rules of evidence to restrict conversation and help juries reach these consistent, predictable results. Hearsay, relevance, opinion—these and other limiting rules focus the jury on legally-germane issues and consistent results. Skilled application of these rules is necessary for the professional judge.

Mediators are unshackled from that system. The job of the mediator is not to judge at all. The mediator’s job is to stay curious and leave decision-making to the parties themselves, based on their own standards. Results are individual, spontaneous, and sometimes quite unpredictable. So mediators and judges direct conversations differently. Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

Kichaven then adds,

Being a good mediator, therefore, has very little to do with having been a good judge. Frankly, it also has very little to do with having been a good lawyer. Just as there are a lot of former judges who are lousy mediators, a lot of former lawyers stink at it too. Additionally, there are excellent mediators who never even went to law school, much less served on the bench. The quality of a mediator depends on the ability to take the litigating lawyers’ own evaluations of cases and test whether, in the eyes of the clients, those evaluations make sense logically, feel right emotionally, and seem doable practically. When those tests are met, cases will settle.

…

Some former judges have taken the training, gained the experience, and joined the mediation profession. Many others rest on their laurels, on the “weight of the robe” and the “force of the gavel,” and cannot go beyond the raw evaluations that good litigators already know. If all you are looking for is the ability to call back to a boss at the home office and say, “Judge X told us the case is worth Y dollars,” maybe you don’t need a professional mediator. But sophisticated users are left flat by this two-dimensional approach.

As someone who has trained a number of judges over the years to be mediators, I couldn’t agree more with both Sander and Kichaven. Just because you were a judge does not mean you’re going to be a great mediator.

Judges, far more so than others, struggle in mediation trainings to grasp the concepts and put a mediator’s skills into practice. That’s not surprising. With a lifetime of experience judging — and being good at it, too — it’s difficult for them to assume a wholly new and unfamiliar role.

Can a judge be a good mediator? With training, mentoring, talent, and aptitude, the answer is yes. But without training? No way. But this is true of anyone, not just judges. No one — and I mean no one — is automatically qualified to be a mediator by virtue of their profession of origin.

It’s not just credit card companies, nursing homes, telecom giants, and a Texas burger franchise who are jumping on the mandatory arbitration bandwagon.

According to Condé Nast Portfolio.com, one BigLaw firm has instituted mandatory arbitration for all its at-will employees.

Who will be next? Mediators?

Let’s hope not.

Football now joins the growing list of informal alternative dispute resolution methods, along side arm wrestling and perennial favorite rock, paper, scissors.

Facing South reports that one Tennessee lawmaker has proposed using a football game to settle a border dispute over access to water between Tennessee and Georgia.

Richard Susskind, digital technology expert and legal visionary, once said, “The best way to predict the future is to invent it.”

That’s exactly what Charles Brofman did. He invented the future.

Brofman, a former trial lawyer, is the co-founder of Cybersettle, the world’s leading online claim settlement company. Cybersettle makes use of what is known as online dispute resolution (ODR), a kind of dispute resolution process that utilizes digital technology to settle claims quickly and economically.

In 1996, Brofman had the foresight and rare common sense to create Cybersettle. What sparked this vision? A situation familiar to any trial attorney or mediator who has wrestled with a case that just won’t settle:

Cybersettle grew out of a 1995 encounter between seasoned trial attorneys Charles Brofman and James Burchetta who were representing opposing sides in attempting to settle an insurance claim. Jim, who in this case was representing the plaintiff, had demanded tens of thousands of dollars more than the amount Charlie, the defense counsel, was willing to offer. Both parties were well aware of what amount would eventually settle this case, but neither wanted to compromise his bargaining position – so on to court they went.

In the courthouse, they agreed to secretly write down their bottom line numbers and hand them to a court clerk, who was instructed to give them a “thumbs-up” if they were within a few thousand dollars of each other. If the case didn’t settle, the clerk would destroy the papers and never reveal the figures. He flashed a “thumbs-up.” The amounts were within $1,000 of each other. They split the difference and settled the case within minutes.

Cybersettle was thus born of the desire to help lawyers and others accomplish what sometimes can feel like the impossible: get cases to settle fast and fairly.

So, how does Cybersettle work?

Cybersettle utilizes a patented automated, online, double-blind bid dispute resolution system which allows disputants to resolve claims quickly and confidentially. Optional telephone facilitation is also available when necessary to smooth out communication difficulties and keep settlement negotiations on track, or when parties are close and can benefit from the help of a skilled neutral.

The online service generates high-speed settlements by matching offers and demands. Once the process gets underway, disputants have three opportunities or rounds to settle a claim. One demand or offer is entered for each round; Cybersettle instantly compares the demands to the opposition’s corresponding offer. When the offer is greater than or equal to the opposition’s demand, the claim instantly settles.

