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Recovering Lawyer
LITIGATION, Jun 27, 2001
by Leonard Novarro
Mediator Scott Markus gave up his law practice out of frustration, feeling that litigation was not the answer.
Scott Markus is a "recovering lawyer," he says.
A full-time mediator for the last nine years, Markus, 45, gave up law practice out of pure frustration. That says a lot about a man who is personally steeped in the law. And his family is wed to it.
Markus's father, Richard, is a retired trial and appellate court judge in Ohio; his sister, Linda, an attorney, is married to a lawyer; and his brother, Kent, and his wife are law professors in Columbus, Ohio.
Scott's wife, Barbara Donnell, is not an attorney but her father, John, practiced law in St. Louis. Her grandfather, Forrest, was also an attorney.
So, it seemed only natural that Markus would not only enter the profession but would probably die in it. Or at least make judge.
But it didn't quite work out that way.
"I grew very frustrated with the litigation process and saw it as destructive and inefficient. And those are the best two words to describe it," Markus says. "There had to be a better way."
That way was dispute resolution, then a relatively new concept, especially in San Diego. Only one other lawyer in San Diego engaged in alternative resolution at the time.
Upon graduating from the University of Oregon School of Law in 1980, he was a business litigator until 1992. By that time he had had enough and was ready to make a change.
"The notion that a lawyer would go out and provide professional neutral service and make a living doing it in 1992 ... there were many who said I was foolish and would never succeed," Markus says.
"At the time, frankly, there was nobody in the field," David Casey, a partner in San Diego's Casey, Gerry, Reed & Schenk, says. "When it began, there were significant questions about whether mediation would be successful at all."
But Markus was determined to make it work.
At first, he became affiliated with the Bates Edward Group of San Francisco, opening up their San Diego office. After the group went through several mergers, the most recent with JAMS, he elected to go out on his own.
"I disagreed with their emphasis," Markus says, explaining why he left.
Markus says his style of practice did not jibe with JAMS' approach.
"There was a significant amount of venture capital in the company, and I felt the philosophy was determined by that," Markus says. "They tried to market a brand, but this is not a brand. It's a very personal, individual business."
Markus decided to put some of the business background he had picked up as an economics major at Middlebury College in Vermont to open his own firm. Steve Kruis joined two years later, in 1998. The firm, now known as Markus Kruis Mediation, also includes attorneys John Adler and Tony Pantoni on a part-time basis.
“In 1992, the question was: ‘Why would anybody use this service,’” Markus said. “In 1996 the question was starting to become: ‘Who would you want to use to provide this service?'"
Today, the question might still be, 'Who would you use?' But it would be more difficult to answer because of the proliferation of mediator wannabes, Markus says.
"Now, everybody is trying to get into the market. I see ads all the time from people trying to get into mediation," he says. Markus notes that while barbers need a license to cut hair in California, one need only hang out a shingle to mediate or arbitrate a legal dispute.
However, Markus sees the industry as entirely market-driven.
"Interestingly, the marketplace seems to sort out those who can and those who cannot. It takes perseverance," he says. "You have to have some skill set in terms of providing the service itself. You have to be somewhat effective, or each time you see a customer for the first time it will be your last time."
Much of Markus's business is repeat, a facet of the profession he enjoys. He loves walking into a room and seeing familiar faces.
And he enjoys the variety. One day he may be mediating a case from at the foot of Wilshire Boulevard and Ocean Avenue in Santa Monica, overlooking the Pacific. The next, he might be atop the World Trade Center in Long Beach – and once he mediated a case on the 74th floor of the Empire State Building in New York.
"What's interesting to me about the business is the people, the best lawyers the state has to offer, and fascinating people. You hear their stories and how they came to be plaintiffs in litigation," Markus says.
Markus has mediated cases for, among others, John Moores, owner of the San Diego Padres; and John Walton, son of Wal-Mart founder Sam Walton.
Since 1999, Markus has also been a member of the International Academy of Mediators, a by-invitation only professional society that meets semi-annually to discuss mediation. Markus also serves on the Panel of Distinguished Neutrals for the CPR Institute for Dispute Resolution in New York.
