Putting the “Civil” Back in Civil Litigation

John B. Bates Jr. is an experienced mediator with JAMS in San Francisco. He can be reached at jbates@jamsadr.com.

As ADR professionals, we deal in disputes. These are, by their nature, often bound up in emotion. But we are ADR professionals, after all. Even in the midst of high emotion, it is our role to keep our heads and help parties work past stubbornness, anger or resentment.

And, sometimes, we have our work cut out for us.

Before the first session in a recent case, for example, I called each of the four lawyers involved to get acquainted. After giving their client’s take on the issues, each launched into an attack on the integrity, competence, and general disagreeableness of the other lawyers.

I’ve gotten used to this practice of a lawyer taking the mediator into his or her confidence, hoping to skew the neutrality of the neutral. Indeed, this dynamic is even more pronounced when I mediate disputes out of town: Each of the lawyers will take me aside to “educate” me about how things work in their community. This is not only ineffective, it’s bad lawyering: harmful to the process, to the clients, and to the reputation of the legal profession.

As a mediator I am committed to the deal, to reaching a resolution that everyone can live with—and more than 90 percent of the time, it works. After all, the reason the parties are in mediation is to settle. If lawyers would embrace this reality, they might dial back the vitriol; aggressive posturing only encourages clients to dig in their heels, particularly when they hear their counsel declare that the other side is being unreasonable.

Equally important, when lawyers impugn each other’s integrity or competence, they simply feed a monster: the negative image of our profession.

Mediation is here to stay because it works. But we have to think of it as one tool to resolve cases, not the only tool. As various civility initiatives preach, adhering to a “Golden Rule” approach at every stage of litigation and every phase of a transaction will make us a healthier profession. And that applies especially to mediation. If we are willing to respect each other—knowing that we can effectively represent our clients and still be colleagues—we can do deals and be better lawyers at the same time.