Who uses Cybersettle? And why?

Cybersettle has many satisfied customers, as its case studies testify, and has assisted in almost 200,000 transactions, representing $1,457,299,751 in settlements to date, an impressive figure.

Among those who use Cybersettle are attorneys and other legal professionals; insurance carriers and claims professionals; third-party administrators and self-insureds; and government, including municipalities.

But why would they use Cybersettle?

New York City has 11.6 million reasons why. That’s the number of dollars the City saved during its first year using Cybersettle. Faced with a backlog of 40,000 cases, the City needed to take drastic steps. The first city to integrate Cybersettle into its settlement process, New York was able to settle 66% of its cases within 30 days, reduce its backlog significantly, and realize significant cost savings.

For its clients, Cybersettle is virtually a no-risk proposition. The double-blind bidding means that parties can submit their walk-away numbers without compromising their position. This means that there are none of the worries associated with making first offers or other pitfalls of face-to-face negotiation. Most importantly, parties don’t pay unless they settle. I’ll say that again. Parties don’t pay unless they settle. What’s not to love about a system like that?

Speed and 24/7 access — much like an ATM or your favorite convenience store — are other qualities that make Cybersettle so appealing. Trained phone facilitators are also available during normal business hours if parties need the extra nudge to cross the finish line.

Curious to find out how it works? You can take Cybersettle for a test drive.

Final thoughts

Incidentally, Brofman’s talent for predicting the future is not limited to digital technology. Not only did he see the future in ODR, but on a phone call with him back in January, he correctly predicted that the New England Patriots would play the New York Giants in the Super Bowl and that the Giants would win. This is one guy who’s skilled at looking ahead.

Interested in finding out more about Cybersettle? Visit Cybersettle’s web site. And if you’d like to learn more about the brave new world of technology-mediated dispute resolution, read “Settling It On the Web“, an article from the ABA Journal which provides an excellent introduction to ODR.

You read that headline right.

No, we’re not talking about dispute resolution professionals mediating naked.

It’s actually dispute resolution for fantasy sports disputes. From the SportsJudge.com site:

In today’s high paced, intensely competitive world, the constant strive for professionalism in fantasy sports is hardly uncommon. Despite this, no one is perfect, and problems do occur. With that in mind, SportsJudge prides itself on providing the most avid and intense fantasy gamers with a dispute resolution method to make sure each and every problem eventually ends with a proper solution.

There’s even a SportsJudge blog.

Hat tip to odr.info for the link.

In June 2006, I launched The World Directory of ADR Blogs at www.adrblogs.com as part of my ongoing effort to track and catalog the slowly growing number of blogs discussing dispute resolution, negotiation, and innovations in law and justice.

It’s a project that has put me in touch with dispute resolution professionals, scholars, and students around the globe and has shown me the many faces of negotiation and ADR across time zones and cultures.

Despite the fact that I created the World Directory to showcase ADR blogs and podcasts, oddly enough ADRblogs.com was not a blog itself but a regular web site. That was a shortcoming that I have at last remedied.

The World Directory of ADR Blogs is now at last a blog all its own, which has made for some much-needed improvements. It’s made it easier for me to update the site and manage all the categories that the listings are organized around. It also means that you can subscribe to its RSS feed or receive email notifications whenever a new site gets added.

The site now includes a search feature on all pages so that visitors can easily locate a listing, as well as a Google Translate My Page tool to make the site friendlier for visitors who speak languages other than English. In the left sidebar you’ll find a list of categories and countries, while in the right sidebar is a list of the 8 most recent additions.

Among those new additions are three blogs well worth reading — the memorably titled mediation meditations by New York attorney and commercial mediator Christian Herzeca, Civil Negotiation and Mediation (a blog that puts the “civil” back in “civil litigation), published by attorney and mediator Nancy Hudgins of California, and the excellent Negotiation Guru, by Jens Thang.

If you publish or know of a blog that should be added to the World Directory, please let me know. It’s a commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and some simple submission guidelines.

I hope you’ll stop by the World Directory of ADR Blogs and take a look for yourself. You’ll find a popular feature I kept from the old site — the Reading Room where you can scan the headlines or read the content of the blogs listed at ADRblogs.com.

Enjoy!

Fellow mediation blogger Victoria Pynchon and I are both really excited to learn that leading dispute resolution scholar Carrie Menkel-Meadow is a guest blogger this month at Concurring Opinions (covering “the Law, the Universe, and Everything”).

Readers of this blog will no doubt recall this post linking to a recent article by Professor Menkel-Meadow, which raised an important and timely question for the ADR field — “Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections” (downloadable in PDF).

Visit Concurring Opinions to learn more about Professor Menkel-Meadow and her contributions to both ADR scholarship and the practice of mediaton.

