Forging A New Path: My Journey & The Manifestation of ADR

Tue, Apr 5th, 2022 | by Miles Mediation and Arbitration | Article | Social Share

by John Miles

During my childhood, my father had built a successful company making high-end patio furniture which was sold to resorts and individuals alike. Like all companies, they occasionally got sued. When it did happen, however, I remember my father getting irate at silly mistakes people would make, such as a person who would try to stand on one of their chairs to fix a lightbulb and then fall—not using the product as it was designed to be used. They would then proceed to sue his company. At the time, they had outside counsel from a firm in Minneapolis since they had insurance and a high self-insured retention. After my father’s company would pay this firm out of pocket, he would say, “Fight this thing! We make a high-quality product, it’s not our fault that this knucklehead abused it! It’s the principle that matters.” Months would go by, and I would ask my dad what happened to the lawsuit. He would respond that they settled for a lower price, as litigation was time-consuming and expensive. Plus, he needed to get back to what he does best—making quality furniture. I often wondered that, if when these lawsuits came in, there could be a person who could understand my father’s frustration at being sued and explain that litigation wasn’t the only option. This person could tell my father that he could sit down with his lawyer, the plaintiff with their lawyer, and that both sides would have an equal opportunity to express everything they felt and thought about the situation. That this process could be a fraction of the cost of a lawsuit, would take a much lower investment on all fronts, and could be solved in weeks instead of months. Thus began my unwitting journey into the world of ADR.

After I graduated law school, I took a job with an insurance defense firm in 1988. The year after, the industry began to transform. When I started practicing law, one could get a case filed and tried within a year. During my time with the firm, this evolved. A new concept was on the horizon—Alternative Dispute Resolution. After leaving the company, I moved to Madison, Georgia. This was not only for geographic reasons; I was frustrated that there weren’t alternative means of solving the issues I had seen. What would become my ADR practice came about from my experience in litigation—specifically, within personal injury. I wanted to take the knowledge I gained from law and translate it in a way to make a living for my family. During this time, I  was also doing a little bit of construction work toward the end of my career with the firm and would often go to Henning Mediation to mediate many of these cases. These would go on all day (and there were many parties.) It dawned on me, that this is what I had been searching for. It included many of the aspects of law which I liked, such as working with my colleagues, other attorneys, and interacting with people. This collaborative social environment allowed me to thrive within my domain of expertise. While I wasn’t sure if I would be successful in ADR, a colleague at the practice told me something I will never forget. He remarked, “It takes a certain kind of personality to do well. You have to be the type of person that can look somebody in the eye and tell them they’re crazy as hell, and then the next minute get up and get them a cup of coffee.” This immediately led me to challenge myself—my knowledge, my intuition, and inherent understanding of dispute resolution. I ended up leaving the firm, started doing court-ordered mediations in the western judicial circuit, found some success doing this, and then formed my own mediation company with my good friend Jimmy Rice. We founded Miles-Rice Mediation in September of 2001—a truly remarkable milestone in my life.

When this whole thing started, it was kind of a throwaway. If you could proceed with mediation, and it worked out, great. However, the notion of trying a case was not something that was onerous. The rates were fairly reasonable and the amount of litigation was lower, so there wasn’t really a need for a cost-effective alternative. Now, at this point in time, the population in Georgia was growing exponentially—especially in Atlanta. As litigation increased and courts couldn’t handle this influx, cases went on longer and the question arose of whether there was another way to handle these case besides litigation. When I started Miles in 2001, it was primarily based on the notion that insurance companies were looking for alternatives. These firms went from a model of “we will refer these cases when they’re filed to big firms so they can handle it” to “we will go to in-house counsel”—meaning certain employees would operate as such within the insurance company’s legal department. These individuals would receive a salary, and in exchange, only have to handle a certain quantity of cases. While these attorneys might make a little less, they wouldn’t be as busy. Quickly, these attorneys still got overwhelmed. Mediation, still gradually gaining traction in the background, would become the next iteration within this evolutionary journey and step to address this need for an alternative. It would resolve the question, “How do we take care of or resolve the number of claims that have been filed from people who have been injured in slip-and-falls or automobile accidents, and so forth?” The notion of taking a case to trial, where a plaintiff pays a percentage of the recovery received by jury, verdict or settlement and the defense pays an attorney by the hour (overall very expensive) paled in comparison to the much lower-priced mediation process and higher success rate of over 65%.

