Events - Tharpe & Howell - Litigation and Transaction Lawyers

AN AFTERNOON ON CAMPUS WITH PARTNER ROBERT FREEDMAN

Date: January 24, 2007
Location: University of California at Santa Barbara
Speaker(s): Robert M. Freedman

Firm Partner Robert Freedman was recently interviewed by students of the Mediation and Negotiation Program at the University of California at Santa Barbara, on how his skills as a certified Mediator - in addition to being an experienced trial attorney - have benefitted his clients and legal practice. While Mr. Freedman has obtained his certification to act as a Mediator, and has mediated cases, his practice remains primarily that of a trial attorney representing the Firm's clients in litigated matters and transactions. This interview was conducted in relation to his Mediation training, commitment to the field of ADR, and because his current litigation practice requires extensive use of the Mediation process to resolve his cases. A condensed version of this interesting dialogue is transcribed below:

Description:

Question:

Bob. I understand you have been a practicing attorney for over 17 years. During those 17 years, how many cases do you think you have handled?

Bob:

Over 400

Question:

What is the largest dollar value case you have ever handled?

Bob:

$100 Million

Question:

What is the smallest?

Bob:

$5,000

Question:

How many of your total cases do you think went to trial?

Bob:

About 20.

Question:

Of the cases that did not go to trial, how many do you think settled without the use of arbitration or Mediation?

Bob:

About 40%.

Question:

How many do you think settled through Mediation?

Bob:

About 40%.

Question:

What was the most important case of yours, that was settled through Mediation?

Bob:

Actually there were two - the Northridge Meadows case(earthquake collapse with 17 deaths - 57 consolidated lawsuits) and the Shoreliffs landslide case which were both settled through a court supervised mediation plan.

Question:

Were your clients happy with the result? Why?

Bob:

Yes - Northridge Meadows was a terribly sad, large dollar case with world-wide media exposure that did not result from any negligent actions of my clients, who I was able to get out of the lawsuit without paying any money. In Shorcliffs, the settlement included a minimal payment on my clients' behalf (by their insurer), and resulted in a significant improvement in the soils stabilization of the area which significantly reduced damages from future slides to both plaintiffs, our clients, and others.

Question:

Bob, what criteria do you use when determining whether Mediation would be a good option for your clients?

Bob:

I start from assuming that every case has the potential for being resolved through Mediation. However, settlement of certain cases my be significantly impeded because of an adamant disagreement between the parties over an issue of fact or law that needs development through discovery and/or other litigation. It is important to develop a strategy that incorporates Mediation into a litigation strategy.

Question:

What factors do you believe are needed in order to achieve a successful outcome at Mediation?

Bob:

The key to a successful Meditation includes a belief that the parties really want to settle; that there are no hidden agendas by the parties or the attorneys that will prevent settlement; that the facts and law have been developed so disputes are narrowed, and that the matter is properly framed for an offer - counter offer negotiation.

Question:

Do you think Mediation is a good experience for your clients to go through? Why?

Bob:

Yes - Mediation is nothing more than “deal making.” It allows the parties to have control over the results of their litigation.

Question:

Why do some clients not want their cases to be Mediated?

Bob:

Once the pros and cons of Mediation are discussed with the client, almost every client will agree to some form of Mediation at some point. Keep in mind that the Courts require it. Every case must go through a Court ordered Mandatory settlement Conference - which is essentially the same as a Mediation - where a third party attempts to negotiate a settlement between two or more disputing parties.

There is also a small minority of clients that are old-time litigators, and some attorneys and law firms that view agreeing to Mediation is showing a sign of weakness in the case. Fortunately, those that take this attitude are getting to be fewer and fewer each year.

Question:

What are some of the benefits of Mediating a case during the litigation process?

Bob:

As I've pointed out, it allows the parties to take control of the outcome of the case. Our judicial system is comprised of a set of rules and procedures that are designed to accommodate every type of dispute that society deals with. This results in the parties having to subject their disputes to a Court system that is not tailored toward achieving a fast and cost effective resolution that otherwise could be achieved by allowing the parties to a dispute tailor the decision making process to their own specific matter.

Question:

What are the pitfalls (if any) of Mediating a case during the litigation process?

Bob:

A lot of time and money can be wasted by proceeding down the Mediation path if the parties are not committed to the process, or if there are hidden agendas. Mediation can also distract a party and their attorney from focusing-in on trial preparation. Further, it can result in one party revealing to the other his or her litigation strategy and tactics - to that revealing party's detriment. Lastly, if not handled correctly, or if the wrong Mediator is used, it can result in further polarizing the parties - making the potential for settlement at a later date even more difficult.

