Mediation Practice Guide: A Handbook for Resolving Business Disputes (Book Review)

August 9, 2004

This review first published in THE CPA JOURNAL, May 2004.

Second Edition

By Bennett G. Picker

Published by the American Bar Association Section of Dispute Resolution, $39.00, ISBN:1-59031-169-8, 222 PP. Paperback.

Almost every business, at some time in its existence, has a dispute with a vendor, customer or employee. If you were in such a dispute which choice in resolving it would you prefer: 1. an adjudication by a third party resulting in either a complete victory or a complete loss for you or 2. a settlement in which both you and your adversary would be satisfied with the result?

If you chose the later, it is worth your time to read the revised and expanded edition of the MEDIATION PRACTICE GUIDE by Bennett G. Picker. The new edition enlarges the sections contained in the 1998 edition on preparing for and conducting mediation by adding material that contains tips for both parties and counsel. It also adds two new appendixes which cover an outline for a negotiation plan that may be used in almost any type of dispute and a table of useful Internet resources for dispute resolution.

As an active practicing mediator, who has completed over 100 mediations, I can vouch that the book more than lives up to its subtitle, “A Handbook for Resolving Business Disputes.” Whether you never participated in mediation and would like to learn how it works, about to prepare for one or a practitioner you most likely will not be disappointed after you read this book. The author made the book “user friendly” by keeping it fairly simple and providing checklists whenever possible. He covers the key mediation issues of suitability, preparation and advocacy.

Mr. Picker brings the benefit of a complete background in all phases of mediation to his writing. He is a senior partner in the Philadelphia law firm of Stradley Ronon Stevens & Young, LLP, where he is the chairman of its ADR Practice Group. He serves on many United States and international neutral panels including: the American Arbitration Association, the CPR Institute for Dispute Resolution and the World Intellectual Property Organization. He has lectured, trained and spoken extensively on alternative dispute resolution and is an active participant and leader of various Pennsylvania bar associations.

The use of mediation is growing for among other reasons, as a legal analyst is quoted in the book as saying, that “every case is a matter of ‘principle’ until the client receives the third or fourth bill from his counsel at which time they spell the word differently (‘principal’).” As the past managing partner of a CPA firm that was involved in a dispute with partners that had been asked to withdraw from it, I well understand this quotation. We went from knowing that we were right and would fight for our rights no matter what the cost to finally settling with these partners even though it involved a small payment to them. We felt good when the dispute was finally over because we finally understood that our main interest was protecting our firm’s reputation and not a complete victory.

As the book points out, the alternative to a negotiated settlement is not as rosy as the parties and their attorney may have thought before the mediation started. When, as a mediator, I sometimes find one of the parties is not willing to make a reasonable settlement offer, I usually ask their attorney two questions. One is what are the chances of your client winning in court and the other is to estimate the cost of going through discovery, depositions and trial and undertaking and possibly an appeal if they lose in court. It is the rare attorney that will predict a complete victory and the cost estimate usually seems much higher to the client than they anticipated.

The book stresses the importance of selecting the appropriate mediator for the needs of the party and the particular dispute. For example, there are mediators who are not only experienced mediators but also have subject matter knowledge. This knowledge can save the cost of hiring experts and reduce the time spent by attorneys and parties in educating the mediator about the particular industry that the dispute involves.

This ability is particularly useful in the private meetings the mediator holds with each side (caucuses) that take place after the initial joint session. At that time, the mediator usually tries to give the parties a reality check by reviewing the strengths and weaknesses of their cases. A mediator, with subject matter knowledge, can do more in this regard since only the party’s own attorney is present with his client and no one else can present the other party’s viewpoint. For example, if the case is primarily one involving complex legal issues an attorney/mediator would best serve but in a case involving complex accounting or financial issues a CPA/mediator would best serve in most instances.

Among the twelve useful appendices which follow the text is one that provides model ADR clauses for business agreements. Others include the American Arbitration Association and CPR Institute of Dispute Resolution mediation rules and procedures. Possibly of the greatest use for businesses considering whether or not to litigate or mediate is the ADR Suitability Screen used by the author’s law firm.

After reading this book, those not familiar with mediation are in position to decide whether to and how to best mediate. For those experienced in mediation, it provides a practical resource for improving their success in mediation.