Change of Direction

My wife, Jane Bell, was the first person to suggest I might have an aptitude for mediation. She has a great talent in general for “reading” people, and she knew that for many years I was interested helping people in some capacity beyond the traditional role of a trial lawyer.

While I was flattered that she thought I might have a knack for resolving disputes, I wasn’t yet able to hear the message. I was still caught in the adrenalin rush that often accompanies the life of a trial lawyer. By then I had been a trial lawyer for two decades.

At about the same time, however, at the conclusion of a settlement conference in which I was serving as an advocate for my client in a divorce case, the Honorable Kristina Lamar, then a Circuit Court Judge in Multnomah County, made a similar suggestion.

I had never given a thought to mediation. When I went to law school in the 70’s, there were no courses in mediation, settlement negotiation, or conflict resolution. I don’t even recall those words being mentioned.

What I shared with my law school classmates was a desire to be helpful (idealism was very much alive) and to score triumphant victories like Perry Mason, the fictional criminal defense lawyer of a popular television show that ran through my boyhood and teenage years.

But from the moment I took my first mediation training, now many years ago, I could feel the rightness of this path. It was as if the tumblers of the combination lock were clicking into place.

It was refreshing to find a process that offered families an alternative to the adversarial system. The language and approach of mediation were completely different, focusing on real conversations (rather than positional bargaining) and mutual problem-solving and consensus building. I could immediately see the benefit to families, especially parents who needed to co-parent their children after the divorce. This process sure beat the usual outcome of litigation, which resulted in polarization when one party felt he or she had “won” and the other had “lost.”

My transition to mediation was not immediate. There is never a way around dealing with internal resistance to change. Mediation certainly did not have the panache of trial lawyering. Also, I shared with many of my colleagues the mistaken assumption that advocating for a mutual, peaceful resolution was a sign of weakness. But I was attracted to this new path. I studied mediation and conflict resolution very deeply, taking extensive courses from some of the finest mediation teachers in the country.

Little by little, and then much by much, I shifted the major focus of my practice from litigation to mediation. I have now mediated hundreds and hundreds of family cases, and I have seen how effective the mediation process can be. Serving as a mediator (and more recently, as a collaborative attorney) has enabled me to touch more deeply my original impulse to help people. I also have many more options available to help people and their families.

In some ways my own career arc reflects the changes experienced by families in our community. Mediation was once little known, but in recent years has soared in popularity precisely because most people do not want the cost (financial and personal) of the traditional family law system. They also want to keep control of their lives and make their own decisions rather than have lawyers and judges make those decisions.

The traditional trial system is still an important process when needed. (The irony is that most of these cases end up being settled anyway.) But more and more families (even families embroiled in negative emotions) understand that the traditional process should be reserved for cases that cannot be resolved first through mediation; and mediation should be tried at the front end, not at the eleventh hour when lawyers have worked up a case that will probably not go to trial.

I am very grateful to have received the encouragement to pursue this path. It has made all the difference — for me and my clients.