Mediation Practice Guide: A Handbook for Resolving Business Disputes (Second Edition)

By Bennett G. Picker
Published by the American Bar
Association Section of Dispute
Resolution; $39.00; ISBN:
1-59031-169-8, 222 pp.;
paperback.

Reviewed by Philip Zimmerman

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Almost every business will at some point have a dispute with a vendor, customer, or employee. Generally, the options for resolving such a dispute are an adjudication by a third party resulting in either a complete victory or a complete loss, or a settlement in which both parties are satisfied with the result.

People who choose the latter option would benefit from reading the revised and expanded edition of the Mediation Practice Guide by Bennett G. Picker. The new edition enlarges the sections contained in the 1998 edition on preparing for and conducting mediation by providing tips for both parties and counsel. It also adds two new appendices that cover an outline for a negotiation plan that may be used in most types of disputes, and a table of useful Internet resources for dispute resolution.

The book more than lives up to its subtitle, “A Handbook for Resolving Business Disputes.” The author made the book user-friendly by keeping it simple and providing checklists whenever possible. He covers the key mediation issues of suitability, preparation, and advocacy.

Picker brings the benefit of a complete background in all phases of mediation to his writing. In addition to being a senior partner of the Philadelphia law firm Stradley Ronon Stevens & Young, LLP, where he is chairman of its ADR Practice Group, he serves on many U.S. and international neutral panels, including the American Arbitration Association, the CPR Institute for Dispute Resolution, and the World Intellectual Property Organization.

The use of mediation is growing for many reasons; as a legal analyst quoted in the book says: “Every case is a matter of ‘principle’ until the client receives the third or fourth bill from his counsel at which time they spell the word differently (‘principal’).”

The book points out that the alternative to a negotiated settlement is less rosy than the parties and their attorneys may have thought before the mediation started. It is the rare attorney who will predict a complete victory, and the cost for going through discovery, depositions, and trial, and possible appeals, usually seems much higher to the client than they had anticipated.

The book stresses the importance of selecting the appropriate mediator for the needs of the party and the particular dispute. For example, mediators should have subject-matter knowledge in addition to mediation experience. Subject-matter knowledge can save the cost of hiring experts and reduce the time spent by attorneys and parties in educating the mediator about the industry that the dispute involves.

This ability is particularly useful in the private meetings the mediator holds with each side (caucuses), which take place after the initial joint session. At that time, the mediator usually tries to give the parties a reality check by reviewing the strengths and weaknesses of their cases. An informed mediator can do more in this regard, because only the party’s own attorney is present with his client and no one else can present the other party’s viewpoint. For example, if the case is primarily one involving complex legal issues, an attorney/mediator would serve best, but in a case involving complex accounting or financial issues, a CPA/mediator would serve best.

One of the book’s 12 useful appendices provides model ADR clauses for business agreements. Others include the American Arbitration Association and CPR Institute of Dispute Resolution mediation rules and procedures. Possibly of the greatest use for businesses considering whether or not to litigate or mediate is the ADR Suitability Screen used by the author’s law firm.

After reading this book, those unfamiliar with mediation are in position to decide whether and how best to mediate. For those experienced in mediation, it provides a practical resource for improving their success.


Philip Zimmerman, APM, CPA, is in private practice as a mediator and arbitrator in New York and New Jersey. His website is www.mediatorpz.com.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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