Prepared by Dr. Lynn W. Phillips, former award-winning faculty at Stanford Graduate School of Business and on-staff expert in Client Experience Engineering, Berkeley Research Group (BRG).

In my Introduction and Part 1 of this post, I described the strategic architecture of an exemplar firm in legal services, Phillips Alternative Dispute Resolution Enterprises, or PADRE, outlining the Client Value Proposition and Designed Value Delivery System that made it one of the leading U.S. providers of ADR services for settling complex, high-stakes legal disputes (below). It was founded in 2014 by former U.S. Attorney and U.S. District Judge Layn Phillips, one of the nation’s top mediators and my identical twin.

Of course, many ADR providers would say that they take some if not all these actions. But it is in how PADRE executes each that makes it a client experience leader in complex, high-stakes cases. Each of the 12 Actions has its own differentiation story. For example, in advance prep, PADRE issues a set of hard-hitting, written, highly tailored merits-based questions to each constituency of a dispute, given privately and separately to these specific stakeholders for their review, consideration and discussion.

As the inset above and comments by former clients in Part 1 show, PADRE possesses deep mediation and arbitration expertise and well-established processes that have been proven to lead to high-value outcomes for clients, backed up by a distinctive roster of neutrals who can mediate the growth in cases coming down the pike which span myriad industry sectors. Few ADR firms can match PADRE’s track record of success, strong brand equity, and deep client relationships in the market niche it occupies.

PADRE’s proven consistency in settling complex cases that often carry significant bet-the-firm type risks for stakeholders in accelerated time frames is the most severe test of an ADR firm’s capabilities and its neutrals—and one increasingly in demand. Court delays, rising costs and growing caseloads are driving companies and their legal counsel to seek options for faster, more reliable dispute resolution vs. the traditional route of litigation, making ADR a preferred pathway and hot space for growth in legal services.

Purpose: Tackling other Challenges in Customer Experience Architecture for Legal Services Firms.

As a leader in Client Experience, PADRE is well-positioned to capitalize upon these trends. Part 2 addresses another challenge in the customer experience architecture of an ADR provider beyond choosing where and how to compete and designing a reliable execution engine that can consistently outperform rivals in delivering the outcomes clients value. It is a challenge confronted by professional services firms operating in people-centric sectors where exceptional talent is an engine of value creation.

That challenge concerns how to communicate the unique client value propositions for the different skilled professionals that comprise the firm’s distinguished panel of neutrals, each of whom brings a unique background, set of experiences and capabilities. In the interviews I conducted with PADRE’s panelists that provided content for this series of posts, more than one asked, “Isn’t the value proposition for the panel’s individual members different than that for PADRE overall and Judge Phillips’ practice?”

The answer is “yes.” But the value proposition lineup for individual panelists isn’t disconnected from the value proposition of the firm, as Part 1 made clear. To be a leader in client experience in ADR, the value proposition of the firm and its individual neutrals—must be synergistic in how they are provided and communicated. Part 2 gives vivid examples from PADRE for how this is achieved while showing this is a theme often not made explicit in the profiles and messaging for neutrals on the panels of ADR firms.

Setting the Stage: A Day-in-the-Life of Clients picking Neutrals for Complex, High-stakes Disputes.

Here is one typical “day-in-the-life” vignette of the way decision making about mediators and arbitrators happens that illustrates this challenge. Let’s say that a lawyer involved in a complex, high-stakes dispute comes back from a status conference where the presiding Judge has said, “I’m ordering you to go into mediation” or alternatively, “I’m strongly suggesting that you mediate this case before we have our next status conference. If the parties can agree on a mediator, fine. If not, then tell me, and I’ll appoint one.”

So, the lawyer then goes back to the office and sends an email to the firm’s partners that says, “The judge has encouraged us to mediate this dispute. In simple terms, here is what the dispute is about. Do you have any thoughts on who might be an appropriate or effective mediator for this kind of case?” The attorney then get replies from maybe 8 people and 20 names, with substantial overlap in those who are nominated. Thus begins a search of bios, websites and media to learn about these potential candidates.

