Introduction to the Interview
Welcome to this exclusive interview with Patrick McPhillamy, a seasoned expert in the realm of Alternative Dispute Resolution (ADR). With a career that has spanned decades and crossed continents, Patrick has a wealth of experience and insights to share. From his early days as a litigator to his current role as a mediator and arbitrator, his journey is a testament to the transformative power of ADR in the legal landscape.
In this candid conversation, Patrick delves into various facets of his career, discussing the motivations that led him from the courtroom to the mediation table. He shares real-life case studies that have shaped his approach to dispute resolution, offering a rare glimpse into the intricacies of his work.
You'll also hear about Patrick's educational journey at Cambridge, how it opened doors for him internationally, and influenced his focus on international law and human rights. He talks about the qualities that make a good mediator, the importance of case selection, and even gives us a sneak peek into the future of ADR, including the rise of Online Dispute Resolution (ODR).
Whether you're a law student, a legal practitioner, or simply someone interested in the evolving world of dispute resolution, this interview promises a comprehensive look into the life and philosophy of a man who has dedicated himself to resolving conflicts and fostering peace.
So, sit back and dive into this enlightening dialogue that takes you from the intricacies of challenging cases to the broader horizons of what the future holds for ADR.
(written transcript below)
Chloe:
I will start by asking you, what was your motive to pursue a career in ADR?
Patrick:
Well, I started as a litigator and a trial lawyer back in the 90s, or late 80s. I graduated from Cambridge in 1984, and I lived and worked in London for a year. And then I moved to Italy, where I opened a business and legal consulting office. I worked there for about five years before returning to the States in late 1989. And at that time, I started with litigation and trial work. And during my litigation practice, in most cases, the court ordered mediation and arbitration. So I became very familiar with the mechanics of ADR at an early stage in my career and as a litigator, one of the things that struck me was the amount of time and the amount of resources that were required to get a case to trial to have a dispute adjudicated.
And it seemed to me that it was a very cumbrous way to get from one from A to Z, whereas in mediation you could resolve a case in perhaps one or two sessions. So, it was quite evident that mediation offered the same outcome, but with much less resources and effort and stress on the part of the litigants. So that was kind of the emphasis to pursue mediation and other forms of ADR.
Chloe:
Okay, so during your years of practice, is there a particular case you have worked on that you would describe as challenging or a case that stands out from others you've worked on?
Patrick:
I was thinking about that question. I think they're all good and they all stand out in some way. I think perhaps one of the cases that kind of came to mind was a case in the court. And I had a couple of students from Pepperdine University, their law school, who were training with me, and we had a couple of very difficult litigants, and they started off the mediation session using coarse language and their whole attitude and demeanor was, I think, disrespectful to everyone there, to the process, to the court. So I knew that would be a difficult mediation, but I wanted to try something a little new, a little bit different, and also something that I thought would be beneficial to the students.
So I worked through the mediation, worked through the difficult personality, set some parameters early on, and was able to resolve it. And so I found that case to be very meaningful because it was sort of a case where I gave the parties a lot of latitude and sort of employing the principle of self-determination. At the very end, the students asked me, well, what was your strategy? And I said? It was to bend but not to break, to try to give the litigants as much room as necessary, and to try to create space to allow for a settlement. And so towards the end of the mediation, it looked like it wasn't going to go through. We weren't going to resolve. And so one of the parties walked away.
And so we waited, and I said, I have a feeling this is a strategy. Eventually, they returned, and the case was settled. And then at the end, when they walked away, they felt like they had gotten the better of the other side, and they used some coarse language. We all had a good laugh afterwards, and I said, the moral of that story is evident. I said, but if you're patient enough and if you are professional enough you can resolve regardless of the personalities. So that case kind of stood out to me.
Chloe:
From the various practices in mediation, arbitration, or negotiation, how do you personally approach a given case, and how do you know which type you should be following?
