Mediation Practice Guide:
A Handbook for Resolving Business Disputes (Second Edition)
By Bennett G. Picker (222 pages)
Reviewed by Mark Loeterman
“Good preparation is as much a key to success in mediation as it is in litigation.” That is the theme of Bennett Pickers’ newly revised handbook for resolving business disputes. Across the country, programs mandated by courts and governmental agencies have now exposed most business litigators to mediation. Yet, intuition rather than careful planning too often guides their involvement. After all, why spend much time preparing for a mediation that is non-binding, and where participation seemingly involves no risk? The reason, according to Picker, is that lawyers who understand the process and are well prepared can add significant value for their clients.
Client participation is one of the main features of mediation, and Picker analyzes step-by-step how to prepare the client’s representative as a presenter of information, a negotiator, and a decision maker. The selection of a client representative based solely on their knowledge of the subject matter, Picker argues, is not enough. Someone with the ability to recognize potential solutions, and who is a persuasive and effective communicator, can give the client a distinct advantage in the negotiations.
The author uses case studies to illustrate how mediators take advantage of strategic interests and relationships to craft agreements that would be unavailable in the “win-lose” environment of litigation. Instead of exchanging only money, the “currency” of settlement may take the form of price discounts, time extensions for performance or payment, and changes in territorial rights. As an example, Picker describes a patent infringement action by an inventor against a Fortune 500 company. In normal times, such a claim might be considered ordinary. If, however, the company was about to be acquired, that same suit could give the inventor enormous leverage, jeopardizing the company’s vital interests and creating a powerful incentive for it to conclude a deal. Through mediation, the parties explore a resolution tailored to their needs in a confidential setting.
Of course, mediation is not a panacea for every dispute. It may not be appropriate in cases where a party seeks immediate equitable relief or the other side’s claim is plainly frivolous. Here, Picker includes a “suitability screen” to assist in making that determination.
Don’t be fooled by the book’s slender size and large print. Despite a mere 124 pages, it’s not for lightweights. Picker’s guide is packed with sophisticated advice, and loads of valuable practice tips, charts and checklists. In the expanded appendices (nearly 100 pages), readers will find sample forms and resources offering a more comprehensive treatment of theoretical issues. Above all, Picker’s work is highly readable and user friendly.
Society, in recent years, has experienced a rapid change in the culture of dispute resolution and the emergence of new ADR processes. While a casual familiarity with mediation may have sufficed in the past, without a better understanding of basic negotiation principles and how to prepare for the process, litigators and their clients will not realize mediation’s full potential to settle disputes early, cost-effectively, and fairly. In this regard, Bennett Picker’s mediation primer will earn the appreciation of lawyers and business executives alike, and is an important contribution to the field.
