Mediation Minute

Mediation Advocacy as a Competitive Advantage

October 7, 2020

In what is a difficult time for providing legal services, law firms should be rethinking how they position themselves and obtain a competitive advantage over rivals. I have longed believed that business litigation and insurance defense firms have failed to see mastery of ADR and, in particular, mediation advocacy, as a branding tool.

Why isn’t being very good at mediation featured on firm websites? Why don’t law firms invest in mediation training? Why don’t more firms focus on efficient resolution?

There are probably several answers. Mediation is not sexy. Trial is high stakes, high theatre. John Grisham doesn’t write novels about settlements reached at mediation. Reputations are not made on achieving what is usually an unremarkable settlement.

Mediation is quiet and normalizing. Big wins and losses are necessarily avoided. If a trial is baseball, mediation feels to some like playing tee-ball. But the comparison is unfair because mediation and trial and the tools needed to achieve mastery of them come from different toolboxes.

Perhaps the unwillingness or inability to see mediation as distinct but no less important is in some measure a desire to avoiding appearing weak or the sense that mediation advocacy isn’t really that hard. Perhaps trial lawyers think the gunslinger image is great, and the peacemaker role diminishes their luster.

Trial is the big show. Mediation is hidden and confidential. How do you build a reputation on a skill set that no one sees?

What clients really want

Don’t clients choose law firms based on the ability to try a good case and win the tough cases? Actually, no. A CLM study reflected that less than 2% of corporate and institutional clients (e.g., insurance carriers, national retailers, hospitals) choose law firms based on trial results. Survey after survey of inhouse counsel, risk managers and claims personnel reveals their choice of law firms for repeat business depends upon resolving cases efficiently and reporting promptly.

Institutional clients want consistent and timely communication, but mostly they want it OVER. Trials occur less than 2% of the time. Why is our marketing focused on two percent of our customer base?

If you have a bet-the-ranch case, you want seasoned trial lawyers, but the reality is even in bet-the-ranch cases, the bet is rarely made, and the dispute resolves for a few head of cattle and not much acreage. With COVID, trials have virtually ceased, so how do you get resolution? Clearly, by leveraging a good settlement.

How valuable is trial experience?

How does a law firm distinguish itself based on trial results that are infrequent such that data-driven analysis of law firm trial results is unavailable?

It seems logical that institutional (not clueless, not one-off) purchasers of legal services would make decisions based on obtainable data they have and will continue to receive, that is, data from settled cases. It is easy to compare law firms using available measures from settlements: cost of defense, cost of indemnity, and time before resolution. Mediation results are measurable and here clients don’t suffer for lack of data points.

Law firms tout expertise at trial, a hugely important skill set, but ultimately it is rarely ordered. If lawyers were chefs, you wouldn’t rate the restaurant based on the rarely ordered dish (trial) while ignoring the menu items that the chef needs to execute well every day (settlements).

Touting trial experience while ignoring ADR mastery in this environment or even during normal times requires you focus on the 2% of outcomes that occur by trial and ignore the other 98% of your work. We are asking the client to look through wrong end of the telescope.

Client v. Ego

When I was in a litigation firm, we promoted our mediation skills to the carriers we represented and instilled in our lawyers the value of being a superior mediation advocate. Was it sexy? No. Was it ego affirming? No. Did we make headlines by being efficient case handlers? No. But in the eyes of the clients, we distinguished ourselves from the competition.

The shift requires you to be willing focus on what the client wants and not your ego. Let me echo my first mentor, Leslie O’Neal Coble, who told me as a young lawyer that our long-term success is achieved by knowing “it’s a marathon not a sprint.”

Mediation advocacy requires training, a different sort of intelligence, and a change in the way you deal with the case and the adversary. Being good at mediation and being a competent trial lawyer are not mutually exclusive. Obtaining dual competency, and telling clients about it, should be part of a winning strategy for securing and keeping existing business.

If you are interested in mediation training and CLE focused on using mediation to improve client relationships, check out my training web page.