That scenario captures the marketing challenge for what amounts to thousands of potential neutrals, and especially for those just starting a career as a mediator and arbitrator. Everyone is getting the same lists, everyone likes the same people, and everyone is trying to retain and engage the same candidates.

It’s why scheduling is a major problem and frustration in appointing mediators and arbitrators. It’s also why neutrals need a value proposition that breaks through that logjam, one expressed in 2 or 3 sentences.

Value Propositions for many ADR firms and Neutrals are Vague and Hard for Clients to Discern.

Many ADR service providers can be described as aggregators, positioning themselves as a one-stop shop for any dispute in any practice area regardless of case size, specialization, complexity, budget or dispute resolution forum (on-line or in-person). Their strategic architecture for value creation prioritizes growth in the number of cases handled by expanding their presence geographically or technologically through mergers, acquisitions, and collaborative partnerships forged by licensing, JVs or other means.

Many of these ADR firms’ deal-making has spurred their success in growing the volume of cases and revenues for their private equity owners, other investors, or their Boards in the case of not-for-profits. Not surprisingly, many of these players also have large numbers of mediators and arbitrators listed as neutrals on their websites, with their panels numbering in the hundreds and in some cases thousands. Their bios describe who they are, their education, practice areas, what they’ve done, billing rates, etc. 1

These descriptions will sometimes include a neutral’s approach to mediation in high-level terms such as being “party-centric,” as well as descriptors of their style or personality as a neutral, such as being “flexible,” “practical,” “engaged,” “persistent,” “patient,” “creative,” and so on, along with mentions of their skills such as being skilled in, say, “high-conflict, emotionally charged situations,” and with their profiles sometimes supplemented by descriptions of their families, lifestyle interests, even their pets.

But publishing neutral’s bios like these on an ADR firm’s website doesn’t address client stakeholders’ concerns as to what client experiences they can expect to get by hiring one of the candidates. These bios are typically silent on what events will likely happen in the lives of the key stakeholders involved in a dispute by choosing this person (and firm) as their neutral, with what consequences of value to them, worth how much—all above compared to the client’s alternatives and supported by proof points.

Although the client value proposition for individual neutrals can often be expressed in 2 to 3 sentences as shown below—thus refuting the idea that it can’t be articulated in a bio sketch—it doesn’t need to be communicated in a neutral’s bio brief as long as it’s conveyed in other forums like interviews, social media blogs, press articles and LinkedIn profiles, etc. If this isn’t done, clients will—uninformed by the ADR provider—try to infer answers to the experiential questions above on their own, often incorrectly.

Or they’ll revert to neutrals they’ve’ used in the past. This is similar to other sectors where customers sourcing solutions are inundated with the features and capabilities of vying alternatives hoping to win their preference, yet are left wondering what experiences they would get by choosing one vendor over others; the value they and their stakeholders would derive by their decision; or the credible reasons they can marshal why they will likely get that experience better from their chosen provider vs. others.

To be sure, it’s very easy to get lost in reading over the amazing accomplishments listed in the bios of PADRE’s panelists who number among them former General Counsels of major global corporations and accounting firms; the U.S. Navy; the National Basketball Association; ex-Managing Partners of prestigious law firms; a Principal Deputy White House Counsel and a Senior United Nations Conflict Mediator; plus a lineup of former Judges with stellar records as trial lawyers before joining the bench.

