with judges who protested the use of mediation in the trial
“Where is this all going?” asked a judge. “Are we going to
use this mediation until our trial calendar is down to nothing?
Are we going to wind up having to eliminate some of the divisions of the court? Are some judges going to lose their jobs?”
After mediating several pending cases for the retiring probate judge, including a feud between two Irish brothers and
their father’s $40 million estate, I arranged lunch with the
judge assigned to take over the probate division.
Over Chinese food, I told him of my success with probate
mediation. “I have found family-against-family disputes are
particularly suitable for mediation, Judge,” I said. “It’s usually an old grudge causing the problem, and a good mediator
can get the parties to consider the importance of the family
relationship. Other family members can often influence the
disputants,” I added.
“You know that the judge you are replacing didn’t like to
try these contested wills. The trials are ugly and angry, ending
in decisions that satisfy neither party. Would you be interested
in making some referrals to me?” I asked.
“I’m managing the probate calendar just fine, and I don’t
mind trying the cases,” the judge snapped. “There really is no
need for your services. But I thank you for telling me about
your experience with probate mediation. I’ll keep it in mind.
I want to pay half of the lunch bill, too.”
After that judge was reassigned, the probate court opened
to the use of mediation, and the program became highly suc-
Times have changed. Mediation is now a mainstream law
practice tool. Many lawyers and retired judges now work as
private mediators. Mediation saves money, avoids risk, eliminates uncertainty, offers creative settlements the courts can’t
offer—and creates revenue for a growing number of
More than 20 years of mediating have resulted in some
unusual and funny experiences. Here are just a few.
(Mediation is confidential, so I’ve altered the identities and
location of the people in the stories I’m going to tell you.)
Defense lawyers hated mediation. “There is no rational
reason for settling lawsuits that quickly. How about doing
some discovery and taking a few depositions first?” they
asked. “Don’t we need to gather the facts, research the law,
and look at our experts’ opinions? Is it wise to start talking
settlement before the motions are ruled on? Would agreeing
to mediation be viewed as weakness?”
But, the client responded, “We are going to mediate.”
“Chances are good we can settle the case earlier and without
a lot of discovery costs. It‘s faster, and it is cheaper. We are a
for-profit corporation, you know.”
Dragged to mediation by their client, the defense lawyer
often would see the case settle, and would say, “Oh, I’ve
always been a fan of mediation. It just makes good sense to
try to settle early and avoid litigation costs.”
A senior partner in a large law firm invited me to dinner.
While we were waiting for our food, he made clear his reason
for the dinner invitation.
“Brice, are you trying to destroy the practice of law? Do
you think you can drive us out of business with this media-
tion business?” His finger trembled as he pointed at me.
“Well, I’m here to tell you that mediation will never replace
the practice of law.”
“Hey,” I responded, “I didn’t invent mediation. I’m just
a lawyer making a living. Your clients want mediation. They
want to settle their cases fast and cheap. If you don’t like
mediation, complain to them about it,” I said.
The remainder of our dinner together was tense and as
short as we could make it. His fear of win–win negotiation
early on in a dispute was understandable. It was affecting the
bottom line. This man later advertised his availability as a
Plaintiff lawyers didn’t like mediation either.
“We don’t believe insurance companies will negotiate reasonable settlements voluntarily,” they said. “How can we
trust the defense lawyers? They are offering to pay the mediator, but even if the mediation is free, we are skeptical. It signals weakness in the case,” they added.
Judges didn’t like it much either. It threatened their
power and their jobs. I sat in State Bar committee meetings
Calling to mind an old country–western tune,
“I was doin’ mediation when mediation wasn’t cool.”
Twenty years ago, that was true in many ways.
Nobody wanted to mediate.