MICROSOFT AND MEDIATION

By SCOTT FLEGAL, Flegal Law Office , PA

I was not surprised that Microsoft and the United States government turned to mediation to resolve their differences. The “solution”, such as it is, involves the donation by Microsoft of a substantial amount of software and computer system to disadvantaged school districts. Of course, this solution has been roundly criticized, and was not even accepted by ten individual states. Whether the solution is “fair”, or whether it is even a good idea to donate computer equipment to schools, are topics for other articles.

What interests me about the settlement is that it was obtained through mediation. More and more, parties are discovering that mediation is an effective and efficient means of resolving disputes. Many individuals may have experienced mediation in the context of divorce and custody proceedings. For obvious reasons, our justice system is somewhat ill equipped to resolve the emotional issues surrounding divorce and custody. Judges often lack the power to fashion remedies that truly solve such issues. Divorce and custody proceedings that end up in court are almost always acrimonious and are always expensive. A good mediator can save the parties time, money and emotional damage.

Now, the business world is beginning to embrace mediation as an alternative to litigation for resolving disputes. This stems largely from one immutable truth: nobody, outside of a trial lawyer, enjoys litigation. In his book “Mediation a path back for the lost lawyer”, John R. Van Winkle, a trial lawyer turned mediator, describes the trial process as “one long, expensive train ride”. Once the lawsuit is filed, the clients climb on board, and become passengers, too often losing control over the process. The litigation train is going where the tracks go: to a remedy-specific, pre-designated result. Once the train starts rolling, the passengers have few opportunities to get off. Absent jumping, they must wait until the train either reaches the station or stops at other stations along the same track.

Mediation, on the other hand, gives the parties to the dispute the opportunity to fashion, with the help of an expert facilitator, a remedy that fits their case. At the end of a long trial, the judge may not have the authority to fashion such a remedy. The Microsoft settlement is a case in point. If the litigation train in that case had reached its destination, it is not likely that computers and software would be heading into schools as part of the remedy. If found guilty, Microsoft might have been ordered to reorganize, and might have been fined. In theory, the mediated result creates a “win-win” scenario.

I have been practicing business law in Nashua for almost 17 years. During that time, I have been involved in any number of business disputes. More and more, I find that mediation represents the best chance for obtaining an effective and efficient solution to a problem. It has been my experience that cases that go to trial seldom satisfy either side. Too often, victory comes at a high cost. Litigation is extraordinarily expensive, and is painful for the client.

We are, without a doubt, a litigious society. There are PLENTY of lawyers out there. One my good friends in the automobile business has always maintained that “there’s a rear end for every seat”. In my business, the maxim is “there’s a lawyer for every case”. Cases that never would have been brought 10, 15 or 20 years ago are routinely filed today. Why? In part, purely due to supply and demand. But our law schools are at fault as well.

Too many law students have been taught that they are “zealous advocates”, first and foremost. What happened to the lawyer as problem solver? Success for many lawyers is measured in large part by how many “wins” one has obtained in court. But is it really a “win” if victory has been obtained at great expense for the client, and at an even larger cost personally? Van Winkle tells a story where he was with his kids at a local fair. Through the crowd he spotted a man whom he had represented in a wrongful termination case several years earlier. The case had been a great win, where the desired results had been obtained at trial. Van Winkle had always viewed the case as one of the high points of his career. He approached the gentlemen and extended his hand. The man recoiled, explaining to Van Winkle that the trial had been the most painful period of his life. Despite the “win” in court, Van Winkle’s client was incapable of even speaking with him!

Many courts today have implemented mandatory mediation programs in their cases. In New Hampshire, under Superior Court Rule 170, the parties are obligated to select a form of dispute resolution that will enable the parties to settle the case prior to trial. In most instances, the parties choose mediation. Other lawyers obtain mediation training and serve as voluntary mediators in these cases, attempting to resolve the dispute. The parties must appear at the mediation session with their counsel. So far, the program has been quite successful. Many cases settle at this early stage of proceedings. There is no doubt that the mediation program has contributed to the increased efficiency with which cases are being heard in the New Hampshire court system.

I have often wondered, however, why the parties would not choose to mediate their dispute before a lawsuit has been filed. In light of Rule 170, which in effect orders the parties to appear in front of a court appointed mediator, voluntary mediation would seem to make sense. The parties would then have the ability to select their own mediator – perhaps one with particular expertise in the area of their dispute.

All of this is not to say that no disputes need ever go to trial. Without a doubt, there are many cases where only a trial can resolve the differences between the parties. There will always be a demand for talented trial lawyers to handle these cases. But perhaps the rest of us would be better off if we focused a bit more on problem solving, and a bit less on wins and losses. Our law schools need to adjust their curriculums in this regard as well, and this shift is becoming visible. Perhaps mediation will be the vehicle to carry us back to a time and place where fewer lawsuits are filed, and more disputes resolved privately.