But in looking through the bios of PADRE’s different neutrals on its website, it becomes apparent that their accomplishments are linked to the firm’s singular niche focus on resolving complex, high-stakes disputes across the neutral’s chosen practice areas. Increasingly, these bios—much like Layn’s—are being supplemented by interviews, blogs, social media articles or LinkedIn profiles that clearly explain their value proposition as a neutral along with its compelling proof points. Here are some examples:

Bill Ohlemeyer, a PADRE neutral mentioned in the Introduction and Part 1 of this series of posts has a lengthy set of career highlights that include being a trial lawyer for plaintiffs and defendants on some of the most complex, controversial and hotly disputed cases of the past four decades while serving at prestigious law firms and acting as Head of Litigation at a Fortune 5 company. He takes the burden off stakeholders by succinctly expressing the unique client experience that comprises his value proposition:

“The value proposition and client experience I bring as a Phillips ADR mediator is an extremely elevated level of shared experience with all the parties to a dispute across a wide range of sectors and matters. That, along with an acute understanding of the ‘landmines’ inherent in the cases of both plaintiffs and defendants, and the ability to wield that shared experience and understanding of their embedded landmines in a way that puts parties on a path to resolution, is the foundation of my value proposition.”

He explains: “When I participate in a mediation for Phillips ADR, I can fairly and honestly say that I’ve been in everybody’s seat who is sitting around the mediation table. I’ve been in the defense lawyer’s seat, the plaintiff lawyer’s seat, the plaintiff client’s seat, the defendant’s client’s seat. And I have done so in exceptionally complicated cases that included incredibly significant consequences to everyone involved. I have an extremely elevated level of shared experience with all of the parties to a dispute.”

“That puts me in a particularly advantageous position to help everyone involved find a solution they can own and know that the solution is a good outcome for their respective clients. I can see a range of acceptable or appropriate outcomes that others without that perspective may not see which can help resolve a dispute. Once I said in a mediation, ‘I’ve seen this movie before, all the way from the very start to the very end because I’ve directed it before, I’ve acted in it before, and I’ve written it before.’”

“That elevated level of shared perspective that I have with everyone in a room enables me to help all the parties understand what the ‘landmines’ are in their case and their likely impact if they were to go to trial, advancing the case for resolution. By landmines, I mean that, for each side, what are the facts that if they are believed to be true by a judge or a jury would be fatal to their case? This is key since most trial lawyers are extremely focused on the ‘good’ stuff, not the serious ‘bad stuff’ in their cases.”

Others offer a Shared Experience Value Proposition with Special Expertise and Sector Insight.

Like Bill, Sean Coffey brings a unique set of perspectives to PADRE’s clients, having served as 24th General Counsel of the Navy and prior to that as a nationally renowned plaintiff and defense trial lawyer and the Chair of Complex Litigation at a major defense law firm. In these roles, Sean handled complex disputes like prosecuting the WorldCom Securities Litigation and defending Goldman Sachs’ trader Fabrice “Fabulous Fab” Toure in one of the few financial crisis cases that the SEC ever took to trial.

Given these parallels in their career journeys, it isn’t surprising that there is an overlap in the value proposition Bill and Sean want to project in the minds of target clients. By appointing either of them as their neutral, stakeholders representing all sides of a complex, high-stakes dispute—law firm trial and settlement counsel and heads of litigation, corporate defendants and GCs, presiding judges, etc.—will experience higher odds of expedited settlement that will satisfy their constituencies due to:

• Increased confidence these neutrals understand and can represent the perspectives of all parties in a dispute because they have been in each of their roles and can do so with no plaintiff or defense bias.
• Increased ability to identify creative pathways to resolution that transcend what clients can imagine based on these neutrals’ cross-sector expertise and grasp of all party’s needs and likely strategies.

But while Bill and Sean share some areas of legal expertise like in securities and product liability, Sean has deep domain expertise that is different from that of other PADRE neutrals in the area of Commercial Litigation Finance and Aerospace & Defense, both of which are potential hot spaces of future growth in ADR. For example, Sean founded a firm in the fast growing litigation funding space and his intimacy with that market can be of value to parties involved in a dispute being financed by a third-party funder.

In his interview, Sean also notes that lawsuits in the Aerospace & Defense sector that skew to complex, high-stakes cases are poised to increase as reliance on commercial technologies becomes ever more prominent. This is being driven by a need to keep pace with China and other nations in advanced communications, AI-based software, cyber, space-based platforms like commercial satellite imagery, high volume unmanned systems such as drones and ‘intelligent ship’ technologies to drive cost savings.

