What is the influence of mediators culled from the ranks of retired judges and attorneys on this finding? If this is how we are perceived by attorneys and judges, what must clients in the room be experiencing? The article helps demonstrate the widespread acceptance of ADR, and mediation in particular, in the legal profession.
This phenomena can best be described as a sea change in our approach to dispute resolution in the past thirty years. The article also points to lessons for our mediation profession as our systems of dispute resolution evolve further in the direction of mediation, including the imperative for mediation advocacy training. It also provides practice development lessons for mediators, as we continue to work in an environment increasingly viewed as the norm, not the exception.
We now have the data to support a continued, rich discussion. Written by Bruce Edwards Thirty years ago this past week, I walked away from my partnership in a San Francisco litigation firm to develop a market for a decidedly different approach to dispute resolution, a process called mediation. A shift toward alternative dispute resolution In the years since , when the American Bar Association first convened a symposium for academics and practitioners to better understand the causes of this phenomena, one factor has clearly emerged, the shift toward alternative dispute resolution.
Lessons for the future What lessons can we draw as mediators from this data, as we continue our lifelong learning in mediation skill development? Although California is ahead of the game on many of these recommendations, the problem remains acute here. Perhaps their most provocative recommendation was the expanded use of summary jury trials in appropriate cases.
This would allow the courts and the litigants to work together to have shortened jury trials and perhaps even advisory verdicts in more complex cases. I have a couple of other ideas, involving the use of jury consultants, mock trials and ADR organizations, that may help us evaluate and resolve our matters short of the traditional, expensive, and often times uncertain courtroom jury trials.
For many years, our firm has used focus groups or mock juries to evaluate our cases before trial. We use well-qualified and experienced jury consultants to assist us. The assistance of jury consultants is increasingly important in this era of strong juror attitudes that can affect the outcome of our case. Although the problem revolves primarily around tort reform attitudes, we are now seeing jurors who have prior exposure to civil cases through the media, television programs and the Internet.
They often come into the courtroom with strongly formed opinions about lawyers, judges, expert witnesses and other jurors. While jury consultants are critical to help us ferret out the negative attitudes, the focus groups serve another important function: They act as a rehearsal for the real trial.
As part of their efforts to better understand the reduction in jury trials, the authors explored the pressures exerted on litigants to settle.
What was most surprising was the source of that pressure. Across all responding groups, some sources were viewed as significantly more likely than others to exert pressure toward settlement, including mediators. These findings, at a minimum, raise some troubling questions for our profession. What happened to the notion that the parties maintain a right of self-determination in mediation?
Has our commercially-driven push toward settlement as the predominant indicator of success finally been laid bare? What is the influence of mediators culled from the ranks of retired judges and attorneys on this finding? If this is how we are perceived by attorneys and j udges, what must clients in the room be experiencing? The article helps demonstrate the widespread acceptance of ADR, and mediation in particular, in the legal profession.
This phenomena can best be described as a sea change in our approach to dispute resolution in the past thirty years. The article also points to lessons for our mediation profession as our systems of dispute resolution evolve further in the direction of mediation, including the imperative for mediation advocacy training. It also provides practice development lessons for mediators, as we continue to work in an environment increasingly viewed as the norm, not the exception.
We now have the data to support a continued, rich discussion.
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