Several months ago someone tried to post one of those unwelcome comments that all bloggers receive from time to time. With plenty of full capitalization for emphasis, and with attacks on my character and personal habits thrown in for good measure, the writer accused me, among other things, of undermining the rule of law simply because I happen to be a mediator. Since I allow attacks on ideas only not on people on this blog, I hit “delete”.

I have remained haunted however by the concern this person raised. Were they right–does ADR weaken the rule of law?

I have written critically before of ADR’s two-edged nature and encouraged my fellow ADR practitioners to consider with care their responsibility to the public and to our institutions of justice.

Of course we as a profession should ask ourselves these kind of questions. Does ADR undermine the rule of law? If justice is the end, is ADR the best means?

Fellow mediator Victoria Pynchon, who publishes Settle It Now Negotiation Blog, is inviting readers to complete a Survey on Justice that asks important questions about the complicated relationship among fairness, justice, and ADR processes:

Are we as mediators in the business of delivering justice or simply final resolution?

Do the attorneys and/or clients who use our services want us to be in the business of delivering justice (or enabling it?) when we help them resolve a dispute?

Vickie has already reported some preliminary results, including some fascinating findings on the qualities attorneys look for in mediators. It also looks as if by a narrow margin respondents would rather win in an unfair process than lose in a fair one. (Which may mean there’s little life left these days in the old maxim, “It’s not whether you win or lose, it’s how you play the game.”)

One day remains to complete the survey.

On a related note, seekers of justice may wish to read “Is Alternative Dispute Resolution Consistent with the Rule of Law?” by Jean Sternlight, Michael and Sonja Saltman Professor of Law and Director of the Saltman Center for Conflict Resolution, University of Nevada, Las Vegas.

Sternlight asks,

What is the relationship between alternative dispute resolution (ADR) and the rule of law? In the United States, critics often argue that the informal, private nature of ADR is hostile to the rule of law–and ultimately to justice itself. Yet over the last ten years, a broad, international array of groups has advocated including ADR in projects designed to foster the rule of law in other countries. This Article explores the paradox. Have we erred in condemning ADR domestically or in promoting it internationally? Or does the desirability of ADR depend upon the nature of the system in which it is being utilized? By studying this paradox, we can enrich our understanding of the ultimate purposes of both ADR and the rule of law, and thus assist our search for justice.

This article is accessible for the time being, I regret to say, only to those with access to Westlaw. While an increasing number of articles by legal scholars are available for free on the internet, some still remain beyond reach, hidden behind password-protected gateways–in my view unfortunate. An abstract of the article is available at the Social Science Research Network.

American lawyers by now may be inured to media attacks on the legal profession. We expect it from Fox News. But this week lawyers drew fire from an unexpected source: a National Public Radio broadcast.

On Point, a week-day radio news magazine produced by NPR member station WBUR in Boston, broadcast a show this week titled “Verdict on American Lawyers“. From the show’s description:

America’s legal profession is based on ideals: on standards of education and admission to the practice, ethics regulation, a disregard for commercialism and on working on behalf of the public good. The legal system is rooted in the belief that all should have access to justice. But Yale Law Professor and legal historian, [sic] says it’s not so. The profession is hardly professional anymore. He says lawyers today are out for their own economic self-interest…

Instead of providing what could have been a rich discussion about the present and future of the legal profession, with points and counterpoints from a spectrum of voices, On Point succeeded in reinforcing for its listeners virtually every negative stereotype that exists about American lawyers today. It perpetuated the myth that all lawyers work for large firms on behalf of shady corporate interests and are members of an Ivy-educated elite motivated solely by self-interest and greed.

The show’s greatest defect was its failure to accurately and fully depict today’s legal profession in all its diversity. This one-sided portrayal of a legal profession in moral decline ignored the numerous efforts that have contributed to the improvement of law and the institutions that serve it. And it disregarded the movements within the profession that seek to deliver justice better and provide effective mechanisms for the resolution of disputes.

There are plenty of attorneys today who are trailblazers, breaking new ground through movements like collaborative law and restorative justice. These attorneys are bold architects of new ways of serving the public and justice better.

And how can a show that purported to examine the legal profession and access to justice fail to discuss one of the most important revolutions in the courts and in the practice of law: the widespread availability and institutionalization of alternative dispute resolution?

As an attorney who no longer practices traditional law but has spent the past decade as a mediator helping people resolve disputes both within and outside of the legal system, I have many colleagues in the bar who are committed to these kind of innovations in the practice of law and the resolution of disputes. Many are outspoken advocates of these new ways of thinking and work to transform and reinvigorate the practice of law.

Many of them strive to illuminate for the legal profession as well as the public the art and creativity within the practice of law and to help attorneys reclaim the dignity and meaning in what is still an honorable profession.