He handles about 150 cases per year, most of them complex insurance, personal injury and employment matters.
"There are some lawyers out there who say, 'I am going to be a mediator today and duplicate my legal income.' But you have to be in it for the long haul so you can build a business," Markus says.
He earned $17,000 his first year, but pulls in a multiple six-figure income today.
"I'm glad I paid my dues," he says.
A growing number of Markus' cases in recent years involve employment disputes ranging from sexual harassment and race and gender discrimination claims to improper firing or layoffs.
"There's been an evolution in the court system," Markus, who mediates an average of two such cases a week, says. "Workers are becoming more assertive in protecting their own rights against employers. There are lawsuits now that didn't exist 25 or even 20 years ago."
Like his decision to forego the practice of law nine years ago, Markus' mediations are marked by doggedness.
Other than that, he claims his style is not unique.
"He will stay with you until the wee hours of the night if that will get the case resolved," Mia Farber, an attorney with Los Angeles' Jackson, Lewis, Schnitzer & Krupman, says.
"I don't think he ever gives up. He's constantly exploring all potential avenues with all sides," Casey says.
In fact, Markus credits one successful resolution of an 11-month-long dispute to "pestering people until they were ready to resolve."
Once of the things Markus tells attorneys when they first meet him is, "You have to fire me. My job is to resolve this case until someone tells me it's not my job."
What Markus has a knack for doing is getting both sides into what attorney John Hillsman calls "that sweet zone," an area where a case is going to settle.
"He arrives at that very early in the process and drives both parties there," Hillsman, a partner with San Francisco's McGuinn, Hillsman & Palefsky, says.
"You don't find yourself arguing about liability problems or jurisdictional questions. He gets us in a room at the end of the day when the gap is narrow," Hillsman says. "He's always been able to do that."
Markus's "ultimate pressure point," as he calls it, is the trial date, which he sometimes hangs over both sides.
"That's what's going to drive the process. If nothing else is going to cause the case to settle, that will," he says.
Markus is especially adept at making both sides see the true value of a case, Jeffrey Behar, a partner in Long Beach's Ford, Walker, Haggerty & Behar, says.
"He sizes up the litigants and puts out the strengths and weaknesses of your case. He lets you know what your downside is and is very schooled in jury verdicts," Behar says.
Using that approach works particularly well with construction defect cases, Markus says. The greatest cost in those cases comes 60 days before trial, when attorneys are preparing for trial and taking depositions from lay and expert witnesses. And that's when Markus puts on the pressure.
The way Markus sees it, mediation is not an event but a process. As such, it can be continual, and it is ever changing. In that sense, so is his style.
In one instance, he may be more assertive, as he says he was recently with an East Coast client, a former attorney who came on strong.
"I was more direct with him, because that's the way he does business," Markus says. "He complimented me afterwards on my negotiating technique."
In another case, he had to go out to a plaintiff who refused to leave her car in the parking lot because the person who had been harassing her was somewhere in the building.
“She was understandably nervous. Assertiveness would not have been the right approach for that individual," he says.
The difficult cases are often the most satisfying, especially when there are a lot of parties involved.
One such case recently involved five plaintiffs, all represented by the same lawyer.
At one point, the lawyer confidently announced that all of his clients had agreed how the settlement money should be distributed.
"And that's when the process broke down," Markus says. "Everyone wanted something else. Not only did I have to get the right amount of money, but I had to figure out how to split it up. Those cases are the most challenging."
His most memorable case, however, occurred at the beginning of his career, when he negotiated a $1 million settlement for a 4-year-old boy who lost an arm in a traffic accident. Afterwards, the boy sent him a crayon drawing as a thank you.
"I cried when I received it," Markus says. "I still have that drawing. That was the day I decided I needed to be doing this [full time]."
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- Scott Markus
- Law school: University of Oregon School of Law, 1980
- ADR group: Independent
- Service area: Nationwide
- Case types: Business, complex personal injury and employment matters
- Career highlights: Markus Kruis Mediation, 1996-present; JAMS, 1995-96; Endispute, 1994; Bates Edwards Group, 1992-93; Duckor & Spradling, 1981-92
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