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Published in U.S. 1 Newspaper on June 14, 2000. All rights
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When Winning is Nothing
E-mail: MelindaSherwood@princetoninfo.com
Compromise may not whet the appetites of the vengeful,
but there’s one thing worse than coming to terms with your opponent:
losing all your money in knock-down, drag-out lawsuit.
“Litigation,
in many cases, is not a win-lose outcome, but a lose-lose
outcome,”
says Hanan Isaacs, an attorney in 601 Ewing Road and president
of the New Jersey Association of Professional Mediators
an organization that promotes mediation as an alternative to
litigation.
Mediators help people resolve a problem outside of the cumbersome
court system, says Isaacs. “Trials are the least efficient, most
expensive, and longest dispute resolution process of all,” he
says. “The private practice of mediation has discovered this
better
mousetrap, and now the court system is beginning to use it.”
In fact, mediators like Isaacs are being called on more than ever,
particularly in employment and divorce cases. “One of the biggest
growth areas is labor employment disputes,” says Isaacs. “The
EEOC gets about 75,000 new filings per year, so they are introducing
mediation practices in their agency.” Even the U.S. Postal
Service,
infamous for its disgruntled employees, has instituted a program to
mediate all grievances and employment matters.
Like many in his field, Isaacs is backing a new movement to relax
the current national bar association restrictions on fee-sharing by
professionals other than attorneys who assist in the mediation
process.
Multi-Disciplinary Resolution, as it’s called in mediator circles,
would allow professionals such as psychotherapists, accountants, and
even engineers to get involved in the mediation process. A
psychotherapist
might help on custody cases, for example, or a CPA might provide
counseling
in financial disputes. “It is the hottest topic on the
professional
block these days,” says Isaacs.
Multi-Disciplinary Resolution is also the focus of the annual
conference
on Alternative Dispute Resolution sponsored by the New Jersey State
Bar Association, the New Jersey State Society of CPAs, the American
Arbitration Association, and Corporate Counsel Association on Friday,
June 16, at the Sheraton at Woodbridge Place in Iselin. Keynote
speakers
are Harry Mazadoorian, professor of law at Quinnipiac College
School of Law, and Justice Gary Stein of the Supreme Court of
New Jersey. Call 732-214-8500.
A Rutgers graduate, Class of 1975, Isaacs has been both a visionary
and rabble-rouser in his field since he got his law degree from
University
of North Carolina. In 1982, Isaacs and his then-partner Robert
Felmeister challenged the New Jersey Supreme Court’s ruling that
severely limited attorney advertising and prohibited television
broadcasts.
“We were these two legal eagles who wanted to go on the airwaves
and test the new marketing techniques,” he told U.S. 1 in 1995.
“We had a choice of going to court versus just doing it and saying
you can’t stop us. Commercial speech is at the bottom of the First
Amendment barrel but it is still in the barrel.”
The two attorneys were accused of breaching the rules regarding
attorneys’
ethics, and nearly disciplined by the court. But the United States
Supreme Court intervened: a decision on a similar case came in at
that time, which supported Felmeister and Isaacs’ position. Within
a couple of years of fighting, the present rule was established, which
allows the legal community to advise the public about the availability
of legal services with few limits.
Today Isaacs advertises little but gets plenty of
airtime
among his peers as a spokesperson for alternative dispute resolution.
He was recently designated the ADR Practitioner of the Year by the
New Jersey State Bar Association.
As head of the NJAPM, Isaacs wants to foster an environment where
professionals of all backgrounds can be qualified as mediators, for
which there is no state certification (Isaacs is working on developing
his own program). “No one discipline has a monopoly on
wisdom,”
says Isaacs. “I always look to bring experts in. In other
countries,
fee-sharing and multi-disciplinary practices are the norm. Some, like
me, are very much in favor of it.”
Multi-Disciplinary Resolution will be debated by the American Bar
Association this summer, says Isaacs, and “billions of dollars
are at stake in the turf war.” “The District of Columbia now
allows fee-sharing, but no other state court system approves it. I
predict that those who favor multi-disciplinary practice will prevail,
but that it will take a number of years to create the system, work
out the kinks, protect the public, change the naysayers’ minds or
move past them.”
Another one of Isaacs’ more ambitious projects is introducing
mediation
into the mainstream through the New Jersey Dispute Resolution Center.
He is also part of a statewide initiative to prevent youth violence,
known as KITES. “We want New Jersey to be a model for how to avoid
becoming Littleton, Colorado,” he says.
In the legal profession itself, tolerance and mediation
is still a relatively new notion, says Isaacs. “When I went to
school 24 years ago the model was built on the assumption that your
goal is to go and knock the other guy’s socks off, and that matters
are resolved in a trial,” says Isaacs. “Very little attention
was paid to the reality that most cases don’t get tried, they get
settled.”
In fact, only three percent of cases are actually tried, says Isaacs.
Alternative dispute resolution is just a means of cutting to the
chase,
circumventing the legal “red tape” and saving people a lot
of pain in the process. “Mediation is not an alternative to trial,
it’s an alternative to settlement — bad settlement,” says
Isaacs. “Judges push people to settle the case, and then the
people
say why didn’t we do this earlier on? I heard one guy say, `It
sickened
me when I realized that my wife and I paid our lawyer’s child’s
tuition
with the tuition money of our children.’”
Since the courts are over-burdened, a lot of judges are encouraging
mediation in cases involving business or labor, estate, and divorce
disputes. Where arbitration is not recommended is in cases involving
physical violence, substance addiction (“You can’t negotiate
reliably
with someone who is strung out,” says Isaacs) and “slam
dunk”
cases.
Isaacs (609-683-7400, www.hananisaacs.com) is often hired to work
out partner, corporate, or family disputes. “Often they don’t
want to go into the public court system because it costs too much
and takes too long,” he says, “and it’s highly
unpredictable.”
Mediation is also more effective where relationships — both
business
and personal — are at stake. “Usually mediation occurs when
both parties recognize that they’re holding a tiger by the tail,”
says Isaacs. “You have a totally unsolvable dilemma, but a neutral
person can get it to a solution that everyone can live with.”
One of the first things a mediator will do is try to determine how
important it is to both parties to preserve the relationship. The
kind of question Isaacs might ask his clients: Tell me what you lose
if you win this matter, and what you gain if you lose it? “You
can do some counter-intuitive investigation,” he says. “That’s
what Henry Kissinger did in international diplomacy. Often times you
get people highly motivated and irrationally committed to something
that if they really investigated they would realize it’s not worth
it.”
And, unlike in court — where the judge must remain impartial —
clients can really bend the ear of the mediator. “One side can’t
sit down with Judge Judy and say I just want to tell you my side in
your chambers,” says Isaacs, “but since a mediator doesn’t
decide, it’s absolutely proper and acceptable.”
If mediation fails, the case can always go back to the trial calendar.
“Really, all law suits are personal,” says Isaacs. “People
can say it’s about money, but it’s really about an insult. Trials
should be the last resort. As Lincoln advised his fellow lawyers in
Illinois Bar the 1850s: Tell your neighbors to settle their disputes.
The nominal winner is often the loser in time, money, and energy
spent.”
— Melinda Sherwood
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