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today.

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Welcome to the audio edition of BHBA's Mediation Training.

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In this episode, your host, Matthew Lane of Lane ADR, will guide you through strategies

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for successful online mediation.

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Let's dive in.

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Hello, and welcome to Advanced Dispute Resolution, also known as strategies for successful online

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mediation.

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I'm exhilarated to be sharing this topic with you and spending time discussing how to maximize

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the ability to settle cases over Zoom, Teams, and other online means.

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Very briefly, who am I?

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I'm a full-time mediator and owner of Lane ADR.

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Prior to the pandemic, I was a full-time litigator, both as an assistant U.S. attorney in the Central

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District of California.

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Also I was an attorney who represented clients in both large and small law firms.

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In my capacity as an attorney, I had the good fortune of mediating hundreds of cases as

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an advocate, and as a mediator, I have now mediated hundreds of cases as a mediator.

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I look forward to discussing this topic with everyone, and let's just start with the big

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global idea of why are we here.

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We're here because online mediation is no longer the, quote-unquote, alternative.

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So obviously before the pandemic, most mediations were conducted in person.

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They were traditionally at one location.

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Everyone who participated would plan to travel there.

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At the very least, it would often require driving across town, driving in traffic, parking,

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figuring out where I need to be, how am I going to get lunch, what am I going to do

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to make sure I'm comfortable in the mediation.

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And obviously, depending on how many people were participating in the mediation, at times

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it could include extensive or expensive costs and time associated with mediation.

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And so obviously you see the asterisk there on the slide that mediation was developed and

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has been a means to more efficiently and more cost effectively resolve disputes.

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It still is more cost effective and more efficient than trial, the mitigation, and oftentimes

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in primarily arbitration as well.

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As the pandemic forced people to rethink things throughout the world, a very noticeable change

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in the legal community was the very quick pivot to mediating online.

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Personally I was in the midst of the pandemic in 2020 when I decided to open my own mediation

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practice and prior to that I mediated a handful of times as an advocate on Zoom, but it became

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clear to me that anyone opening a practice at that time needed to be very well versed

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in how to mediate online.

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And so as I've continued to grow my practice and continue to mediate since then, I have

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mediated in person and I still enjoy mediating in person from time to time, but the vast

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majority of my cases have been mediated online.

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And like many other mediators with whom I've spoken, the success rates continue to not

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be necessarily based on how the mediation is conducted, whether it's on Zoom or in person,

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but rather the cases that are right for settlement seem to be fine and able to settle online.

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And so as we step back from all this debate over in person or Zoom, I want to refocus the

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thought that I'm not here to advocate for Zoom replacing in person mediation, but rather

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to articulate some examples of how Zoom can encourage people to get their cases settled

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in a much more efficient and much more effective manner.

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And that's why we talk about this form of advanced dispute resolution, just like when

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mediation became the norm as a way to resolve disputes.

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Now online mediation has become the norm on how to mediate cases.

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And I oftentimes think about this change, this idea going from the panic of the early

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days of the pandemic when the courts shut down and people couldn't be in person, people

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couldn't be near each other and everyone was confused and concerned and rightfully so,

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worried about this state of everything.

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But I often think about the words of Albert Einstein, in the midst of every crisis lies

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great opportunity.

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Obviously, I can't foresee what would have happened to mediation if the pandemic had

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not occurred.

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But I would argue that as we look back now, years later, we see that the manner in which

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and the way that in which cases are mediated is far more advanced than it was prior to

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the pandemic.

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And so let's start first with the idea of some of the advantages of online mediation.

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And then I'll speak of the challenges and then from there we'll talk about a broad look

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at the mediation process from start to finish.

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And I'll discuss some of the nuances of online mediation that might be somewhat different

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than mediating in person.

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Also we'll talk about different strategies, different techniques that I have personally

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used and have found very helpful when mediating online.

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I recognize that a number of people watching this presentation possibly have mediated before,

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whether in person, online, many of whom are watching this might have only mediated as

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an advocate, sometimes maybe as a neutral, or possibly people watching our clients or

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participants in mediation who might be more interested.

