Oregon State Bar Bulletin — APRIL 2012

Article Was “Spot-On”
Elden Rosenthal was spot-on in his article “Second Thoughts on Mediation” (February/March 2012). Mediation is not appropriate or necessary for every case. Mandatory mediation contravenes the most fundamental principle of mediation: self-determination regarding what process to use to resolve the dispute. See, Oregon Mediation Ass’n. Core Standards of Mediation Practice (Rev. 2005).

The expectation of mediation discourages negotiations. Not long ago, another attorney initially refused to negotiate. He said, “I do not want to put a number out there before mediation.” I responded that I would not mediate the small case. As Mr. Rosenthal urged, attorneys should refuse mediation unless the parties are unable to negotiate their own resolution.

The expectation of mediation in which the parties remain separated can discourage good faith. As Mr. Rosenthal notes, when attorneys and parties never expect to talk with one another, it can lead to overly aggressive litigation ploys. When the parties never sit face-to-face, then neither needs to “keep a straight face” when they open with unrealistic “demands” and “offers.” The results are predictable. Litigation is more expensive than necessary, and mediations begin with impasse over who will step into the realistic range first.

Some courts have responded to slashed budgets and reduced personnel by requiring mediation as the alternative to trial, and some lawyers prefer mediation because they lack confidence in their negotiation skills. Perhaps the Oregon State Bar should be more directive in what CLEs an attorney must take during the first three, six and nine years. Perhaps forcing attorneys to study negotiation would encourage them to negotiate and, thereby, resolve cases without trial or mediation.

Some courts that order mediation simply find an available trial judge to mediate. If the parties must pay for involuntary mediation, then, at the very least, the parties should be able to select their own mediator. Mediators vary in skill and dedication to their profession. Some trial judges are terrific mediators, but not everyone ranks in the top 10 percent.

I agree with Mr. Rosenthal’s biggest point: the pendulum has swung too far toward mediation as the primary alternative to trial. Members of the bar need to push back and negotiate first.

Jeff Merrick, Lake Oswego


Mediation Should Be Voluntary
I have read the article by Elden Rosenthal entitled “Second Thoughts on Mediation,” and I have the following comments:

A mediation that fails because of the absence of the ultimate decision maker fails because of the plaintiff’s lawyer. He/she should have insisted on the presence of the ultimate decision maker if he/she truly wanted that mediation to settle the dispute rather than simply provide information as to what settlement offer would be forthcoming.

Trial lawyers accepted the role of mediators because many lawyers oversold their clients’ cases in order to get those cases. It was a welcome relief to have a mediator’s input (yes, most mediators talk directly to the client, rather than simply to the lawyer). Clients seem to have more faith in a mediator’s opinion than in the opinion of their lawyers. The lawyer could always say to the client, “I do not agree with the mediator’s evaluation but he/she is a neutral and has seen what juries will do, so I think that you should listen to him/her.”

I agree that a lawyer should not agree to mediation absent a discussion of the case and an attempt to resolve it with opposing counsel. I also agree that no one should be compelled to mediate.

Mediation should be voluntary. After all, what can a court compel a party to do other than show up? I do not agree that one side should bear the entire cost of mediation and I do not think that a lawyer (as opposed to a party) should advance the fee of the mediator. I want my client to have a stake in the outcome of the mediation.

I do not agree that it is not a purpose of mediation to give our clients a chance to vent. That is exactly a purpose of most mediations, namely to give our clients an opportunity to tell their stories to a neutral person.

Peter M. Appleton, Salem


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