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David Rodd, a mediator with the New York office of JAMS, the alternative dispute resolution powerhouse, does not get hugged every time he helps parties resolve a dispute. But he definitely gets more hugs than he did in his previous life, as a litigator at Cravath, Swaine & Moore. He has even participated in group hugs on occasion. He likes his job a lot, for that reason. “It feels good to be hugged,” he said. “It feels good to help people resolve their differences.” Lawyers appear to like mediation too. In a survey of JAMS clients last year by an independent firm, an extraordinary 95 percent of the respondents said they would use JAMS again, and almost as many said they would use the same mediator again. JAMS, which handles about 8,000 mediations a year nationwide, is the largest private provider of mediation services in the country. Plaintiffs’ lawyer Joseph Garrison praised the mediation process, in which a neutral third party assists disputing parties to reach a negotiated settlement, as “much better than a settlement conference with a judge.” He said his office, the New Haven, Conn.-based Garrison, Levin-Epstein, Chimes & Richardson, has used mediation maybe 50 times. And mediation’s fan club is just getting bigger. In the first five months of 2001, cases in JAMS’ New York office soared by more than 50 percent compared with the first five months of 2000. Much of the growth was in employment, but mediation of business disputes is rising as well, especially in the intellectual property, Internet-related and international arenas. Even the agencies are jumping on the bandwagon. According to JAMS mediator Michael Young, the copyright office recently asked JAMS to mediate a royalty issue involving Internet broadcasts of concerts. 90 PERCENT SUCCESS RATE The good will mediation generates is easy to understand considering that the success rate, at least at JAMS, hovers around 90 percent. And a one or two day mediation, which is typically how long they last, can bring an end to a litigation that has dragged on for years. In addition to time and money savings, lawyers and their clients find a number of other features of mediation attractive. Perhaps most appealing is the chance to have a skilled “neutral” — as mediators are called in alternative dispute resolution parlance — available to shepherd a mediation through to resolution. A private mediator, unlike a judge, can devote his full time and attention to the mediation at hand. Discussions can and do go well into the night, JAMS’ Ross said, adding that he knows the mediation went late “when I come home and my wife is asleep.” Court-run settlement conferences, in contrast, are usually too short and “too much of a pick a number” exercise, Garrison said, although he added that federal magistrate judges were often quite good, and willing to give the discussions a full day to boot. Private mediators also offer a flexibility that traditional court-directed settlement conferences do not. For instance, one can bring in a co-mediator, such as an expert in the field or even a trusted friend of the parties, as Ross did in a dispute between two feuding brothers. Choice of mediator is also another obvious advantage over the courtroom. “You get a known quantity,” said Robert W. Gottlieb, a partner at Rosenman & Colin, who said he has used JAMS “half a dozen times,” mainly in partnership and construction disputes. At JAMS, lawyers can cherry pick among an impressive crop of legal minds. Numbering among JAMS’ 200 neutrals, for instance, is Ambassador Richard Sklar, who came over to JAMS after heading the U.S. program to redevelop Southeastern Europe. JAMS also recently lured Chief Magistrate Judge Edward Infante from the U.S. District Court for the Northern District of California, who is widely considered one of the best settlement judges around. Finally, mediation is often perfect for employment disputes and other emotionally charged situations, where the client needs to vent. A good mediator will “let [the client] say his piece, and then set the tone for proper behavior,” said Philip M. Berkowitz, head of the employment group at Salans. “It’s key that everyone can walk out of these things with their head held high,” he added. “It’s a personal, intimate process for many involved,” said JAMS’ Ross, who handles a lot of employment matters. “I never leave the therapy part at home.” Mediation is not without its limitations. A lot depends on the skills of the neutral. Plaintiffs’ employment lawyer Ann Vladeck, of New York’s Vladeck, Waldman, Elias & Engelhard, who said she has successfully used a mediator a dozen or so times, in part faulted the mediator for the one case that did not settle. She is still a fan of mediation, though. “You can go to a five star restaurant sometimes and get a bad meal,” she said, “but it’s still a great restaurant.” For that reason, Vladeck advised lawyers considering mediation to research whom they select. “Talk to people who’ve had similar cases to yours, and ask their opinion of the mediators they used,” she said, adding that lawyers should also be sure to get information “from both sides of the aisle.” COST IS A FACTOR Mediation can also be expensive. JAMS’ Young said that fees typically run from $350 to $600 per hour, although some of the ex-judges in JAMS’ California offices charge up to $15,000 per day. With these kinds of fees, it is not surprising that JAMS has been criticized as a courtroom for the rich. But when the stakes are high, cost is less important than getting the right person, said JAMS CEO Steve Price. “It’s like heart surgery,” he said, “wouldn’t you choose the best person you could possibly go to?” Lawyers who use mediation largely agree. In last year’s survey of JAMS clients, two out of five said it was “expensive but worth it.” Mediators work hard for their money, though. Ross recently successfully mediated a class action suit against TWA in which nine women alleged they were sexually harassed by supervisors at Kennedy airport. The mediation stretched out over 18 months, with maybe 10 face-to-face sessions and “dozens and dozens of phone calls, by far the longest mediation I have ever conducted,” he said. It was an enormously emotionally draining experience,” Ross said, adding that at one point he felt like crying, “but didn’t.” JAMS CEO Price agreed: “It’s very stressful work. Mediators tell me they’d rather be at the dentist’s office.” But there is nothing like the payoff of a successful outcome, for everyone involved. Price described one such scene which recently took place at JAMS’ Los Angeles office. The dispute was between a rock group and their talent agent. “All day they were going at it,” he said, “but they finally came to a resolution at the end of the day.” Afterward, Price said, when everyone came out into the lobby area, the musicians took out their instruments, formed a circle around the neutral and serenaded him. “They were celebrating their mediator,” he said.

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