June 2004

WSBA Mediation Program Helps Lawyers and Clients Resolve Disputes

by Dee Knapp

Sometimes someone understanding makes all the world of difference. — Client

[The mediator] apparently gave my former client a different perspective on the fact that nothing is for sure when one goes into court. — Lawyer

These are two comments from satisfied participants in the WSBA Mediation Program. The program offers lawyers a chance to informally, with the help of a neutral third-party mediator, resolve disputes with other lawyers, their former clients, or other professionals. An alternative to litigation or arbitration, the Mediation Program, now in its fifth year, is a service provided by the WSBA. Participation is voluntary and confidential, as provided by RCW 5.60.070, provided that no party to the mediation will be precluded from filing or pursuing a grievance under the Rules for Enforcement of Lawyer Conduct. Each side pays a $75 filing fee to participate. There are no additional fees charged for the mediator's time.

We lawyers like to think of ourselves as skilled communicators. Communicating is what we do for a living. However, even the most skilled communicators can stumble when they have a personal stake in the outcome, professionally and emotionally. Further, since we are trained to compete, we tend to present our positions in an effort to prevail over the other party. Yet, by doing so, the other side may become more defensive and resistant to considering our interests.

The following examples may sound familiar:

— A client is frustrated that her divorce is not completed yet, and threatens to fire her lawyer or not to pay the most recent bill. The lawyer has had problems reaching the client throughout the case but feels he has done timely work in a complicated matter. Both are frustrated at the current stalemate.

— A lawyer associated another lawyer on a case which settled for less than expected. The associated lawyer believes she wasn't paid fairly for her work according to the two lawyers' agreement. The first lawyer has paid what he feels is reasonable.

— An expert witness was hired by a lawyer to prepare a report and is awaiting payment. He has called the lawyer's office numerous times and doesn't understand why he hasn't been paid yet. The lawyer is not aware that the expert witness has not yet been paid.

In the Mediation Program, authorized by APR 16, a skilled mediator helps the parties identify the misunderstandings and differing expectations that may have led to the dispute and resulted in blame and finger-pointing. By involving a third party that has no investment in the dispute, the way may be opened to a more productive dialogue. The program coordinator assigns a mediator from a list approved by the Board of Governors of lawyer volunteers with the appropriate training and experience to serve effectively in a facilitative role.

There are many different styles of mediation. Some mediators focus on the communication between the two parties, try to determine what has gone wrong, and then coach the participants into more productive ways of communicating until they can work out their problems together. Other mediators may focus on problem-solving. They may search for middle ground and help the parties identify different options for reaching solutions. Still others will blend different styles and techniques to fit the individuals and the problems involved.

Whatever the style of the mediator, most mediations follow a predictable format. When the parties meet for mediation, the mediator listens to both sides of the dispute and attempts to identify the issues and interests of each party. The mediator then assists the parties in working together to find a resolution that works for both parties. If appropriate, the mediator may meet separately in confidential sessions with each party. If the parties reach a mutually acceptable resolution of the dispute, the mediator assists in putting that agreement in writing so that it may be implemented. Such an agreement is legally binding on the parties.

Should you find yourself in a dispute with your client, another lawyer, or another professional, consider giving the WSBA Mediation Program a try. You may find that you gain not only a resolution to your dispute, but a sense of satisfaction and, depending on your goals, some improved relationships as well.

For more information about the Mediation Program or the WSBA Fee Arbitration Program, contact the program coordinator, Talia Clever, at 206-733-5923 or taliac@wsba.org. You can also find program information on the WSBA website at www.wsba.org/lawyers/services/adr.htm.

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Dee Knapp is a member of the ADR Program Standing Committee and the WSBA Mediator Panel. She is an attorney for the Federal Aviation Administration and Vice President of ADR Options, a mediation and consulting firm.

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