Does "The Apprentice" Teach A New Mediation Model?

Sunday, August 1, 2004 - 01:00

There can be no dispute that Donald Trump's "The Apprentice" is a huge reality show success. That success breeds media attention, and there has been a flurry of articles - with different answers - on whether "The Apprentice" offers lessons for business school students or, more generally, for the business community. With so much attention, it is ripe to ask: Does "The Apprentice" offer any lessons for alternative dispute resolution? Would parties accept or request an "Apprentice-style" mediation?

"The Apprentice" was presented as the "ultimate job interview." Sixteen candidates were selected to compete for a single position as an apprentice to New York real estate mogul Donald Trump - to run one of his Trump Organization businesses at a $250,000 annual salary. The candidates were divided into teams, and each week the teams were assigned a different task, such as trying to lease a Trump penthouse for a corporate event for the highest amount. The consequences for coming in second were dire: A member of the losing team was sent packing each week by the now famous Trump words, "You're fired."

The process of deciding who would be fired holds the most interest for ADR practitioners. The losing team's project manager for the particular task, joined by two team members selected by the manager, had to face Trump in the "boardroom," where Trump and two of his senior executives attempted to apportion blame for the loss. The boardroom segment was marked by a series of staccato questions, as Trump confronted each candidate with specific issues and then had each candidate react to what the others were saying. There was a flavor of law school Socratic method in the questioning, yet the segment was paced quickly to allow a resolution within the broadcast time.

The final episode followed this general format, but there were only two candidates participating in more extensive questioning and commenting about himself and the other candidate. There were questions like, "Who would be the best fit for this organization?" "Why do you think you should win?"

By coincidence, I was preparing to be a neutral at a mediation when I took a break to watch the first season's final episode of "The Apprentice" on April 15. [The show is prospecting for new candidates now and will return for a second season this fall. See www.nbc.com/The_Apprentice.] With the case file in front of me, and the questioning building to the ultimate conclusion, I was struck that "The Apprentice" might offer a type of technique for less complex mediations.

Parties often comment that, in a full-day mediation, there are many slow parts and too much downtime. Some feel that only the final hour is truly productive. Could "The Apprentice" suggest a way to get to that final hour sooner? I thought it was worth a try.

Classic Copyright Case

The mediation I conducted was a copyright case of a classic variety: an alleged infringement of a fabric design for use in women's clothing. The complaint included not only a copyright claim, but also a trademark claim and various common law claims. The pre-mediation submissions indicated that the potential litigation costs would be high in relation to the dispute amount, and the parties had each expressed a desire to settle before incurring those costs.

I began by confirming that the parties' attorneys had participated in mediations before, and I confirmed that I could dispense with the usual introductory formalities and get to the essence of the dispute. I then collapsed the stages of gathering information, developing options, narrowing options and closure.

First, I asked the plaintiff's counsel to briefly state the facts. I then asked the defendant's attorney to respond, and the plaintiff's lawyer to reply. Because the facts were relatively simple - the plaintiff sent a design to the defendant but the defendant elected not to contract with the plaintiff to manufacture the garments - this step was completed in a manner of minutes. I asked the plaintiff's counsel to state the basis for the first claim. I asked the defendant's counsel to respond and the plaintiff's counsel to reply. We moved briskly through all the claims, as I worked to establish a cadence that elicited crisper responses-- like The Donald testing "Apprentice" candidates about a task. I followed a similar approach for each measure of damages. All elements of the case were framed in less than half an hour.

In caucus, I told the plaintiff to try to see if we could come quickly to closure. I asked the plaintiff's attorney pointed questions about the claims and the measure of damages - until the attorney and the plaintiff's president felt comfortable putting a demand number on the table. I took the number to the defendant and asked the defendant to provide its best settlement number to avoid multiple rounds of caucuses. By then, the case had a definite tempo. I presented the defense number, explaining that I sensed very little room for movement. The plaintiff decided that the number was close enough to accept and to avoid prolonged discussions. Total elapsed time: 45 minutes. With no commercials.

This approach to mediation departs from many established practices and would not be right for most cases. For example, where emotions are running high, time to vent is essential. Where the facts or legal principles are complex, a more studied exchange is needed. And, where the stakes are high and the spread between the parties is large, hard work in caucuses cannot be avoided.

But there might be a role for "Apprentice-style" mediation in ADR practitioners' armamentarium. For the technique to work, the parties, or at least their counsel, should be experienced in mediation; the parties must be willing to abbreviate the proceeding; the case must not be complex; the stakes cannot be very high; and the mediator must be adequately prepared by pleadings and pre-mediation statements to move at a good clip with an activist style. It is an approach to consider. It might lead to settlement and - who knows? - might even lead to a mediation reality television show.

Michael S. Oberman is a Partner with Kramer Levin Naftalis & Frankel LLP. Mr. Oberman's practice concentrates on complex commercial and intellectual property litigation. He serves as an arbitrator on the Commercial and International Panels of the American Arbitration Association and on the CPR Panels of Distinguished Neutrals. © 2004 CPR Institute for Dispute Resolution. Reprinted with permission from the June 2004 issue of Alternatives, a monthly newsletter published by the CPR Institute, a nonprofit initiative of general counsel of major corporations, leading law firms and prominent legal academics whose mission is to install alternative dispute resolution into the mainstream of legal practice. This material is used by permission of John Wiley &Sons, Inc.

Please e-mail the author at moberman@kramerlevin.com with questions about this article.