These advances are being developed by companies outside the traditional defense industrial base in Silicon Valley and in other innovation hubs as the U.S. integrates lessons learned from recent conflicts in Ukraine and the Middle East. This trend is likely to fuel a future wave of new litigation. Sean is uniquely positioned to capitalize on this trend, given his background as a Naval Officer and General Counsel of the Navy, relationships within the defense community, and his top secret national security credentials.

Questions Neutrals must Answer in Choosing a Unique Client Experience to Project to Clients.

A crucial issue any neutral must address in choosing the client experience they want to project to stakeholders to win business is how they define their target market of opportunities. Consider PADRE panelist Ann Cook, who we introduced in prior posts and was formerly General Counsel at Ernst & Young (EY), among other highlights. Her primary focus is in financial services disputes, especially in IP and corporate value, trade secrets and big M & A deals and IT system integration projects gone bad.

Like Sean, the experience Ann delivers in these cases has elements of value that align with key trends:

“My career enables me to bring comprehensive hard-to-match sector and domain expertise to clients involved in financial service disputes where complex accounting issues take center stage. Accounting issues are so frequently the target of lawsuits because regulators are scrutinizing them in ways we’ve not seen before. Even where the accounting firm is not named, they are often key witnesses to the accounting and auditing work, and one side seeks to leverage them as either a sword or a shield.”

“I can support both plaintiff and defendant bars in understanding and predicting their perspectives. Counsel for these cases often needs a mediator who can explain complex accounting issues to their clients. Or the dispute may be a matter that carries substantial risk and exposure for a corporation where the GC needs a mediator who understands their situation and can provide advice to sidestep pitfalls. My background and deep experience in financial services matters map into those scenarios.”

And it does so in ways that perhaps few other mediators or arbitrators can match. “My time as GC at EY was unprecedented. Clients won’t find many others who have dealt with the volume of cases that I’ve dealt with in financial services and the insights in settling disputes that comes from that volume of work. I understand the corporate dynamic, internal pressures, PR exposure impact, and how to manage the various constituencies, which can include boards, investors, partners and the public.”

The Protégé Value Proposition for Clients Needing to Reach Resolution on Expedited Schedules.

Sometimes whoever is appointed a neutral is a function of expedience as well as the experience they can deliver and their track record. One scenario is where it’s important that an ADR firm can meet the goals of parties needing to hold mediations and reach settlement on an expedited schedule. So, if say, Layn’s schedule is unavailable for 90 days, parties confronted with this scenario may want to consider other options and here another category of mediator value propositions comes into play—the protégé.

The legal world has long been a stage for mentors who worked closely with younger attorneys and helped them master the art of legal discourse to become famous in their own right. Examples abound— Ruth Bader Ginsburg and her clerks, Fritz Kraemer as mentor to Henry Kissinger, etc. Niki Mendoza, a PADRE veteran introduced in prior posts who settled hundreds of cases with Layn and on her own is a Layn-protégé, a value proposition that aligns with meeting client’s needs facing an expedited schedule.

“I don’t try to distinguish myself from or try to make a name and reputation for myself as a mediator distinct from Layn. I’m a devoted follower of his process, so much so that sometimes in settlement discussions I can credibly share with the parties what I’d expect Layn to say in response. Clients in these scenarios where time is of the essence praise me for my executional excellence, my proactive responsiveness, my capability to quicky shift direction as needed, and accelerate time to resolution.”

Another scenario where the “Layn protégé” value proposition applies is the wave of emerging disputes in which diversity issues are front and center. The firm has long recognized the value of mediator diversity as a best practice in dispute resolution, and especially in cases where diversity issues prevail. 2

Beyond those mentioned already, Caroline Cheng, Jay C. Gandhi, Andra Greene and Michelle Yoshida help form the nucleus of a powerful lineup of neutrals at PADRE with expertise in these cases.

