How In-House Counsel Can Impact Mediations (and Visit With Dogs)
Companies are investing in more in-house counsel with litigation savvy to help shape their resolution strategy and partner with outside counsel. Today, those companies see the return on their investment in more efficient resolutions.
May 01, 2020 at 04:58 PM
7 minute read
In-house counsel can play a vital part in mediation because they know the inside workings of their business, according to Mark LeHocky, a former general counsel and now a mediator, arbitrator and special master based in San Francisco.
LeHocky recently talked with Corporate Counsel about the role of in-house counsel in mediation, along with how COVID-19 has impacted his work.
His background includes becoming a full-time mediator in 2012 after serving five years as general counsel for retail giant Ross Stores Inc. For seven years before that, he was general counsel for Dreyer's Grand Ice Cream Inc., navigating through its merger with Nestle S.A.
Before going in-house, LeHocky honed his litigation skills at two San Francisco law firms: Wilson, Ryan & Campilongo and Khourie, Crew & Jaeger, formerly Broad, Khourie & Schulze. He then became a principal in the boutique law firm of Freeland, Cooper, LeHocky & Hamburg, managing its complex litigation.
Below are excerpts from his conversation with Corporate Counsel, edited for brevity and clarity.
Corporate Counsel: In-house counsel have not always been active in alternative dispute resolution. When did that change and why?
Mark LeHocky: The change is most notable in recent years. Shortly before entering the general counsel ranks two decades ago, I also began mediating for the federal court in San Francisco. Then, I noticed that many in-house counsel were fairly passive in mediation sessions, let alone in pre-calls with, or the selection of, neutrals.
That has shifted more recently, and all for the good. Companies are investing in more in-house counsel with litigation savvy to help shape their resolution strategy and partner with outside counsel. Today, those companies see the return on their investment in more efficient resolutions.
CC: Who most often represents a company in these proceedings, the general counsel? Chief litigation counsel? Someone else?
ML: The higher the risk—financial as well as reputational—the more likely general counsel or senior litigation counsel are to attend.
CC: What is the key role of an in-house counsel in mediation?
ML: In many ways in-house counsel operate as both translators and mediators with their internal stakeholders. While outside counsel are legal subject matter experts, in-house counsel are experts in the client.
Companies vary wildly in culture, risk tolerance and decision-making. In-house counsel better understand their unique business, organizational dynamics, culture and what works—and what doesn't—in obtaining alignment around dispute resolution.
CC: Can you give an example of a recent mediation in which an in-house counsel played an important part?
ML: Sure. In a recent remote mediation involving a very large company, I didn't count on the general counsel attending. GCs are often overextended, as I well remember.
However, given the ease to attend via [videoconferencing on] Zoom—no plane flights, travel or stay overs needed—the general counsel participated throughout. The teamwork among the GC, senior in-house and outside counsel was terrific, with the general counsel leading the discussion of the trade-offs and direct and indirect costs of various alternatives.
Despite the huge differences at the start, the case resolved in a single session due in major part to the general counsel's active role.
CC: Did you use mediation much during the 12 years you were a general counsel, or the 20 years you were litigating for and against companies in private practice?
ML: Yes and yes. As a litigator, I mediated extensively, resolving disputes large and small, faster and more efficiently. Then, as a GC, I attended mediations when it might help communications with the other side.
That effort routinely paid off—better explaining our position, better understanding theirs, and helping everyone recalibrate when recalibration was needed.
We also tracked those outcomes, counting everything that mattered [including] outside and inside costs, people time, settlements, penalties and such. The net savings exceeded our expectations, prompting us to mediate early and regularly to diagnose and resolve most disputes.
CC: When and why did you start using remote mediation, just during the COVID-19 pandemic or before?
ML: I've been mediating remotely for many years, via Skype and other devices, working with people and companies in different time zones and countries. COVID-19 has been a game changer for all of us, but fortunately newer tools like Zoom improve remote mediations markedly.
CC: Describe how it works.
ML: Zoom allows mediators to set up separate virtual meeting rooms. As with an in-person session, each side has their own room or rooms, as well as separate breakout rooms for counsel, any carriers and, of course, joint sessions. The mediator then switches back and forth and can also move participants about—just like an in-person session.
CC: What are some pros and cons of trying to resolve disputes remotely?
ML: Tools like Zoom are easy to use. More importantly, they eliminate travel time and costs, which helps senior and junior folks make sense of attending. Good things typically come from that.
The biggest trade-off is the lack of in-person conversation and some nonverbal ways we all communicate. But there are workarounds, including pre-calls or conferences with in-house and outside counsel.
This pre-work helps build credibility and understanding as to objectives, interests and organizational dynamics as well as legal positions. Here again, in-house counsel can play a key role in shaping a productive path.
CC: Zoom hackers have been in the news lately. Have you had any problem with uninvited guests in your sessions?
ML: I've not heard of a Zoom hack in remote mediations. We follow a strict password protocol, and I can always monitor who's on the videoconference. The Zoom hack stories I've read appear to involve poor password protection, bored teenagers and hate groups—fortunately not my world.
Keep in mind that mediations are governed by state and federal confidentiality laws. Anyone disclosing or misusing conversations from a mediation, via Zoom or in person, is subject to severe sanctions.
CC: Have you had any glitches or humorous moments using remote videoconferencing?
ML: The glitches are generally small and readily fixable, such as people forgetting to unmute themselves or accidentally disconnecting. As standard practice, I provide my phone number, and we solve everything quickly via calls and texts.
On the humor side, my 92-pound black Labrador retriever, Gunnar, wandered into view during a recent Zoom mediation, prompting many comments and descriptions of others' pets. I assured everyone he had signed the confidentiality agreement.
It turned out to be a great respite from the tough conversations we were working through, and he received some credit for the settlement we reached.
Later, when I shared the story with my family, one daughter offered a note of caution. "Dad," she asked, "are you worried that next time they'll ask how much just to hire Gunnar?"
I wasn't. Now I am, a little.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLawyers Drowning in Cases Are Embracing AI Fastest—and Say It's Yielding Better Outcomes for Clients
FactSet Finds New Legal Chief at Financial Data Rival S&P
So You Want to Be a Tech Lawyer? Consider Product Counseling
Trending Stories
- 1Justices Will Weigh Constitutionality of Law Allowing Terror Victims to Sue PLO
- 2Nevada Supreme Court to Decide Fate of Groundbreaking Contingency Cap Ballot Measure
- 3OpenAI Tells Court It Will Seek to Consolidate Copyright Suits Under MDL
- 44th Circuit Allows State Felon Voting Ban Challenge to Go Forward
- 5Class Actions Claim Progressive Undervalues Totaled Cars
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250