Patrick:
So really, a lot of the cases just come to me as a mediator, as a negotiator arbitrator, or as a litigator. And then it's really up to me to decide whether or not to accept the case and just focus on mediation, some cases, you know, just will never settle. And the party is so entrenched in their position. There's positional bargaining. There's a lot of egos involved. The stakes are high. There's an unwillingness to give or take, to compromise. And so you kind of know that those are difficult cases. And so I think a lot of my success has been in carefully selecting and rejecting cases, because as a litigator, I learned that you could have a room full of cases, boxes, and boxes, and you never get any work done, and perhaps your win-loss ratio wouldn't be very impressive.
I think the key is careful case selection, getting to know the parties, and their issues early on, and then from there, deciding whether or not to accept the case. In court. I generally accept all the cases. Now and then I'll see a difficult litigate, but I'll usually accept the case because it's the nature of the work of being in court. But I almost know at the outset whether or not the case can be settled just because of the parties and just their demeanor and what's at stake.
But I think it's really important to understand what you're getting into and make sure that something that aligns with your interest, with your abilities, that you can bring value to the session, to the proceedings, and that you can help the parties in some way, if not to reach settlement or resolution, let's say in the first session, to plant the seeds for it. And it may not resolve in the second or third sessions. It may end up going to court. But a lot of the time you're able to influence or assist the parties in seeing another way, a third way, so to speak, the mediator's suggestion or way.
So I think careful case selection, understanding the parties, understanding their issues, spending time with the parties before the mediation, talking to them, encouraging them, trying to get to know more about their case, their company, what's going on, and then being prepared. Preparation is, I think, the key to any endeavor, particularly ADR and mediation negotiation, which is an integral part of mediation and a discipline in and of itself. So I think especially in that negotiation, that's a very important thing. Being prepared, having a plan, being flexible, realizing that what you may have thought would work in the beginning is completely inappropriate for the circumstances, and just being willing to work with the parties, not making it you, but realizing it's their case, it's their mediation and trying to bring value to the situation.
Chloe:
As you take on cases from different fields in law. Would you find that this diversity could be beneficial? Or do you think that usually for someone to start, they should be focusing on just one field and one specialization?
Patrick:
Well, I think a person has the ability and the luck to focus initially on one field. That's certainly an opportunity, and I think it's a good one. But in practice, I don't think that always happens. Just starting as a litigator, I went into general practice. Eventually, my interests and work devolved more towards commercial matters, business and commerce, international mediations, arbitrations, and IP work in particular. But I think from my litigation practice, knowing a lot of different fields benefited each different case that came in because I don't think any particular case is isolated in a vacuum. And I think factually that you can see a lot of different circumstances, and disciplines come to play just in one case. And I find that to be true in mediation.
So I think it also makes you a better mediator if you have an opportunity to mediate different kinds of cases, because take for example, commercial cases or real estate cases or unlawful detainer, you would think that there'd be less emotion involved in those cases. But there's a lot of emotion involved, and it goes just deeper than dollars and cents. And so then let's say you have the opportunity to mediate a civil harassment case where it's mostly motion 80, 90, maybe 95%. And so, to be able to deal with that and to bring some value to the party's needs and interests, I think helps you to be a better mediator, let's say in the commercial context or another context.
So, I think initially start and mediate as many kinds of cases as you can see what aligns with your interest, your abilities, and then if you have the opportunity, the good luck, the fortune to focus strictly on a particular area, yeah, that's certainly a good way to go.
Chloe:
In your opinion, what could make a good mediator or arbitrator?
Patrick:
I think somebody who loves doing it, first of all. And I think it helps to have some legal background or experience, although you don't have to have it. I see particularly in the arbitration field, there are specialists in, let's say, construction law or different kinds of law, and they haven't had any legal training or background or certification, and they're very good in their area of the law or in that area of mediation that involves, let's say, construction law. But I think if you can take a course in just general legal practices or legal principles, that's a big help to have an understanding of contract and tort because most commercial disputes arise out of some contract or a breach thereof. And so just having a basic understanding and facility with the terminology is very helpful.
