Prepare for mediation as if it were trial.

As Geoff Sharp put it, New Jersey lawyer Donald Vanarelli “gets it.”  He understands that

since the great majority of cases are resolved before trial during mediation or in settlement negotiations while fewer and fewer cases are tried, attorneys should prepare for mediation with the same seriousness and discipline they display in preparing for trial.

I see the results of unprepared advocates far too often.  They mumble, babble, ramble and stutter through an opening statement that presents a weak case to the other side. They are “shocked” to learn facts of which they weren’t aware (typically because they hadn’t yet learned the file).  They spend precious time on “damage control” with their client because the client wasn’t prepared to put money on the table or accept less than the brass ring the attorney told them they were entitled to.

Mr. Vanarelli condenses some great advice from many sources into an effective checklist that any advocate preparing for mediation should read.

Oh, and don’t forget Nancy Hudgins’ fantastic resource, either.

You Think That Jury Will Do Right by You? Think Again.

In the case the upcoming article in the Journal of Empirical Legal Studies did not convince you that you are usually better off negotiating a resolution of your dispute (whether with the help of a mediator or not), legal blog Swordplay lists 10 Acts of Lunacy by Jurors that might make you think twice about turning your case over to those twelve people in the box.

I will admit that as a bit of an idealist (and someone who never “lost”* a trial), I thought that once they took the oath juries tended to pay attention and in the end, did the right thing, but some of these examples take the cake.

*A bit of clarification may be necessary here.  I was clearly not Gerry Spence or Perry Mason.  When I was practicing, and defending insured persons (mainly motorists) from personal injury claims, a trail was commonly considered a “win” if the jury awarded the plaintiff damages that were less than the last amount you offered to settle.  Using this measure, I never truly lost a case, even though juries ruled against my client.

The Importance of Choosing a Professional Mediator

During my Monday sessions at a local Magistrates (read:Small Claims) Court, I must often stop the proceedings to explain to the pro se litigants that I am not a judge.  This despite the fact that this is set forth in the guidelines each party must read and sign, and the fact that I say this very explicitly in my opening.  I take this with a grain of salt as most people are unfamiliar with the legal process, save for what they see on various legal themed TV shows.

I would never expect to have this issue with attorneys. But, that was the experience of mediator Jeff Kichavin. In his wonderful commentary Professional Mediator: A Distinction that Makes A Difference, Jeff relates an experience at an ABA function where a high level in-house counsel was asked what qualities he looked for in a mediator repeatedly stated that he looked for a “judge that” has this quality or that skill.

In response to this apparent misconception that former judges uniformly make excellent mediators, Jeff explains “the benefits of using true professional mediators as opposed to people who merely used to work as judges.”  (N.B. I think that former judges can make excellent mediators, if properly re-trained to think and act like one, not like a jurist.)

Jeff makes the point that

To your typical former judge, the ability to “value” the case is the alpha and the omega of his service. Dialogue between the parties is a charade. The Los Angeles Daily Journal’s April 17, 2006, profile of a distinguished former state court judge presents the standard approach: “I try to get all the movement I can before I jump in and say how much I feel the case is worth.”

This man was an excellent judge. But his approach is not exactly the apotheosis of mediation technique. That’s because the lawyers already know everything that these judges can tell them.

Now, I know what some of you are thinking.  I hear it all the time: “I don’t want an errand boy/girl.  I want someone who can help get the case settled.”  A good mediator, a skilled mediator, does just that.  As Jeff states,

Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

A former judge, who acts and thinks like a judge, doesn’t help the parties make an informed decision, he tells them what he thinks that decision should be.   Speaking from experience, a client who takes a settlement based primarily on the valuation of the case by a third party will not be a happy client.  But a client who works through the issues, processes the information, assesses risks and benefits and comes to their own conclusion, will be.

Again, judges can be good mediators,  but you shouldn’t let that be the primary consideration the next time you choose a mediator.

A hat tip to Diane Levin.

“Winning at Mediation” – Nancy Hudgins’ Excellent Resource for Advocates

Fellow blogger and mediator Nancy Hudgins has compiled her excellent blog series on preparing for mediation into a fantastic monograph called “Winning” at Mediation: A Blueprint for Success.   It’s a well organized primer for any attorney (or the lay person mediating pro se).

Inside she includes excellent advice, such as her pre-mediation checklist and my favorite chapter – Show, Don’t Tell.  Visual aids are underutilized in trial situations and mediations.   Nothing has more impact on someone you are trying to persuade than a blown up picture of the accident scene, an example of the sheet metal that the million dollar machine you just bought is improperly fabricating, or a pile of junk food that a diabetic suing for medical malpractice had ordered while, uhm, a guest of the state.

In Further Praise of the Joint Session.

Last week, Geoff Sharp admitted to sitting on a draft post which modestly suggests that “lazy mediators don’t do joint sessions” or “lazy mediators only meet in private”. It appears that the gist of his post is that anyone can be an errand boy, but it takes a special kind of mediator to force the parties to sit across a table, look each other in the eye, and *gasp* communicate. He also commented upon an article (forwarded separately to us both by mutual friend/mediator/blogger Stephanie West Allen) entitled “Moving Mediation Back Toward its Historic Roots – Suggested Changes” by veteran mediator Joseph P. McMahon. Both Geoff and Mr. McMahon argue that the current state of mediation favors a “settlement conference” style of mediation that isolates the parties and minimizes real communication between the two.

Coincidentally, I have also been thinking a lot about the use of joint session since reading an article by New Hampshireite Scott Flegal entitled Advocating for Understanding. Mr. Flegal’s article discusses the “understanding based” model of mediation, which argues for the total elimination of caucus session. Flegal argues that the understanding based model promotes dialogue and joint decision making skills, while reducing distrust, both of the opposing party and the mediator – who is often viewed with distrust when he or she spends significant time with the other party, or is perceived as being unfair when playing devil’s advocate (reality testing).

