Profiles in Advocacy: Henry Cox

Henry Cox, J.D.

What are your hobbies?

Skiing, backpacking, home construction, and construction in general.  It depends on the season and my availability.  In past years I have done both Habitat for Humanity and Christmas in October, when I can.  I help others with all sorts of projects.  I work on my own house, my lake cabin, and another lake cabin I helped to build.   A lot of my weekends are spent on construction projects.

I also write songs and play the guitar.  It is more of a hobby, because I am not a musician, which would make things easier.  I have had some interesting close calls with success with music though.  I write songs for all sorts of things.  I perform with acoustic guitar.

What are you passionate about?

One of my biggest passions is my legal practice.  I focus on people trying to manage conflict better, more efficiently.  I resolve disputes.

50% of my practice is arbitration and mediation.

What has been your most interesting case/project?

Some of my most intellectually exciting, challenging cases have been plaintiffs contingency work.  My practice now is defense.

Many of my most interesting projects are my mediations and arbitrations, which are mostly confidential.  So, it is hard to provide more specifics on those.

Some of my most interesting mediations are those where attorneys think they will not find a settlement when one is right in front of them.  For me, the distinguishing factor is bringing in an experienced mediator.  While many attorneys select mediators based on his or her specialized area of law, the mediation process is not about the mediator’s experience.  It is about bringing in the type of mediation experience that recognizes a settlement opportunity.

Too many mediators believe that their role is to evaluate the case, often for one side or the other.

What life experiences have made you a better mediator/arbiter?

One of the motivating things about being a mediator for me is that in my 30 years of practice, I have seen many different parties, which helps me to look at litigation outcomes, rather than how the conflict can be resolved.  Trial attorneys are hired to prep the case for trial.  It is motivating to have the opportunity to work with those attorneys and clients to find an avenue of settlement, without having to purely focus on some unpredictable litigation outcome.

30 years of experience provides me with an edge.  Inexperience makes it difficult for a new attorney, who may not know a lot about conflict resolution, to mediate well.  But my experience is rapped up in civil litigation.

How did you pick mediation?

That is a very long story.  Early on I got involved with labor and employment law.  I was a labor attorney for TWA, was later hired by Wendy Thompson to help get a labor practice going, then the courts started looking at mandates for alternative dispute resolution, looking for people who knew about this stuff.  So I got to be on various court committees dealing with alternative dispute resolution.  Many of the judges at the state and federal levels were not in favor of mediation and dispute resolution alternatives at that time.  Most of the bar really did not understand it.  Then the legislative and court rule requirements came in for trained mediators, and the courts wanted to know who could train others for mediation.  This was 1994.  As a result, I was certified in all of the different courts as a mediator and helped to train others for mediation.

So, you could say you were involved in mediation before mediation became popular?

I have been doing it longer than most.  Also, I enjoy and engage in the academic study of it that a lot of mediators do not enjoy or study.

About half of my mediations are not employment related, so I have been able to branch out largely in areas outside of my original practice areas.

What type of dispute do you mediate most often?

I mediate in many different areas of the law, but two separate attorneys I worked with have used the term “black hole cases” to describe the types of mediations I often receive.  I often receive cases, “black holes,” that have been through mediation once or twice before.  For whatever reason the parties are so embedded in the emotions of the case, through the law or business issues, or the personal issues, that they get sucked into this black hole where they cannot resolve the conflict.  The parties know that the dispute should be resolved but they do not know how to resolve it.  I often times mediate these cases because I know how to find the settlement that many others have not been able to mediate.

How does your practice facilitate referrals?

My audience is really attorneys.  Some attorneys definitely appreciate that I have been a part of the litigation world and those conflicts, representing both plaintiffs and defendants.  Attorneys want to bias the process as much as possible.  So, many do not want someone they think is objective in the process.  Many think, “I do not want to deal with him because he will beat me.”  With some irony, there are more defense attorneys that are less willing to use me than plaintiffs attorneys even though most of my work is defense.  It is a sign of my objectivity.

One of the biggest compliments throughout the process is when my former opposing counsel ends up calling and using me as a mediator in a different case on which he or she is working.

Another way is by continuing to provide training and CLE programs.  99% of mediation is word of mouth.  The way I always hope to cultivate more mediation work is when attorneys are kicking around names for mediators, I hope to be on the tip of their tongues.  What is it about this guy that makes you want to choose him?  That is when reputation comes in.

A trial itself is a settlement, so the question is not whether the case is going to get settled, it is how it is going to get settled in the most effective manner that satisfies the interests of both parties.

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Henry Cox has enjoyed over 30 years as a trial lawyer, representing both plaintiffs and defendants in complex civil litigation.

In 1992 Henry became one of the originators of many of the ADR and mediation practices and rules courts and attorneys see today.  Henry sat on several state and federal court committees and began the first 40-hour mediation training program in Kansas.  He has provided over 1,200 hours of mediation training to hundreds of judges, attorneys and other professionals in over eight states.  Many of the active mediators attorneys use today, were students of Henry.

While Henry continues to actively practice in the area of civil rights and labor/employment law, over 70% of his mediations and arbitrations deal with complex business, commercial, construction, financial industry, IP, securities, personal injury and institutional abuse litigation, (in addition to civil rights and employment).  Henry is one of only 23 attorneys selected to the “Best of the Bar,” KC Business Journal, for 10 consecutive years.  He serves on the panel of neutrals for the state and federal courts in Kansas and Missouri, and panels for AAA, FINRA, NAF, and KS-PERB.

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