Mediation Minute

Improving the Bottom Line Through Mediation Advocacy

August 9, 2021

This month’s article is an introduction to a larger seminar to be offered in the fall on the topic of promoting mediation advocacy to attract and retain clients, and to strengthen attorney-client relationships. How so, you ask?

Consider this question: How does an institutional purchaser of legal services evaluate different law firms? Recent surveys reveal that inhouse counsel and other purchasers of legal services base their decisions on the consistency of the reporting and cost-effectiveness including budget management. Only 1% of respondents in a large CLM survey stated that they used trial results as a barometer for selecting law firms.

This is imminently sensible because there are too few trials, and the cases are too varied, to allow one to develop any statistically valid comparison of law firms based on trial results, particularly in different venues.

Institutional clients and insurance carriers have data, not from trials, but from settlements. Settlements are plentiful so you can aggregate data and begin to draw conclusions over time based on legal spend, indemnity or recovery, and time to resolution. These are “crunchable” numbers that give one insight into the ability of a law firm to resolve cases efficiently.

The overwhelming majority of cases resolve through settlement, so doesn’t it make sense for a client to ask:

  • Who does the best job of resolving cases cost effectively?
  • Why are we paying for months and months of litigation when we know settlement is likely?
  • How long does a particular attorney or law firm take to set the first mediation?
  • What is the success rate at mediation?

These questions can be answered with available data.

Very few litigation firms have any statistical data to justify claims of “cost-effective results” for their clients. How long does a garden-variety, first-party property file remain open for the insurance carrier?  How many weeks or months does it take to hold mediation in a product liability or medical malpractice case? Do some firms have a higher rate of summary judgment after an impasse at mediation?

Institutional clients are not (usually) interested in case-law, making precedent, “sending a message”, or defense victories. They are interested in managing risk and reducing legal spend.

Trial is a last resort. So why would you market your trial expertise over settlement expertise and mediation skills when the last thing the client normally wants is having to try the case?

If you are marketing your superlative ability to settle claims at mediation or by an alternate form short of trial, you are pitching a message the savvy client wants to catch.

Mediation is not sexy, value affirming, or the stuff of John Grisham novels. But in a resolution-driven culture, you need to be the best pilot and navigator on the sea of settlement, not merely a Sherpa focused on the summit of trial practice.

There will be more on this topic in upcoming newsletters. Watch for future seminar announcements.