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6 février, 2008 16:08

Zack Needles

The Legal Intelligencer

02-04-2008

A relatively new practice area could soon be cropping up frequently throughout western Pennsylvania as the result of a recent federal court order in the Western District of Pennsylvania.

Alternative dispute resolution is popping up more and more on Western District firms' lists of expertise, particularly on those of midsize firms in Pittsburgh.

Much of the reason for this stems from the court's district-wide adoption last month of Local Rule of Practice 16.2 which requires parties involved in civil actions that aren't Social Security cases or cases involving prisoners to utilize a form of ADR in the litigation process.

ADR is a broad term that comprises a number of methods used to resolve disputes out of court in a timely manner through the assistance of a neutral third party. The three forms offered by the court are mediation, arbitration and early neutral evaluation, with training in these areas currently available.

"[ADR] seemed like a good idea whose time had come," said partner Louis B. Kushner of Pittsburgh firm Rothman Gordon about why he began mediating cases as part of the court's initial test pilot program in 2006.

Since then, Kushner has mediated more than 300 cases and estimates he's been able to get parties to reach settlement in about 85 percent of them. Last month, 28-attorney Rothman Gordon announced the addition of a practice area devoted entirely to ADR.

Kushner said mediating now accounts for 40 to 50 percent of his practice. His lone colleague in the new department, partner Stephen H. Jordan, said he welcomes the addition of ADR to his repertoire but doesn't anticipate having to become a full-time mediator in order to handle the workload.

"It's certainly a growing area," he said. "It's a nice segment to our practice, but I don't think it's going to supplant our regular practice."

Both Jordan and Kushner are also labor and employment lawyers, a practice they both said has provided them with extensive mediating experience.

Other Pittsburgh firms including Babst, Calland, Clements & Zomnir, Dickie McCamey & Chilcote and Robb Leonard Mulvihill list ADR as a full-fledged, stand-alone practice area on their Web sites, though most say it's been there for years and they've been using it to settle cases long before it was a court-ordered mandate.

Frank C. Botta, a partner at Thorp Reed & Armstrong, said the firm has considered ADR a separate practice area for almost 10 years.

"We're far in advance of what the federal courts have implemented," he said.

David B. Fawcett, a partner at Dickie McCamey and co-chairman of the firm's ADR group, said the firm has recognized the method as a legitimate practice area for at least three years, but he added that he was being called upon as an arbitrator and a mediator through individual referrals long before that.

"People would call me [to be a mediator] directly," he said of the time before ADR was a court mandate and a potential moneymaker. "Now it's become a competitive business. Even the largest firms have practice groups and want to be involved at rates similar to what they charge for their trial practices. When I was a young lawyer, we used to do this kind of stuff for free."

Fawcett isn't the only one who can sense the buzz ADR is gathering in the Western District now that it's a requirement.

"It's been picking up for a long time," said Robert H. Shoop Jr., a partner at Thorp Reed and a trained mediator and arbitrator.

Those who believe the federal court's ADR mandate will have a positive effect on clients, lawyers and the court system tend to cite the lengthy, costly process of litigation that often leaves the parties involved feeling disillusioned by the final verdict.

"Our court dockets are jammed, and litigation is getting expensive," Shoop said.

"Justice delayed is justice denied," said Kushner. "This speeds up the whole process."

Fawcett agreed: "The idea [of ADR] is to get resolution before too much money is spent while allowing the parties to present their cases and, hopefully, get resolution."

Peter Mansmann, a partner at the Pittsburgh office of Mansmann & Moore, said ADR can be helpful even when an agreement can't be reached before trial.

"It really helps us on the plaintiffs side because it narrows the gap between demands and offers," he said, offering an example. "If we have a trial where we're asking for $350,000 and the defendant will only agree to $100,000, when we get back to the judge he's going to have a range of $100,000 to $350,000 to work with when deciding the case rather than $350,000 and zero."

Mansmann said his firm has been involved with ADR for more than 10 years but considers it to be "just one of the things you do to get a case settled" as opposed to a practice group in and of itself.

Despite ADR's increased exposure since the court mandate and the fact that some of the firm's attorneys are trained mediators and arbitrators, the Mansmann & Moore Web site does not list it in the "Practice Areas" section.

"I never even thought about it," he said. "It's probably not a bad idea to do that, though."