Once again, each of these panelists has their own areas of specialization in legal and sector expertise and proof points distinct from others in several respects. There are a host of other protégés who are too numerous to mention here, including more new ones now in-the-making, but panelists Clay Cogman, Greg Danilow, Gary Feess, and David Murphy, have also worked with Layn for many years and in turn mastered his process within their own chosen areas of legal expertise and industry focus.

Tradeoffs in a Neutral’s Value Proposition are Actionable, not Accidents that Go Unmentioned.

All value propositions have tradeoffs. Southwest Airlines used to ask passengers to trade off assigned seats to save travel time and cost. Volvo owners historically traded off some stylishness for safety. That precept applies to ADR firms and members of their neutral panels. Best practice requires acknowledging tradeoffs in a value proposition vs. treating them as unfortunate accidents, correcting any that are misperceived, and taking steps to ensure that a value proposition’s benefits aren’t offset by its tradeoffs.

For example, Sean Coffey said: “Layn noted that in the mediations we’ve done, everyone still thinks of me as a plaintiff’s lawyer. I get it. I spent 11 years on the plaintiff’s side of the aisle and was known for taking the WorldCom case to trial where I was dubbed by the media as ‘Wall Street’s New Nemesis’.” But Sean also spent 16+ years at firms defending corporate clients. “So, the idea that I’m a plaintiff’s lawyer who may bring a plaintiffs-only perspective to the disputes that I mediate is a misperception.”

In turn, Sean is taking steps to correct this misperception through his participation in conferences, hosted client events, a revised LinkedIn profile and other measures. As another example, consider Seth Aronson, who joined PADRE’s panel of neutrals in 2023 after 40+ years as a trial and appellate defense counsel, and was consistently ranked by many publications as one of the best attorneys in securities litigation, having actually “written the book” on best practices in defending corporate clients.

His track record in trying and winning big securities cases is highly distinctive, having even argued and won a U.S. Supreme Court victory in a landmark securities class action. Seth’s value proposition centers around his hard-to-match domain and cross-sector expertise as a mediator who understands securities and derivative litigation, the myriad pitfalls that can accompany these types of disputes and who can provide counsel to parties that helps to manage the complicated dynamics often surrounding these cases.

This is highly valued by corporate counsel, but they are only one of the stakeholder groups that gets a vote in nominating mediators; others include plaintiff counsel and the insurance carriers who cover the costs of defending corporate clients against securities class actions. For them, Seth’s accomplishments and accolades as a member of the defendant’s bar is a two-edged sword. In turn, Seth must address the tradeoffs these stakeholders might have in hiring him, bolstered by strategies to overcome them.

In his interview, Seth noted how he has worked hard to get insurers to value his ability to assess their perspectives objectively without a defense counsel bias, while developing relationships with plaintiff lawyers in professional forums. “While my career was spent mainly as defense counsel, over the years I’ve developed a reservoir of goodwill with the plaintiff’s bar as President of the Board of the Association of Business Trial Lawyers, the Legal Aid Foundation of Los Angeles and Chancery Club of Los Angeles.”

Both Seth and Sean illustrate the precept that neutrals need to think long and hard about the potential tradeoffs in the value proposition that they are projecting to client stakeholders in their chosen areas of expertise, and take action to mitigate any tradeoffs, whether perceived or real, that can serve as barriers to them being selected as a mediator or arbitrator. That then concludes this series of posts on Phillips ADR Enterprises (PADRE), a Client Experience leader in legal services. I hope that you enjoyed it!

Dr. Lynn W. Phillips • Client Experience Engineering Expert at the Berkeley Research Group (BRG)

1 A summary of the Research and Resources reviewed in writing this series of posts can be downloaded from my LinkedIn Featured Section.
2 See: Greene, A. and Gregg, T. (July 24, 2024). What the Inclusion of Women in Peace Negotiations Can Teach Us About the Value of  Diversity in Commercial Mediation