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This presentation is designed to educate not only those who wish to become a neutral,

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but I think it'll also be helpful for advocates and participants of mediation to maybe rethink

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some of the things they're doing differently online versus in person and maybe also think

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about some strategies that would be helpful for future mediations.

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So we start with the idea that as mediation advanced into its online state, there are

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certain advantages.

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Here I listed a dozen advantages that I came up with, there are probably more.

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For example, one of the most common and obvious is that there is an ability now to participate

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from anywhere.

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Prior to the pandemic, it was not uncommon to have an attorney in Northern California

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on one side, an attorney in Southern California, mediator maybe in Orange County or San Diego,

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and insurance agent, representative coming from the East Coast, and maybe a client based

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in the Midwest.

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And in the old days, and I use that with quote unquote old days prior to the pandemic when

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in person mediations were the most prevalent, majority of the time people were expected

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to travel to the same location.

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And oftentimes there would be situations where before the mediation even begins, it's already

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difficult to get everyone in the same place at the same time.

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So obviously with Zoom, Teams, and other technologies like that, it's much easier.

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People can be anywhere in the world, as long as they have a connected device that's connected

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to the internet and they can participate in the mediation.

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Also it's the flexible scheduling and it makes sure the right people can attend.

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In the past, I remember many times as an advocate where they're mediating all day and then 334

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in the afternoon, it comes out that one of the other parties or one of the clients in

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the other room has a seven o'clock flight and that they have to get back to wherever

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they're going by then they have to leave and there's traffic.

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And so we have to get the case out of the next hour and a half or else we're done.

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We don't have that problem anymore.

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People can be there and say they're the whole time.

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This obviously saves time, saves money.

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And ironically, or not ironically necessarily, but interestingly it negates the conversation

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about having a quote unquote neutral location.

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The internet's a neutral place for anyone.

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It's an option for everyone and there's no debate over who's going to host mediation

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or will it be at a neutral location brought by the mediator.

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At times, and the hope is that the mediation can be more comfortable for everyone.

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People can join from the comfort of their home office or their office or possibly maybe

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their hotel room or if they're on vacation, they can join from wherever they have internet.

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It doesn't matter, but hopefully people are more comfortable.

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It allows for people, the mediator to use breakout rooms more strategically.

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When mediating in person, it's very difficult to go into a room and point three people and

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say, hey, you come with me.

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You two over there.

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One over here and facilitate conversations in that manner.

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It's possible.

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It's just difficult.

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But interestingly enough in Zoom, as the mediator who hosts the Zoom meeting, it's relatively

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effortless to move people to different rooms or to make sure that conversations are taking

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place with the right people in the right rooms.

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This also allows for joint sessions, especially in Southern California or in California in

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general where joint sessions are not always the norm.

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It does allow for the possibility to tailor a joint session to a specific goal.

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It gives the mediator the option as well, which is an interesting nuance, to mute everyone.

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If you want to have a joint session, you don't want anyone to start advocating for their

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client or causing any sort of potential for debate.

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You just tell her one at a time, we're going to be muted.

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I'm going to say a few words.

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I want to talk about this and that.

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We can then discuss this narrow issue.

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Again, that's much more difficult to do in person.

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Likewise, document sharing can become much easier online using the share screen function

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or whatever other necessary mean like email.

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Now you can share documents in real time.

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Right now I'm giving this presentation using the share screen and in my mediation practice,

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I quite often use the share screen only with an understanding that the documents I'm looking

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at and sharing are not confidential or there's no reason I can't share with that party or

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those people in that room.

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But also oftentimes the subtlety of sharing a document rather than explaining what's on

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it leads people to come to their own conclusions so you don't have to tell them that.

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I was fortunate enough to work with a tremendously successful prospective mediator in LA when

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I was first starting out and he was kind enough to let me shadow him.

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I loved the way in which he had this key document that had not been signed by the one party,

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but they were relying on a head, well, in their brief, they talked about this document

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or how important it was and it was the reason for the plaintiff's termination of her employment

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and it was such a crucial thing.

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Then you get through a stack of 300 pages of documents and nobody ever signed it.

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There was no way to authenticate the document.

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It could have been made the week before and rather than go into the room and show that

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client, that party, why they were wrong and why they were going to lose a trial, he let

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them talk about the document and slowly scrolled through the other documents until he got to

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that point and just left it there and paused and waited.

