Craig Woods: Summary and Reflections
Talking to Craig Woods
On April 12, with the collaboration of GEMME, IDM and Squire Patton Boggs, Butts Associates held a meeting at “La Sede” of COAM with Craig Woods, a lawyer with a long career and recognized prestige in the United States. He explained to those present how mediation had been developed in the United States, how large companies use mediation to resolve their conflicts, and what is the role of lawyers in this dispute resolution system.
Your skepticism as a lawyer about mediation
Woods began his speech sharing what was his surprise to check, when for him the mediation was still unknown, how with this could resolve conflicts that in his experience as a lawyer had never bet that they could have a negotiated solution, either for the matter, well by the parties involved. According to what he told us, from that moment he declares himself openly “lover of mediation”.
On the development and stages of mediation in the United States, Woods told us about his important growth and expansion to all areas. Initially, as we know, mediation was used primarily for the resolution of labor disputes but was not commonly used in other matters. Currently, its application has been extended to conflicts in many other fields. The companies, he explained, use it more and more voluntarily, and this phenomenon was favored by the inclusion of mediation clauses in their contracts. The courts, however, have had and continue to play a very important role in its dissemination. At present it tends to become mandatory in many courts for various conflicts and is implemented in various ways depending on the court.
Public policies had been essential for its dissemination through the courts or through other bodies. In some moments and areas it has been financed by the states and other administrations. In others, dissemination has been sustained thanks to the pro bono work of volunteer mediators.
The position of the judges on mediation
Even outside these assumptions, almost all judges examine whether the parties have previously tried to resort to mediation or at least a negotiation in good faith. This issue is taken into account by them in the resolution of the litigation. They do not hesitate to be especially punitive with those who have despised going before this way.
Note: In Spain, more and more judges are betting on the use of mediation. There is a current that is strengthening that takes into account what has been the attitude of the parties and their lawyers towards mediation. They consider if the parties went to inform themselves, condemning in costas to that part that did not go to the process when the corresponding judicial derivation was made.
One of the questions that caused the most surprise in the attendees was knowing that some judges were active “mediations,” called settlement conference. </ Em> He told us that of course this was questioned, because neither the parties, nor the Lawyers could feel free to carry out a negotiation by being afraid to reveal information that could be taken into account in a later process. Thus, he told us that insisting on having a settlement conference </ em> was not general, but only a possibility, and that there are judges who reject this function, aware of the problem it poses.
As possible causes of the enormous expansion and even growing acceptance of mediation, it cited its effectiveness, the release that it implied in the overload of the courts, the diffusion by the lawyers who found a new way of developing their work, and the attitude of the customers themselves who, satisfied with the solutions found, have increasingly demanded this system. All this has facilitated their knowledge and use.
The lawyer’s opportunity in mediation to assert his work and the economic performance of his work in the mediation process
Lawyers in the United States, far from seeing mediation as a problem or a threat to their business, discovered in it an opportunity. One of the reasons was the need to be more effective in their negotiations since, due to the increase in the number of these professionals and their increasing mobility throughout the states, it was not as simple to negotiate between lawyers as it was 35 years ago when in each practically all of them knew each other and forged relationships that allowed a better collaboration between them.
In turn, they find no obstacle in collecting good minutes as they may present to go to court. And is that his role in mediation as lawyers on the part is very intense. They explain to their clients what it is and prepare with them the strategy to follow, before starting the mediation and during it. They prepare the documentation, and analyze and propose the alternatives, even if the mediation does not reach an agreement. Far from supposing a reduction of income, those lawyers who know the mediation and have developed capacities to move in this area are very demanded.
The lawyers also have a very active participation also in the pre-mediation phase. It is they who choose the mediator, usually based on their experience in mediation with certain types of conflicts. Also for his profile, his skills and personal character, and for his style of mediating. For all this is considered what can be more useful, also taking into account what is the profile of your client and the other party, and the characteristics of the case.
Clients prefer lawyers who can and do act in both areas, the judicial and mediation
He also gave great importance to how the lawyer works with his clients, what are the objectives that are marked and what are their limits, and the need to contemplate alternatives and avoid frustration if they do not reach an agreement in mediation. They also have to prepare their client, similar to when they go to a trial in order to explain what their role will be as part of the mediation, what will be the mediator and the lawyer, and how the sessions can be developed. Sometimes, the lawyer presents the case to the mediator as he would before a judge to further deepen the interests to safeguard and advance the negotiation, once the client feels comforted by his defense.
This is, in his opinion, especially important in matters of civil liability where although one of the parties can have an almost purely economic vision, the other can have a great emotional burden that needs to be channeled. Individuals plaintiffs usually have the need to be heard, regardless of whether it is a judge or a mediator who does it, it is good to be expressed, and for that you have to accompany them and prepare them. Woods also stressed the importance of “mitigating damages” when mediation has not reached an agreement because the client may feel frustrated and here again the role of the lawyer is fundamental.
In short, the lawyer develops a great activity in mediation. This has not diminished his work, although he has facilitated it. Neither has it reduced its income, since it uses a perfectly minute effort and time which is also appreciated by the client. Citizens and companies increasingly demand lawyers capable of working in this specialty.
Which companies demand mediation?
Among the large companies that regularly use mediation in the United States, he cited electrical, automotive, insurance and pharmaceutical companies.
Note: In Spain there are many companies in these and other sectors that are already using mediation to resolve their conflicts. Confidentiality prevents giving concrete examples. This confidencility is one of the benefits appreciated by companies that use mediation to resolve their conflicts and advance their negotiations.