Question:

For cases that are Mediated during the litigation process, what is the range of customary hourly rates charged by the Mediator?

Bob:

This depends on a number of factors. Typically, there are Mediators for all types of cases and the fees reflect the nature and complexity of the case. For example, a neighborhood dispute or simple inter-personal matters may be mediated by agencies or others at no or a very low cost. Typical car-crash, tort cases, and simple contract disputes may be mediated by Court appointed Mediators who are paid a nominal fee by the Court, with the parties paying a few hundred dollars more.

Large exposure and commercial cases require very specialized and experienced professional Mediators who charge anywhere between $250 and $450 or more an hour.

Question:

Bob, what made you decide to become a certified Mediator after practicing law for 17 years?

Bob:

I wanted to develop my skills as an expert in the Mediation process. In my practice, I have had the rare and unique opportunity to deal with the very best Mediators in both Northern and Southern California as well as Nevada on numerous occasions, which has allowed me to see the various techniques and strategies they use. For me, obtaining my Certification was to achieve through formal education insight into the taught strategies and techniques used by Mediators. My formal learning of these strategies and techniques has resulted in my having a significant advantage as a litigator attempting to achieve a good result for my clients through the Mediation process.

On a more personal note, my younger brother was a staff attorney for the American Bar Association ADR Committee in the late 1980's which was actively promoting the use of ADR during its infancy. Though him, I developed an interest and appreciation for the use of ADR (Alternative Dispute Resolution), as well as the business aspects of it.

Question:

Have you used your formal certification to act as a professional Mediator:

Bob:

While I obtained a Certification in Construction Dispute Mediation from Strauss Institute at Pepperdine, I have only acted as the Mediator in a very limited number of cases. However, my certification has helped me achieve better considered settlements for my clients, which more equitably reflect their liability/entitlements in each particular matter.

My clients are able to obtain resolution at a cost of both time, money, and personal involvement that is significantly less than if the matters were to go to trial.

Question:

Do you think a Mediator should be familiar with the subject matter of the issue being Mediated?

Bob:

Like trial attorneys, there are areas that do require specialization. However, there are many areas that a competent and intelligent person who is not an attorney can be effective as a Mediator. When mediating sophisticated technical or legal issues, specialization is very important as it significantly reduces the ramp-up time necessary for the Mediator to start the deal-making process. This in turn reduces costs, and reduces the parties' frustrations with the experience.

Question:

What do you believe are the attributes of a good Mediator?

Bob:

Patience; natural curiosity; impartiality; quick learner; a “people person”; a “deal-maker”; ability to see behind the obvious and “drill deep”; somewhat organized; moving the process along quickly and efficiently; soft-spoken; reliable; steady; and friendly to a degree.

Question:

What are attributes you do not like to see in a Mediator?

Bob:

Hidden or obvious “political agendas”; stubbornness; stupidity; impatience; loudness; nervousness; lack of or difficulty in understanding of the issues; greediness; wasting time; getting dragged down in un-important or irrelevant details.

Question:

If you were to give students of the UCSB Mediation and Negotiation Program advice on being a certified Mediator, what would that advice be?

Bob:

The first question the students should ask themselves is why he or she wants to achieve this certification. Is it something they want to do as a profession? As a side-line to another profession? To learn the techniques of a Mediator as an asset for some other profession or interest? Being a certified Mediator is important to each of these areas.

The most typical question I hear is "can one make a living from being a certified Mediator?" Twenty years ago, the answer would have probably been “no.” However, times have changed and there are many people who now make a living from Mediation. As the field has opened and the money making opportunities have unfolded, it has been flooded by those most directly related to its use - such as retired judges and attorneys - which does limit the opportunity for others. With that being said, opportunities do continue to exist and more created daily.

Like most professions, the key to success tends to be specialization. Most Mediators (lawyers or not) get to the position where people will pay them for these skills after they have developed a level of expertise and experience that makes them visible in their areas of interest, such that people trust them and will go to them to help resolve their problems.

Closing:

Firm Partner and certified Mediator Robert Freedman co-chairs the Firm’s Commercial and Construction Practice Groups. Mr. Freedman has been practicing law for over 17 years, and has been a certified Mediator since 2002 when he earned his Mediation Certificate at Pepperdine’s Strauss Institute of Dispute Resolution.

Related Attorney(s):
Robert M. Freedman