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I sat there just watching, like eating popcorn thinking about how great this was.

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And then as the attorney and the client slowly stopped their conversation, stopped their

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train of thought, they looked at it and said, oh, it's not signed.

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Huh.

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Give us a minute.

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We'll talk and we'll be right back with you.

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That's what they did.

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In the case gets settled shortly thereafter, right?

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These are the kinds of things that can be done now that were a little more difficult when

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we were in person.

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Finally on there, I wrote the mirror effect, what I call the mirror effect, it has different

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meanings, but what I like about the mirror effect is the fact that most people when they're

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on Zoom or Teams, they have the viewpoint of themselves, the camera of themselves, just

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like I do here.

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I can see myself talking.

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And when I see myself talking, it reminds me to at times focus on the words I'm saying

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a little more closely and kind of mirror to myself.

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You don't lie to yourself in the mirror.

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You're not going to say things you wouldn't say otherwise.

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Hopefully, if you're forced to look at yourself in the mirror.

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I recognize that nothing is perfect.

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And I'm not here to say that Zoom or Teams or anything else, save mediation or that this

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is the savior of the legal world.

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Rather, I hope people realize that Zoom, Teams and other device, other technologies are another

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means to progress mediation, but they are not without their own challenges.

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So some of the challenges that are commonly understood include the risk that people are

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going to be less engaged if they weren't forced to take a flight across the country or to

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spend thousands of dollars of travel or to deal with two hours of rush hour traffic.

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Or for that matter, they weren't forced to put shoes on, right?

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Maybe they're showing up in shorts and a t-shirt.

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Maybe there's a risk they aren't going to take it as seriously or they're not going

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to be as engaged.

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They're at their house or their office where there's a hundred other things going on and

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they're not fully there.

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Other things like distractions, dogs come in, kids come in, partners and attorneys come

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in and out.

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And there's always the risk of that.

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There's the risk of people phoning it in.

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They're just going to, yeah, of course, I'll participate because of the courts that I have

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to or because we have a cutoff date, but this case is crazy anyways.

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I'm just going to all show up and I'll be made available by phone, right?

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Or I'll be available on Zoom if you need me.

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There's a risk of that, right?

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But that being said, each of these risks, I like to think about how do I turn that challenge

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into an opportunity, right?

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So the fact that people might be likely to phone it in, I also recognize that means that

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in theory, people who are not available can become available if there becomes an authority

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issue later on.

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Well, great, let's get so-and-so on the phone.

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Send them to Zoom link.

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Here it is.

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Other times people worry about screen fatigue.

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That's a real thing.

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I get exhausted, full day of mediation going over eight hours sometimes, staring at a screen

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and I get exhausted.

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I know the participants get exhausted, but what do I do about that?

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I use that as an opportunity.

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I show up in their room and I said, man, we have been going at this for six hours today.

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I'm tired.

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My computer screen is tired.

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How are you doing?

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And the odds are they're tired too.

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And that might be the breakthrough you need to get a real conversation about how this

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case results.

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Other things, people are scared of technology.

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You deal with it.

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You get a Malink ahead of time.

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You tell the attorneys, hey, your client might be a little nervous about technology.

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If there's any way I can help, let me know.

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There's connection issues at times.

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I use it as an advantage as well.

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Hey, no matter what happens, your Wi-Fi cuts out.

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I'm here.

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I'm not going anywhere.

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You got me for the whole day, right?

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You don't worry about it because I'm here and I got great Wi-Fi.

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I get the best Wi-Fi that I can possibly get and it won't cut out just like I won't quit.

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The other thing is obviously less comfortable.

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There's a risk that people get less comfortable.

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There are either maybe, I mean a lot of employment cases and sometimes the plaintiff in the case

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might not live in the nicest house or they might have seven other people living with

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them or they might not have the best Wi-Fi connection or have nice clothes to wear that

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they want to wear.

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That's fine.

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I try to make them as comfortable as possible.

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But I also, if I think that's an issue, we'll discuss that with the attorney representing

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00:17:53,400 --> 00:17:56,560
them beforehand to make sure that they're comfortable.

