Resolving conflict outside the courtroom

Why mediation skills are increasingly valuable for lawyers, according to two Harvard Law experts

What if there was a way to settle disputes faster, confidentially, for less money, and with the potential to better preserve relationships between the parties? Enter mediation, a form of alternative dispute resolution where participants in a conflict sit down — with a third-party intermediary — and hash out possible solutions.

According to one study, up to 92 percent of cases are resolved out of court, a figure that does not include the number of lawsuits that are never filed because the parties used other dispute resolution methods at the outset. Mediation is rising in popularity as one such method, according to David A. Hoffman ’84, the John H. Watson, Jr. Lecturer on Law at Harvard.

“These skills are important for all law students, especially those interested in litigation, since the vast majority of their cases will at some point be candidates for mediation, either because the judge suggests it, the client asks about it, or the lawyer feels like it’s an important option,” says Hoffman, who has taught mediation and dispute resolution at Harvard since 2008 and is a founding member of Boston Law Collaborative (BLC).

Hoffman co-teaches the Mediation course with Audrey J. Lee ’05, a lecturer on law at Harvard and senior mediator at BLC. Lee is also a co-lead of the Harvard Mediation Intensive, a 40-hour executive education mediation program offered by the Program on Negotiation. Lee says that mediation can save money, time, and even relationships, because it can be individually tailored to the needs and desires of the parties. “A lot of people view this as a more productive way to resolve problems.”

In an interview with Harvard Law Today, Hoffman and Lee discussed the rise of alternative dispute resolution methods, what mediation offers, and why law students should learn to be good mediators.

Harvard Law Today: How is mediation used in the legal world?

Audrey Lee: Mediation is one way to resolve a dispute that is in the litigation process. Sometimes it might be introduced early on, maybe even before a formal complaint is filed in court, afterwards, or even just before a trial starts.

David Hoffman: It’s used very extensively in cases that will otherwise be decided in a court. In litigation — ranging from family business disputes and divorce to environmental and employment cases — mediation has gone, during my career, from being more the exception, to the rule. The type of litigation cases that never get mediated are the ones where there’s an issue of principle involved — for example, Brown v. Board of Education is the paradigmatic case that nobody thought should be mediated, because there was an important issue, racial segregation, that needed to be adjudicated.

Mediation is used much less in transactional work, and I think that’s because a lot of the participants, especially in corporate transactions, are already playing a mediative role. For example, investment bankers are sort of mediating between an enterprise and the investment stakeholders. However, in my view, mediation is underutilized in transactional work.

HLT: Why is mediation becoming more common?

Hoffman: A fair number of reasons. One is that in some jurisdictions, there have been delays in getting trial dates because of docket congestion. And so, courts are very supportive of mediation, and often encourage it as a way of sorting out the cases where a negotiated resolution is entirely possible. That preserves precious judicial resources for cases that need a trial.

The other impetus has to do with the costs of litigation for the litigants, as legal fees have continued to rise. Particularly in big law firms, hourly rates have reached a level that if a case can be resolved much more inexpensively in a mediation, the clients are looking in that direction, and lawyers who value the loyalty of their clients are likely to suggest it. Sometimes, ethical rules or court rules require lawyers to discuss mediation with their clients. For example, Massachusetts has a court rule that requires lawyers to certify in certain court filings that they have discussed alternative dispute resolution options with their client.

For both lawyers and clients, there’s a logic to mediation that is very compelling: you’re entrusting an independent, impartial professional with the role of being a confidential deal broker, which means that each side can talk confidentially with the mediator about their perspectives on the case and the extent to which they have flexibility. And so, the mediator acquires a lot of information through this use of shuttle diplomacy that can help everyone figure out whether there’s a zone of possible agreement.

HLT: How are the skills mediators use similar to those of a litigator?

Lee: There are some similarities between litigation work and what a mediator might do. Something that is important for both roles is understanding what’s most important to your client (or a party in mediation) — their interests. Lawyers need to identify and truly understand what their client’s interests are, the priority of those interests, and do some thinking about what is important to the other side, if there is going to be a resolution. Those are very similar skills that mediators use all the time.

HLT: How do they differ?

Lee: If you’re acting as the mediator, you’re the third party — an impartial facilitator of the negotiations. I think there is something a little bit different about inhabiting that third person role, where you’re tasked with trying to figure out what the interests or the needs are for both sides, exploring the differing experiences of both sides.

The types of cases I handle most often these days are early disputes in an organization or workplace, perhaps before there’s been a formal complaint. These cases look a little different from cases where there has already been discovery and lawyers have already been extensively involved.

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