Like Geoff, I think articles like these, which have appeared in Bar Journals, should spur interesting dialogue. Mediators should spend more time considering the dynamics of the conflict in front of them and decide whether to encourage the parties to hash it out in a joint session. Caucus is a useful tool, but only one of many at our disposal. [As an aside, I really dislike the "toolbox" metaphor almost as much as I dislike Biz school lingo like "incentivize" Why must we be made to appear to be plumbers or carpenters? It sounds as if we can reach into our "bag of tricks" and when the Phillips head screw driver doesn't work, we can use the needle nose pliers.]

I had a case this past Monday that likely would not have settled had I not brought the parties back together for one last joint session. The plaintiff had expressed frustration with the brief caucus sessions and had asked me to ask the defendant numerous questions. Even though the initial joint session was somewhat charged, I thought it best to get them back at one table. That’s when the real movement occurred.

I think too many mediators fear bringing the parties back to the same table unless there is some common ground already established through caucus and so-called “shuttle diplomacy.”

Mindfulness, MediTation and Mediation

Stephanie West Allen of idealawg emailed me about an interesting blog post entitled, Mindfulness Meditation: For Lawyers? In the post, lawyer/psychologist Delaney Dean discusses a bar presentation in Kansas City called “Mindfulness in Mediation.” (I had no idea that the term “mindfulness” was part of Buddhist philosophy. According to the internets, it means “being aware of your present moment.” I like that concept.)

As one might expect, Dr. Dean found that most of the lawyer-participants were skeptical of the use of mediTation and the concept of mindfulness in their practices. It should not surprise many of you to know that I am not a mystical or spiritual person. But, I share Dr. Dean’s surprise at lawyers who think of mediTation as “a sort of fuzzy, or “touchy-feely”, way to avoid reality.”

When I was in what they used to call the Gifted and Talented program in grammar school, we had a teacher who taught us relaxation and biofeedback techniques. I don’t know what the “proper” terms are, but they involve breathing techniques and visualization – you are on a cloud, a Caribbean beach, etc. I guess that as an 8 year old, I didn’t ascribe anything “touchy-feely” to it. It was simply a way to clear your mind. Focus your thoughts. “Center” yourself.

These methods have served me well over the years. I’ve never hit Nirvana (I really never thought Kurt Cobain was all that talented anyway), but these methods have helped me relax, focus and reduce stress. When I was practicing law, 15-20 minutes of reflexive breathing, maybe followed by 15 minutes of “resting my eyes” (my dad’s euphemism for his afternoon nap) was a fantastic way to decompress from a long day.

Positive Attitude in Mediation

Nancy Hudgins has an excellent post for mediation advocates on her Civil Negotiation and Mediation blog entitled “Adjust Your Attitude: Go Positive!”

Nancy writes

Mediation calls upon us to use a different skill set. One that is more collegial, cooperative and collaborative. Best to leave the attack dog persona at home.

I couldn’t agree more.  In my experience, the cases that settle have parties that adopt a reasonable, objective and cooperative approach.  They realize that mediation is not adversarial and that acting like a bulldog/shark/warrior is counterproductive.

I recently entered a mediation where the plaintiff had the defendant dead to rights.  An iron clad promissory note, a clear default over a period of months and no affirmative defenses other than falling on hard times.  But the plaintiff and their lawyer realized that you can’t get blood from a stone.  They worked with the defendant to renegotiate terms that all could live with.  The plaintiff has to wait a bit longer to get his money but he felt it better than sending his lawyer to the courthouse to file post-judgment motions and seek garnishments and liens which might turn up nothing.

What It Takes To Be A Great Mediation Lawyer – from Geoff Sharp

Geoff Sharp recently made an interesting observation about an excellent series of posts from Tennessee lawyer John Day called What it takes to be a great trial lawyer. (It’s lots of great info, so I’ll overlook the fact that John has two “Part 10’s”).

Geoff posits that the same qualities that make a great trial lawyer make a great mediation lawyer, as well.  I agree that the lawyers who are most successful in mediation exhibit several of these qualities/skills, including (as Geoff also notes): The ability to pull the trigger; the courage to tell the client the truth; and the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation.

An Ethical Dilemma?

I had a mediation today that concerned home repairs and renovations. While I was trying to establish rapport, I revealed to one party in caucus that my garage door opener motor had recently gone kaput and I needed to replace it. The party immediately offered, “I know a great guy who does installations, you should give him a call.” For a split second, I thought about saying, “Sure, give me his number.” I thought better of that and politely declined.

On further reflection, would this have been so terrible? Would it have been so unethical to accept his expert recommendation? I could see how it might appear that I was violating my role as neutral by forging an apparent business relationship with that party. When the roles have been reversed and parties have asked if I could refer them to competent counsel, I’ve explained that I could not.

The part of me who does not want to spend 7 hours in the garage cursing at instructions translated from the original Chinese by a computer program sees it much differently.
UPDATE: It seems my words were prophetic!  It actually took me 7 hours to install the new garage door opener.  Good thing I had a cancellation and an entire day to get it done.

Great Series on Mediation Preparation for the Advocate

Bay Area Mediator Nancy Hudgins has an excellent series for the mediation advocate on how to properly prepare for mediation. She takes the approach that since “more than 98% of cases do NOT go to trial,” the mediation advocate should set aside meaningful time to mediation preparation. Even though I am no longer actively practicing, I’m looking forward to her upcoming posts on the subject.