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To make sure that they understand that this is not a judgment of them or where they live

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or where they're calling from.

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I also say you can use a Zoom background.

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I don't use a Zoom background myself because I want it to be more genuine.

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I want people to see where I am.

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It's nothing fancy.

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I intentionally put a few books on a bookshelf.

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I intentionally have a printer right here because at times the metaphor of getting the

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printer is something that makes sense in the case.

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I have a few pictures that I took, one in Machu Picchu before law school when I was

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called myself an adventurer for a few months and decided to go travel through Peru and

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volunteering and seeing the country.

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It gives me time when I'm looking at it in reverse to think about bigger picture items.

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I also have a picture of my, I took all my honeymoon Bora Bora, these beautiful over-the-water

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bungalows and how pristine the water was and how we are in the middle of the ocean

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with very little security and very little ability to see beyond the horizon and just

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the peace and quiet and the ability to remind the participants of mediation that there is

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more out there than what might be bothering them in this case.

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That being said, I also have a few books.

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I don't have every legal book that I have.

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I don't need to look like I'm in a library.

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Personally, I think too many things can distract, but I intentionally let people see my background,

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00:19:30,600 --> 00:19:34,840
but I also tell people if you're coming from somewhere you don't want to see the background,

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put a zoom picture of the Golden Gate Bridge up, put an ocean picture, put something really

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fun and we'll make a joke out of it and we'll move on.

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It's fine.

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00:19:44,520 --> 00:19:49,800
So now we'll spend some time talking through the various phases of mediation and I'll spend

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00:19:49,800 --> 00:19:56,000
extra attention to how there might be a slight nuance when mediating online as opposed to

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in person.

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And I'll start with the caveat of that mediation is an art.

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And so these five phases are what I understand to be the commonly known and the mediation

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in the United States.

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And these are the phases that are not necessarily obvious at times.

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And I would argue, and I think the best mediators would agree, the mediation is an art and these

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are all organic.

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And so we start with the idea of convening the mediation.

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This is the starting point.

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This might include a phone call or an email from an attorney or a client saying, hey,

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00:20:35,320 --> 00:20:38,080
we've got this issue, we have this case.

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00:20:38,080 --> 00:20:42,040
We want to see if we can talk about how we get it settled.

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It could include a call to my case manager, one of my case managers who says, hey, I have

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00:20:46,240 --> 00:20:49,840
this person who called me or this attorney who called me.

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00:20:49,840 --> 00:20:51,680
Can we can we mediate?

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Sometimes it's it's very straightforward and it just is how do you get everyone there

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00:20:56,800 --> 00:20:58,440
and then start the process?

296
00:20:58,440 --> 00:21:00,440
Other times it's more complicated.

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We'll talk about that specifically.

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00:21:01,680 --> 00:21:04,920
We'll also talk about openings.

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00:21:04,920 --> 00:21:08,040
When we start a mediation, how do we open?

300
00:21:08,040 --> 00:21:09,040
How do we start?

301
00:21:09,040 --> 00:21:10,840
What do we say?

302
00:21:10,840 --> 00:21:13,160
Then we'll focus on communicating.

303
00:21:13,160 --> 00:21:17,200
Every good mediation requires communication.

304
00:21:17,200 --> 00:21:18,840
And then we'll talk about negotiating.

305
00:21:18,840 --> 00:21:21,680
And again, these are not hard and fast things.

306
00:21:21,680 --> 00:21:26,280
I will never say in a mediation, okay, we have finished the communicating phase.

307
00:21:26,280 --> 00:21:27,480
Let's negotiate now.

308
00:21:27,480 --> 00:21:28,480
No, that's awkward.

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00:21:28,480 --> 00:21:29,480
It's uncomfortable.

310
00:21:29,480 --> 00:21:31,400
It's unnecessary.

311
00:21:31,400 --> 00:21:37,200
But at some point, there might be a conversation about money and there might be a conversation

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00:21:37,200 --> 00:21:41,280
about how do we get this resolved and what is it going to take?

313
00:21:41,280 --> 00:21:45,520
And at some point, someone might say to me, listen, we're just ready to talk about the

314
00:21:45,520 --> 00:21:46,520
numbers.

