Corrections or additions?

Published in U.S. 1 Newspaper on June 14, 2000. All rights

reserved.

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

(www.njapm.org),

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


Next Story


Corrections or additions?


This page is published by PrincetonInfo.com

— the web site for U.S. 1 Newspaper in Princeton, New Jersey.

Facebook Comments