And I found that to be useful in arbitration negotiation in all areas, really, of ADR. So I think some knowledge is helpful, although it's not essential, I think just understanding the structure, how to structure the mediation, to follow a structure, at least in the beginning, until you get some experience and can deviate from the structure. But even then, as an experienced mediator, I find it's useful to always kind of have the structure to come back to, and then you can move out from it and then come back to it, and then it'll kind of keep you grounded in a direction. I think empathy is certainly a very important quality to have. One thing a lot of people say when they work with me is that I'm very calm, and so that tends to help a situation rather than hinder it.
So, you want to spread light but not heat on the situation. You want to bring value, and that's kind of a determination depending on what the case is all about, what the parties are looking for, and just the willingness. Patience is certainly very important. The ability to deal with difficult personalities, to try to understand people, their needs, their situation, what their life has been like, try to walk in their shoes, I guess, a little bit, and then just kind of a willingness to want to try to work through the case and to help the parties resolve. And I think creativity. Ingenuity, in other words, you have some ideas too. There are a couple of schools of thought about mediation and mediation.
One is that you should be so neutral and almost so neutral to the point that you're not doing anything other than just saying, okay, he's offering you $10, and she rejected it. You become just sort of a messenger. So from my perspective, I feel like I want to be able to give them some ideas to think about, to give them a pathway to an end. So, for me, I want to do a little bit more than what is taught in some of the class
Those are kind of some of the qualities, I think are beneficial to be a good mediator.
Chloe:
You mentioned that you have graduated from Cambridge. So do you recall any courses that you have taken during your years at university that influenced your choice in ADR? Or do you think that overall, choosing this university has affected your career at some point?
Patrick:
Absolutely. First of all, I think it opened a lot of doors for me internationally that I wouldn't have been able to otherwise. In terms of courses, a lot of my focus was on international law. Some of it was business law, and some of it was public, private, and international law. I would say that just the whole atmosphere itself was founded in twelve, nine. There's a very strong religious, and spiritual influence on the university, and there's a community there that you become a part of that you never leave. And so you become a member of the university and a part of the community. And I think values are just they just are permanent. They permeate through the whole history of the university for over 800 years.
And I had the good fortune of being with several people who were very spiritual, some who were training to be priests, others who were involved in spiritual work, some who were involved in government, diplomacy, foreign offices of different countries. So I sort of had the seeds planted, whether I realized it or not. I think some of my coursework in human rights was a big motivator or probably impetus for my decision to just finally lead litigation and to immerse myself completely in ADR.
Chloe:
How do you see your career in ADR influencing or contributing to achieving your goals and your values?
Patrick:
Well, I think it aligns very well with them, and it allows me to meet people, get to know them, understand their problems, and be able to help them facilitate the conversations that are necessary to reach resolutions and peaceful resolutions. And so I kind of joke, I get this question quite often, and so one of my typical jokes is I went from troublemaker to peacemaker. As a litigator, there's less construction, and more destruction to make the peace, whereas with mediation, you come into the situation with a desire to achieve a peaceful resolution or an outcome. Yeah, I think it's very much a part of my whole life and what I believe and what sort of my path in life.
Chloe:
Do you think that there might be a kind of new specialization that can add value to the work in ADR?
Patrick:
Yes. So I had the really good fortune of being one of the co-editors on a book that MediateGuru put out, and it was, I guess, a compilation of authors, and that was essentially the topic, the Future of ADR. And it was something that we worked on for about five or six months as were coming out of the pandemic. I think one of the big takeaways from that book is that ODR online dispute resolution is a permanent part of the fabric, or the future of mediation, particularly just alternative dispute resolution. I think in a lot of my talks, and of course, you probably heard it quite a bit yourself, that the alternative is becoming the way slowly but surely. And I see that more and more as legislatures get behind mediation, particularly in India and the UK.
We've had a long history here in the United States. It's probably mediation, I guess, maybe had a beginning in the 1960s and has become firmly ensconced throughout the 50 states. It's very much supported by the courts, and then there's a thriving private practice as well.
Chloe:
So that was it. I'm thankful for your time and your willingness to have this conversation with me. enjoy the rest of your day and thank you so much.
Patrick:
Thank you so much. I enjoyed it immensely. I wish you all the best.
Chloe:
Thank you so much.
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