315
00:21:46,520 --> 00:21:49,320
We don't want to talk about the faxing or the law.

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00:21:49,320 --> 00:21:52,440
We just want to get to the bottom of the numbers.

317
00:21:52,440 --> 00:21:57,560
And then somewhere through that process, there will be the closing.

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00:21:57,560 --> 00:22:03,440
And the closing oftentimes is the most important of the mediation process, assuming that everything

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00:22:03,440 --> 00:22:05,800
else was done correctly.

320
00:22:05,800 --> 00:22:12,360
Then the closing is where the case resolves and you make sure you have a durable and forcible

321
00:22:12,360 --> 00:22:16,040
agreement that everyone is on board with.

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00:22:16,040 --> 00:22:21,280
And so what we'll do is we'll talk about each of these phases in turn with a specific focus

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00:22:21,280 --> 00:22:27,520
on how it might be different in the online mediation context.

324
00:22:27,520 --> 00:22:28,520
First, convening.

325
00:22:28,520 --> 00:22:33,920
Again, in layman's terms, this is getting everyone to the bargaining table.

326
00:22:33,920 --> 00:22:39,880
Just like if you're going to buy a used car, you don't just, you have to get there.

327
00:22:39,880 --> 00:22:43,080
You have to show up and you have to start the process.

328
00:22:43,080 --> 00:22:49,080
So when convening a mediation, we talk about, well, first, who will participate?

329
00:22:49,080 --> 00:22:51,400
When will the mediation be?

330
00:22:51,400 --> 00:22:52,400
Where will it be?

331
00:22:52,400 --> 00:22:53,400
Will it be online?

332
00:22:53,400 --> 00:22:55,240
Will it be in person?

333
00:22:55,240 --> 00:22:56,560
And who needs to be there?

334
00:22:56,560 --> 00:23:01,480
Do you have case deadlines that are affecting how we schedule the mediation?

335
00:23:01,480 --> 00:23:08,360
I'm fortunate enough to have excellent case managers who do a lot of this background work

336
00:23:08,360 --> 00:23:11,360
without even thinking of it on a regular basis.

337
00:23:11,360 --> 00:23:16,320
They get contacted by attorneys or other staff and they'll have the answers ahead of time.

338
00:23:16,320 --> 00:23:17,320
They know my schedule.

339
00:23:17,320 --> 00:23:22,440
They know what's going on and they know with whom I've worked usually and we can talk about

340
00:23:22,440 --> 00:23:25,440
is there a conflict or can we mediate this case?

341
00:23:25,440 --> 00:23:30,200
So what I will do usually is checking with the attorneys and confirm the case deadlines

342
00:23:30,200 --> 00:23:32,200
are going to be okay with this date.

343
00:23:32,200 --> 00:23:33,680
There's no additional discovery needed.

344
00:23:33,680 --> 00:23:35,640
If we're pre-litigation, okay, that's great.

345
00:23:35,640 --> 00:23:37,800
Are you going to share documents ahead of time?

346
00:23:37,800 --> 00:23:44,520
Is there any information you would need or your client would need before the mediation

347
00:23:44,520 --> 00:23:46,320
takes place?

348
00:23:46,320 --> 00:23:50,680
Is there any information you want the other side to know before the mediation takes place?

349
00:23:50,680 --> 00:23:58,160
In the pre-litiation context that oftentimes is no, but at times it might be really important.

350
00:23:58,160 --> 00:24:03,280
The goal of convening the mediation is a few different things, one of which is to ensure

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00:24:03,280 --> 00:24:08,840
confidence in both me as the mediator, but also the process of mediation.

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00:24:08,840 --> 00:24:14,360
So I look at mediation generally here and this is both in person or online.

353
00:24:14,360 --> 00:24:21,280
We have to make sure that everyone is aware of that process and is willing to participate

354
00:24:21,280 --> 00:24:25,840
in that process and has that confidence in the media and the process.

355
00:24:25,840 --> 00:24:30,280
At that time, if the mediation will take place online, then I'll ask, does everyone have

356
00:24:30,280 --> 00:24:32,280
familiarity with online mediation?

357
00:24:32,280 --> 00:24:36,040
If you have clients who have never mediated online, what are they nervous about?

