September 19, 2016 By: David Contant
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As legal fees continue to rise, business professionals are often faced with a difficult decision. Should I attempt to resolve this dispute on my own, or should I retain a lawyer with expertise in dispute resolution?

In his book Outliers: The Story of Success, author Malcolm Gladwell examines what it takes to be successful. Gladwell argues that innate talent will never become expertise without a tremendous amount of practice. Gladwell cites research indicating that the “magic number” of hours it takes to achieve expertise is 10,000 hours.

Most people will probably not spend 10,000 hours developing expertise in dispute resolution. That’s 40 hours/week for nearly five years! As a litigation professional, it took me a long time to get accustomed to alternative dispute resolution, and I learn more every day. I still recall my first exposure to mediation over ten years ago.

I am a freshly minted lawyer. I have an almost brand new Blackberry Quark. It sends email to my cellphone! I’m assigned a case. My guy allegedly skimmed money from some type of shady retail distribution operation. Deny, deny, deny… There is a last-minute document produced during discovery. An audio tape of my client? Wait – did he just admit to taking the money? The lawyer says something about a “statement against his own interest?” Man, this law stuff is complicated…

The lawyer for the other side is seasoned. He suggests we use his office. It will save money. Makes senses to me. He proposes a mediator. This guy seems okay. What do I know? We meet at the lawyer’s office in midtown. It’s small. We start in the boardroom. Then, the other lawyer and his client retire to the “break-out room” (which I later learned was the lawyer’s office). The mediator disappears as well.

We wait. And we wait. And we wait some more. They sure have been gone a long time. Finally, the mediator reappears with an offer, but before we can make a counter he disappears just as fast. The guy is like Houdini. We get sweated all day in the boardroom. I swear the heat has been jacked-up. It’s uncomfortable. There’s no food or water. There’s no activity whatsoever between noon and 2 p.m. I’m pretty sure the other lawyer and the mediator snuck out the back for lunch down the street. Did I see a Bodega on my way in? Finally, by mid-afternoon the receptionist takes pity on us and brings us some crackers and bottled water.

The case settles around 5 p.m. My client agrees to mortgage his house and pay back the money. We sign documents. The other client is nowhere to be found (I’m pretty sure he left after lunch). The lawyer and the mediator have a good laugh about all of the cases they have worked on together. Hilarious. Mediation 101 at the University of Hard Knocks is complete…

Successful dispute resolution takes practice and preparation. Our lawyers have logged their 10,000 hours of practice. We have access to specialized research tools that allow us to obtain and study precedents both for and against your case. We can also assist by being emotionally detached from the case, and focusing on your interests, rather than positions.

You should rely upon the experience of your lawyer to provide guidance in terms of where to hold your mediation, and who to select as a mediator. As counsel, we can work with your mediator to structure the negotiation process, clarify facts and issues in the lawsuit, come up with creative options, and facilitate communication. We can also provide guidance in terms of when to walk away, and when to reengage in the negotiation process.

Practice may not make perfect, but it certainly provides value!

For questions about arbitrations and mediations, or any other aspect of litigation, contact Nelligan O’Brien Payne’s Mediation and Arbitration Group.

[This article was originally published on September 19, 2016 in Ottawa Business Journal]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.