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Settling Cases Quickly Is San Diegan’s Specialty
Los Angeles Daily Journal, Jul 10, 1998
by Tom Orewyler
Most experienced litigators and mediators say that trust is a key to any successful mediation. Just ask Scott Markus, a San Diego mediator who has firsthand experience garnering candid reactions from attorneys and parties.
For instance, in an employment case several months ago over which he presided, Markus began to believe the plaintiff would make a poor witness. During a meeting with the plaintiff’s attorney, he let his opinion be known.
“I think your client is probably a 3 on a scale of 1 to 10,” Markus said.
The attorney apparently took exception. With a startled look, he said” “Obviously, you don’t know my client.” And I thought, “Oh, oh. Now I’ve done it.” Then, with a broad smile, the lawyer said, “I know my client and he is no better than a 2, so get this case settled!”
Markus has been settling cases for the past six years, in which time he’s become of the most prominent neutrals in San Diego.
He now runs Markus Mediation, a four-mediator alternative dispute resolution firm based in San Diego, and splits his time among San Diego, Orange and Los Angeles counties.
A 1980 graduate of the University of Oregon School of Law, Markus spent most of his career as a litigation associate and partner at a mid-sized San Diego law firm before resigning in early 1992 to become a full-time mediator.
“I was becoming disillusioned with the manner in which disputes were resolved and said, “This approach doesn’t make a whole lot of sense.”
“I went cold turkey – stopped being a lawyer and started being a mediator. Instinctively, I thought I could do it.”
When he left the firm, he hooked up with Bates Edwards Group, a San Francisco-based mediation firm headed by John Bates and Bruce Edwards, two current executives with JAMS/Endispute who merged their practice with the ADR giant a few years ago.
Markus had never conducted a mediation when he embarked on his second career. His only experience in the field was as an attorney and through training courses from the American Arbitration Association and the San Diego Mediation Center.
At the beginning of his venture, Markus sat in on some of Edwards’ mediations, asking questions in the hall during breaks and in the car after the session. Within two months, he became the San Diego Director of Professional Services for Bates Edwards.
But the title held no guarantees of success, and Markus was forced to build his new practice on his own.
“It was a victory just to get a mediation,” Markus said.
In his first year, Markus made $17,000 that increased to $60,000 the following year that was still far less than he made practicing law. The lean times were short-lived however. Markus, who now charges $300 per hour, is now successful enough that he has to turn away business.
In mid-1994, Markus and the ADR industry got caught in a mini-merger boom. Bates Edwards merged with Boston-based Endispute, which less than a year later merged with Irvine-based JAMS to form the nation’s largest for-profit ADR provider, JAMS/Endispute.
Markus gradually realized his employer wasn’t as service-oriented as he felt it should be. So, in 1996, he resigned from JAMS to open his own practice in an effort to build what he calls “the Nordstrom of mediation.” In October 1997, he incorporated and added three panelists.
“JAMS was the HMO of ADR and I wanted a company that was more service oriented,” he said.
Markus said he places a high premium on customer service. “If somebody calls here and they want to know our dates of availability, I want them to get a response within four hours,” he said.
Attorneys who have appeared before him like the results, including Claudette Wilson, a name partner at San Diego’s Mazzarella, Dunwoody, Wilson & Petty, who has used Markus more than a half dozen times.
“He has the ability to convince both sides that they have problems with their case, “ said Wilson, an employment defense attorney.
An important part of a successful mediation, Markus says, is talking to the parties about the intangibles of the litigation process, namely, time, emotion and cost. “Many litigants don’t realize the problems attend to waging a full-blow lawsuit.”
One Los Angeles plaintiff’s employment attorney who uses Markus extensively was hooked after Markus settled a difficult products liability case. “I never thought in my wildest dreams that it would settle,”
“He does two things for you,” the attorney said. “He’ll give you a personal evaluation of the case and will also let you know what your settlement opportunities are if they exist.”
Markus estimates 75 percent of mediations settle in front of him or immediately thereafter. In addition, he said, 10 to 15 percent of the others settle as a result of the groundwork laid during the proceedings.
Mediating cases that involve unwilling participants is not as enjoyable.
“I am not a fan of court-ordered mediation,” he said. “I want to work with people who want to be there.”
Markus does not believe all cases are ripe for early mediation. “Often, there must be some baseline discovery. You get 80 percent of the information through 20 percent of the discovery.”
He handles a wide variety of cases, including employment, personal injury, insurance, malpractice and real property matters.
“My job is to help settle the case until somebody says to me, ‘Thank you, but this needs to get tried,’” Markus said.
“I tell people it’s OK if you leave here today with your case not settled as long as you’ve been fully educated on the merits and intangibles, and knowing all those things you say, ‘We think litigation is a better path for us.’”
According to Wilson, Markus doesn’t end the mediation when the parties walk out the door.
“He is very good at following up,” she said. “He will pursue a settlement after the fact and see if he can work on specific things.”
Or, as Markus put it, “I don’t quit – you have to fire me.”
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