David Zacks says mediation requires a different mindset from litigation: “This is not about winning—it's about compromise.”
David Zacks says mediation requires a different mindset from litigation: “This is not about winning—it’s about compromise.” (John Disney/Daily Report)

Kilpatrick Townsend & Stockton lawyer David Zacks has opened his own mediation firm, Zacks Resolution, after more than 40 years as a litigator.

“This is the beginning of what I want to do for the rest of my career,” Zacks said. “The older I get, the more I believe that litigation adds such stress on the parties, and there is such a cost and stress on the system.”

Zacks, 72, is still senior counsel at Kilpatrick Townsend, where he represents large health care companies and plaintiffs in catastrophic injury cases, but he said he’s shifting his focus to mediation.

There are several established alternative dispute resolution firms in Atlanta that offer a plethora of seasoned lawyers and judges as neutrals, but Zacks said he opted to open his own mediation shop instead because “I like doing my own thing.”

Kilpatrick Townsend is his landlord for Zacks Resolution, but he is the sole proprietor for the mediation enterprise, which is separate from the firm.

Alternative dispute resolution, he said, is faster, less stressful and less expensive than litigation—and results are confidential, unlike a case that goes to trial.

His rate for mediation is $500 per hour, which he said is less than his hourly rate as a Kilpatrick Townsend lawyer, and the two parties split the fee.

“I’ve found great satisfaction in saving parties time, money and stress,” he said.

Mediation requires a different mindset from litigation, he said. “You have to come in with a view that this is not about winning—it’s about compromise.”

Zacks said he’s mediated cases from time to time over the past 20 years, as the neutral or as an advocate for one of the parties. He is a certified mediator and arbitrator with the American Health Lawyers Association and a founding member of the Georgia Academy of Mediators and Arbitrators.

For his new endeavor, Zacks wants to serve as the neutral. He also will evaluate cases to assist a client in figuring out the best strategy early on for resolving a case.

The cases Zacks has mediated over the year are informed by his diverse litigation experience and his experience working with a large nonprofit. He served as the board chairman of the American Cancer Society, after volunteering for the group for many years.

He has mediated, for instance, a billing dispute between a hospital and third-party payers and a dispute between a class of plaintiffs and a knee-replacement manufacturer.

Zacks’ practice representing both health care companies and plaintiffs in catastrophic injury cases is unusual for a lawyer at a large firm. He’d already been doing both at his firm, Knox & Zacks, before it merged with Kilpatrick Townsend 20 years ago.

He estimated that he’s handled about 100 catastrophic injury cases over his career, but he said the plaintiffs’ work has not created conflicts at Kilpatrick Townsend because the firm does not represent insurance companies. Rather it represents companies in insurance coverage disputes with insurers.

Zacks said he does not envision Kilpatrick Townsend clients using his services as a mediator, explaining that if he were to serve as a neutral in mediation between one of the firm’s clients and another party, the other party might not perceive him as very neutral. Rather, he expects referrals will come from his colleagues in the legal community.

In mediation, the neutral’s job is to assist the parties in coming to a mutual resolution of a dispute. By contrast, in arbitration the neutral makes a binding judgment on a case.

“In mediation, you are trying to reach a fair compromise, not a win. I do think there’s a difference,” Zacks said.

“As a lawyer, it takes high energy to produce a win at trial,” he continued, adding that he wants to deploy that same level of energy as a neutral to help the parties reach a compromise.

Zacks pointed out that most cases don’t go to trial anyway, so he thinks the parties might as well give mediation a try early on in a suit—even before discovery is completed. “Get the key ingredients and if the case does not resolve [in mediation], you can go back and do more discovery,” he said.

Briefly

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