358
00:24:36,040 --> 00:24:38,000
What are they concerned about?

359
00:24:38,000 --> 00:24:40,120
How are they at using a computer?

360
00:24:40,120 --> 00:24:41,600
Do they have any questions?

361
00:24:41,600 --> 00:24:43,440
What can I help with?

362
00:24:43,440 --> 00:24:45,560
Are there any special issues?

363
00:24:45,560 --> 00:24:50,080
For example, does the plaintiff in the case have three kids who are going to be there

364
00:24:50,080 --> 00:24:52,040
in and out of the room the whole time?

365
00:24:52,040 --> 00:24:56,960
Do they need, are they a newborn mother who has to be nursing in between sessions and

366
00:24:56,960 --> 00:24:57,960
the mediation?

367
00:24:57,960 --> 00:25:02,920
Whatever it happens to be, I like to know that in the convening stage before we even

368
00:25:02,920 --> 00:25:06,280
get there so I can make sure everyone's taken care of.

369
00:25:06,280 --> 00:25:13,480
And if there's any reluctance, whether to mediate at all or to mediate online, I try

370
00:25:13,480 --> 00:25:15,560
to address those head on.

371
00:25:15,560 --> 00:25:18,720
I try to make sure that everyone knows we're there for the right reasons with the same

372
00:25:18,720 --> 00:25:22,760
goals of getting the case out.

373
00:25:22,760 --> 00:25:28,520
In the convening stage as a mediator, and so this goes equally for those who want to

374
00:25:28,520 --> 00:25:33,560
be a mediator, who are mediators or who are either advocates or clients or participants

375
00:25:33,560 --> 00:25:34,560
in mediation.

376
00:25:34,560 --> 00:25:39,520
I often think back to Ben Franklin who said, by failing to prepare, you are preparing to

377
00:25:39,520 --> 00:25:40,520
fail.

378
00:25:40,520 --> 00:25:46,400
I love that quote because to me, the choice is yours to make.

379
00:25:46,400 --> 00:25:48,920
And if you don't make a choice, you have made that choice.

380
00:25:48,920 --> 00:25:49,920
Right?

381
00:25:49,920 --> 00:25:51,720
And it's the same thing in mediation.

382
00:25:51,720 --> 00:25:54,160
We are here to get the case settled.

383
00:25:54,160 --> 00:25:57,440
And if the case is not settled and you are saying you don't want to settle it for whatever

384
00:25:57,440 --> 00:25:59,080
reason, then that's a choice, right?

385
00:25:59,080 --> 00:26:06,640
To do nothing is still a choice and to not prepare for mediation is preparing to fail.

386
00:26:06,640 --> 00:26:10,520
In my practice, I spend significant time preparing for mediation.

387
00:26:10,520 --> 00:26:17,280
It's not only focused on the law and the facts, but also the people, those who are involved.

388
00:26:17,280 --> 00:26:22,840
I understand who's going to be there, what their goals might be, what they might approach

389
00:26:22,840 --> 00:26:26,280
a certain set of facts or issues with.

390
00:26:26,280 --> 00:26:28,440
So preparations is huge.

391
00:26:28,440 --> 00:26:33,600
And when I talk about preparation, I talk about as a mediator, does everyone have mediation

392
00:26:33,600 --> 00:26:34,600
statements?

393
00:26:34,600 --> 00:26:35,600
Have they submitted them on time?

394
00:26:35,600 --> 00:26:38,000
Have they submitted key evidence?

395
00:26:38,000 --> 00:26:41,080
I read them front and back multiple times.

396
00:26:41,080 --> 00:26:46,360
I read them with the idea that I also think about not only what's in the mediation statement,

397
00:26:46,360 --> 00:26:48,640
but also what's not there.

398
00:26:48,640 --> 00:26:50,480
What have they not said?

399
00:26:50,480 --> 00:26:56,000
I think about the relationships of those who are involved in the dispute and employment

400
00:26:56,000 --> 00:27:01,880
context, obviously, former employees versus current employees.

401
00:27:01,880 --> 00:27:05,720
Those are different relationships at times.

402
00:27:05,720 --> 00:27:10,720
I also hold pre-mediation calls and almost all my mediations.