See, there’s an inherent reason why mediation just…works. Most disagreements in life will involve you sitting down with the other person and civilly talking things out by explaining how you feel, and then letting the other side have a chance to speak. This doesn’t necessarily mean the issue will be resolved, but it’s how we are conditioned to resolve disputes and deal with conflict. The civil justice system formalizes this in a way that often renders even a good recovery stale. The process can be very off-putting and hurtful. Particularly for the plaintiff, this is an intensely personal issue, often occurring through no fault of the person’s own. In litigation, there is a judge, jury, proceedings, and rules which make up the judicial system. This great machine forbids you from looking the other person who caused the issue in the eye and telling them what you think—and then hearing from them. You don’t have control over the outcome. Some people might say, “Oh, that’s not true, I’ve had a lawsuit and my lawyer talked with me the whole time, and I was able to guide it.” This might be true. But in my experience as a litigator, if you really ask deeper questions to others who have endured this process, you would find that the litigation tends to take on a life of its own. You would also realize that the rules of civil procedure allow the defense to send questions to you, dig into your medical and financial history, and probe deeper, further into your personal life. This can become a very invasive and intensely harrowing process. After all, you’re no longer living in your world as you knew it. You’re in the domain of courts, judges, and random strangers who could dictate your future. Communication in this world is extremely stiff and strained, contrary to what television might portray. This may take the form of your lawyer advising you on every move, telling you when to speak and what to say. What you say could come back and bite you, not to mention that there is a court reporter taking everything down. Why are they recording everything? Where will that go, and who will read it? The entire framework is unnatural—this is not how people are conditioned to handle disputes. This is where mediation steps in to save the day. ADR can provide the satisfaction which would otherwise be lost in the void of litigation. It is not uncommon at Miles to see people at the end of mediations hugging, shaking hands, and smiling at each other. They’re still injured and the harmful events still happened, but this chapter of litigation is over—and they got to control the outcome. They weren’t losing their voice to a panel of random people or a judge who would dictate what they were going to have to live with.

Although there’s not really much existing data as of yet for mediation and arbitration due to the lack of public filings, there are still ways to draw parallels. While litigation has grown a great deal, particularly in Georgia, so has ADR. When I had my team leader retreat in 2015, the best estimate for the year prior was that $15 billion had been spent by insurance companies and corporations on litigation, and only $15 million was spent on mediation. Since then, this number has probably gone up ten-fold. When I entered the mediation sphere, according to the Georgia Office of Dispute Resolution, there were under 1,000 registered neutrals. Last year, there were over 3,000 registered neutrals. In the midst of this great expansion, the person who I credit most for the rise of ADR in Georgia would be Ed Henning, who founded Henning Mediation. He was a true pioneer and visionary, and actually also came from an insurance/defense background. Oftentimes, he would talk about how mediation was something that really started in the 60’s in California. So when he launched his own Georgia practice, it was like acupuncture—still a very new, if not strange, concept. This was all the way back in 1997! As it evolved, however, mediation would move very quickly. Within this explosive progress, the Miles we love and know today was born.

While this may seem like a joke, when I would try cases as a litigator, I would honestly enjoy the win for about as long as it took me to get back to the office and start addressing the pile-high stack of papers from court. It is just so much more fulfilling to help people find common ground and make peace than it is to help people who are battling for an outcome that all parties will inevitably be at some level, dissatisfied with. As such, this drastic change of mindset for many practicing attorneys helped shift the industry as a whole towards consolidation. This, in turn, directly tied in to the popularity of ADR. When Jimmy and I founded Miles, it was just us two. Gradually, we added other members, and currently, we are proud to host a panel of over 60 neutrals. Initially, the industry was largely individuals. They were lawyers who had left their practice in favor of a career that could make them a successful living while being much less stressful and much more rewarding. As the tides turned, these new neutrals would begin to come together to form entities built upon the legacy of ADR. I firmly believe that the future of ADR will see much more overall infrastructure to handle many more cases, efficiently. Litigators, the aggrieved, and other parties will be able to come and get a number of cases done on any given day at any given time, and someone will be available to help you. An individual practicing on their own truly can’t handle this level of work. Our industry is moving towards the idea that ADR is the goal, and litigation is an offering. I envision ADR firms honing in on brands and styles that people are comfortable with and know they can rely on for the unified experience that they expect.

At Miles, we have taken these philosophies to heart—and fortified our company with the three tenets of our comprehensive approach: neutrals, facilities, and our support staff. Our support staff is one of the best in the industry, and it is so purely by design. Our neutrals charge the highest rates in the region and therefore earn the most compared to other neutrals. Though we are priced to address the upper end of the market, our team prides itself in being able to handle ADR cases across a multitude of industries. This segues into one of the aspects I’m most proud of about Miles, which is the heavy investment we put into the panel’s marketing, neutral development, and training. What you will see on our LinkedIn or at bar events now are attorneys who specialize in certain departments of ADR. This phenomenon didn’t exist five to ten years ago. Before, you were either a litigation or trial lawyer. It’s virtually unheard of to have lawyers who advertise themselves as litigators who represent clients in ADR. This speaks to the level of attention we give to the most important asset in our company—our people. I’m glad to say our team at Miles has flourished and continues to thrive in paving a way forward…towards a brighter future for us all.

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