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January 13, 2015 Practice Points

Developing Business: Mediation as an Opportunity

By Bruce Rubin

One of the priorities of the Section of Litigation is to increase membership by making members and potential members aware of the business development opportunities that can be provided by the ABA. One path to that end is to provide examples, such as the one detailed below, of practices that are not just good lawyering, but smart business development practices.

I recently represented a neighborhood association in a long-running dispute with a railroad. I arranged for a daylong meeting of the board of directors, conducted by professional facilitators, to help them understand how mediation works and, more importantly, to arrive at a list of priorities.

At the start of the session, each board member (approximately 15 members) seemed to have a different goal, many of which were not legally available. But by the end of the day, we identified one priority, and everyone agreed that it was so important that the other goals need not be achieved. So I had my marching orders as we entered the mediation.

I made sure that a critical mass of board members attended the mediation. These were leaders of the neighborhood association who had important positions with organizations having nothing to do with the neighborhood association or the dispute. Some of them were decision-makers for hiring legal counsel at those organizations. At the mediation, these board members had the opportunity to see how I represented them and what it took to achieve their priority. This has since paid off.

Our office represents many nonprofit organizations. These range from start-up do-gooder organizations that consist of the founder and a few volunteer board members, to large institutions with significant budgets and all-star boards. The directors of these nonprofits are almost always what would be referred to as outside directors in the for-profit world. In other words, these directors have “day jobs” unrelated to the nonprofit I am representing. They also often serve on other boards—both nonprofit and for-profit.

My goal is to draw in the board when it comes to resolving legal disputes. Actually, I start well before the mediation. I start as soon as I’ve been hired to help resolve the dispute. I want the board members to know about the dispute, the risks, the potential gains and losses, and the estimated costs. This is not just good governance and information that a savvy executive director of a nonprofit should want. It gets the board members invested in the dispute, so when the time comes to attempt to resolve it, they have traveled the path to a solution rather than have simply shown up to vote on a proposed resolution. And it gives them the opportunity to consider hiring me the next time they know of a problem that needs a solution.

Keywords: alternative dispute resolution, litigation, business development, mediation, resolution

Bruce Rubin is with Miller Nash Graham & Dunn LLP in Portland, Oregon.

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Bruce Rubin – January 13, 2015