403
00:27:10,720 --> 00:27:11,720
And I make them informal.

404
00:27:11,720 --> 00:27:14,840
I invite the attorneys separately to talk to me.

405
00:27:14,840 --> 00:27:20,240
And in the 10 to 15 minute phone call, I will oftentimes learn so much that we'll set the

406
00:27:20,240 --> 00:27:27,520
mediation in the correct trajectory before we even get started.

407
00:27:27,520 --> 00:27:30,880
Oftentimes it's questions about things like the relationships between the attorneys or

408
00:27:30,880 --> 00:27:32,920
the parties or whatever it happens to be.

409
00:27:32,920 --> 00:27:35,040
What concerns does everyone have?

410
00:27:35,040 --> 00:27:38,640
What are we thinking about in terms of the goals here?

411
00:27:38,640 --> 00:27:44,000
I also, obviously, I know the legal authority like the back of my hand, but if there's any

412
00:27:44,000 --> 00:27:47,560
certain unique thing, I might double check that.

413
00:27:47,560 --> 00:27:49,840
And then I also want to know the history of the dispute.

414
00:27:49,840 --> 00:27:52,280
Why are we here?

415
00:27:52,280 --> 00:27:55,120
Special considerations when we're mediating online.

416
00:27:55,120 --> 00:28:01,480
Again, my office, Sarah, I have this set up in this way because I think this is the way

417
00:28:01,480 --> 00:28:05,280
that I would want mediator to approach.

418
00:28:05,280 --> 00:28:06,640
I have a standing desk.

419
00:28:06,640 --> 00:28:09,720
Goes up and down if I need it to.

420
00:28:09,720 --> 00:28:16,800
But I keep it up most of the time because, number one, my health is my wealth, right?

421
00:28:16,800 --> 00:28:17,800
I want to be healthy.

422
00:28:17,800 --> 00:28:18,880
I want to be moving around.

423
00:28:18,880 --> 00:28:25,520
I don't like to be stagnant in anything in life, but not necessarily in work as well.

424
00:28:25,520 --> 00:28:30,440
But there are times where I might be having a difficult conversation and I want to appear

425
00:28:30,440 --> 00:28:33,400
in such a way that it makes sense to sit down.

426
00:28:33,400 --> 00:28:36,880
I also take my jacket off from time to time.

427
00:28:36,880 --> 00:28:42,320
If it's a day that I think it's important to relax a little bit or to show them that

428
00:28:42,320 --> 00:28:45,440
I'm working hard to take my jacket off, it might take my tie off.

429
00:28:45,440 --> 00:28:47,520
It just depends.

430
00:28:47,520 --> 00:28:51,040
I use a real background, but I know plenty of mediators and attorneys who love to use

431
00:28:51,040 --> 00:28:53,800
a Zoom background.

432
00:28:53,800 --> 00:28:55,520
Also background noises.

433
00:28:55,520 --> 00:28:58,600
I have a dog who sometimes wants to come in and wants to go to the bathroom or wants

434
00:28:58,600 --> 00:29:00,560
to go outside, whatever it is.

435
00:29:00,560 --> 00:29:04,000
If that happens, sometimes participants also have a dog.

436
00:29:04,000 --> 00:29:07,760
We'll talk about that.

437
00:29:07,760 --> 00:29:11,920
Zoom links, if you have a case manager or if you do it yourself, make sure you send the

438
00:29:11,920 --> 00:29:15,920
right Zoom link out to everyone and make sure that it's something that everyone can click

439
00:29:15,920 --> 00:29:18,080
on and get right there.

440
00:29:18,080 --> 00:29:20,000
I also like to know and I like to help out.

441
00:29:20,000 --> 00:29:22,360
Will the parties be physically with the attorneys?

442
00:29:22,360 --> 00:29:26,040
Are we going to have to worry about the attorneys in one place and the parties somewhere else

443
00:29:26,040 --> 00:29:28,760
and connectivity issues?

444
00:29:28,760 --> 00:29:33,240
Will there be one conference room with four attorneys and three clients?

445
00:29:33,240 --> 00:29:35,720
If so, how are we going to approach that?

446
00:29:35,720 --> 00:29:38,760
What if we have to have separate conversations?