You may hear “Verdict on American Lawyers” in a number of formats at the On Point web site and judge for yourself.

Recently I looked at why the world–or least America–has not yet gotten to yes. I described the cultural forces that resist mightily the logic and common sense of principled negotiation and are deeply distrustful of peacebuilding, collaboration, and dialogue.

I offer you yet one more example: a transcript of right-wing radio talk show host Rush Limbaugh’s comments on a recently released study on workplace bullying.

Here’s a sample–and it’s classic Limbaugh all the way:

There’s nothing new in any of this and all of these are obstacles that countless gazillions of people have overcome throughout life in the history of human civilization. Study Reveals Widespread Office Bullying! I know exactly what this is. I know exactly. It’s a bunch of liberals behind this, a bunch of pantywaist, limp-wristed, linguini-spined liberals who are out there trying to work their magic and reorder the basic tenets of human nature, which is largely what a lot of liberalism attempts to do.

I’d add more, but these limp wrists make it awfully hard to type.

Last week my fellow blogger Stephanie West Allen forwarded to me a link to a provocative article recounting “Arbitration’s Fall From Grace“. It seems that companies which had been inserting mandatory arbitration clauses into contracts with their customers in an effort to avoid costly court battles are now finding themselves spending inordinate amounts of time and money fighting for the enforceability of these clauses in, ironically, court.

None of this should come as surprising news.

Many of us have long recognized that mandatory arbitration clauses are bad for business. They are bad for consumers and definitely bad for customer relations. Typically they form part of a contract of adhesion—a take-it-or-leave-it, one-sided agreement consisting of terms that the customer has no power to bargain for, usually printed in a microscopic font barely visible to the naked eye written in language that even lawyers have trouble understanding. This agreement is never directly brought to the attention of the customer, since it typically arrives in an envelope packed with advertising material and other irrelevancies–most customers are blissfully unaware that such an agreement exists at all.

Think about the message a mandatory arbitration clause conveys to the customer. Basically the message is this:

• If you have a legal beef with us, you can’t go to court.
• You have to use arbitration, and you will have to share with us the costs for the arbitrator’s services (of course if you could go to court, which you can’t, you’d be getting the judge’s time for free, courtesy of taxpayers).
• We, not you, get to pick the dispute resolution services company which will provide the arbitrator.
• If lots of you have a beef with us, you can’t join forces in a class action law suit to enforce your legal rights collectively and publicly. That would level the playing field between us, a mega-corporation, and you, an insignificant flyspeck of a customer. We can’t allow that.
• This dispute will be resolved according to the laws of a state far, far away from where you live and work–laws which favor us, not you.
• In short, we are going to stack the deck so thoroughly against you that you have little hope of achieving justice.
• Thanks, and have a nice day.

Mandatory arbitration clauses, in my own experience, seem to be favored by large corporations with poor customer service records and a history of unfair or deceptive business practices. Mandatory arbitration clauses are a way to limit corporate accountability to customers.

Mandatory arbitration clauses of course fail to address the underlying causes of customer dissatisfaction. They’re lousy conflict resolution tools.

So, instead of focusing on ways to limit liability, companies should be taking a preventative approach to managing problems with customers. This could include:

• Conduct an honest assessment of corporate policies regarding customer service–are they fair, consistently applied, and favor communication and clarity?
• Ensure adequate training of sales and customer service representatives
• Provide incentives to employees to serve customers better, not just increase sales
• Don’t hide contact information from customers–make it as easy as possible for them to get in touch with the right department and the right person to resolve their issue
• Acknowledge and take responsibility for mistakes–apologies are not optional
• Return customer phone calls and emails within hours, not days
• If an issue requires investigation, provide customers with frequent updates–even if the investigation is ongoing and no new data is yet available
• Create a customer service ombuds who can assist in the resolution of difficult disputes

Interestingly enough, “Arbitration’s Fall from Grace” drew attention to mediation’s far more positive track record:

As arbitration has fallen out of favor, mediation, a less frequently discussed alternate dispute resolution method, seemingly is gaining traction among corporations. Though the same issues that plague arbitration — a lack of discovery rights and enforceability — remain in mediation, the less-structured environment tends to be cheaper, less adversarial and quicker than an arbitration hearing.

At a recent continuing legal education event for corporate counsel in Atlanta, speaker David C. Vigilante, associate general counsel and chief litigation counsel at Turner Broadcasting, told the audience that he’s not a fan of arbitration because the process requires companies to give up some legal rights — and it’s binding. He called mediation “the worthwhile companion to its less worthwhile exercise, arbitration.”

In an interview after the event, he added that “most lawyers will tell you today that mediation is one of the most fantastic things to come along.”

Not surprising when mediation encourages communication, addresses misunderstandings, and levels the playing field for all parties at the table.