447
00:29:38,760 --> 00:29:41,520
Break out rooms.

448
00:29:41,520 --> 00:29:47,560
I always set up and encourage mediators to set up more breakout rooms than you think you

449
00:29:47,560 --> 00:29:48,960
will need.

450
00:29:48,960 --> 00:29:50,400
There's no reason not to.

451
00:29:50,400 --> 00:29:54,080
If you have 17 breakout rooms there and you only use four, then nobody cares.

452
00:29:54,080 --> 00:29:55,080
They'll never know.

453
00:29:55,080 --> 00:29:56,080
It doesn't matter.

454
00:29:56,080 --> 00:30:00,760
But once on Zoom, once you set up a breakout room, it's difficult and not impossible to

455
00:30:00,760 --> 00:30:02,560
add more.

456
00:30:02,560 --> 00:30:06,880
I also think about who is going to be in what room.

457
00:30:06,880 --> 00:30:12,240
Especially in my experience, I don't mediate with joint sessions as a de facto.

458
00:30:12,240 --> 00:30:17,080
I use joint sessions sparingly when it makes sense for the dispute.

459
00:30:17,080 --> 00:30:22,520
Those only are times where I know the people who are in that joint room are able to and

460
00:30:22,520 --> 00:30:30,160
willing to have a conversation without making it argumentative and for a specific goal.

461
00:30:30,160 --> 00:30:36,440
I set up the breakout rooms and I manually put people in the room with their attorneys

462
00:30:36,440 --> 00:30:38,680
in the correct room.

463
00:30:38,680 --> 00:30:43,520
If there's ever a doubt, if someone shows up and just says, iPhone number two, I go and

464
00:30:43,520 --> 00:30:44,520
ask, who are you?

465
00:30:44,520 --> 00:30:45,520
You're welcome.

466
00:30:45,520 --> 00:30:46,520
Who are you?

467
00:30:46,520 --> 00:30:47,520
How can I help you?

468
00:30:47,520 --> 00:30:48,520
Where are you going?

469
00:30:48,520 --> 00:30:54,760
I have heard horror stories from attorney clients of mine who had mediators that accidentally

470
00:30:54,760 --> 00:31:00,640
put the wrong people in the wrong room and didn't realize it until too late.

471
00:31:00,640 --> 00:31:05,240
One example that comes to mind is that there was a pre-litigation matter where the defendant

472
00:31:05,240 --> 00:31:09,880
had insurance involved, but they didn't want the plaintiff and the plaintiff's attorney

473
00:31:09,880 --> 00:31:15,800
to know that because it was pre-litigation and it was a situation where they wanted to

474
00:31:15,800 --> 00:31:18,200
try to get the case settled before it went to litigation.

475
00:31:18,200 --> 00:31:22,400
They were willing to put lots more money on the table because there was insurance, but

476
00:31:22,400 --> 00:31:27,800
at the same time, they didn't want the fear for them was that if the plaintiff, the plaintiff's

477
00:31:27,800 --> 00:31:31,440
attorney knew that there was insurance involved, then the settlement demand would increase

478
00:31:31,440 --> 00:31:34,400
threefold or whatever.

479
00:31:34,400 --> 00:31:37,880
That mediator wasn't paying attention, didn't know if someone was and put them in the plaintiff's

480
00:31:37,880 --> 00:31:38,880
room.

481
00:31:38,880 --> 00:31:41,000
Turns out that was the insurance carrier representative.

482
00:31:41,000 --> 00:31:47,360
I need you to say, the client told me that in one of my first mediations with that client

483
00:31:47,360 --> 00:31:52,560
because they were explaining why they were on the lookout for different mediators.

484
00:31:52,560 --> 00:31:58,600
I encourage everyone to be very careful about who is going into which room.

485
00:31:58,600 --> 00:32:05,240
Finally, when mediating online, I always have the mediation briefs and the exhibits from

486
00:32:05,240 --> 00:32:07,680
all parties ready to go.

487
00:32:07,680 --> 00:32:13,840
I have them saved on my desktop or in a folder or whatever it is so that if during the mediation

488
00:32:13,840 --> 00:32:19,360
at any point I need to refer to anything or share a screen or whatever it happens to be,

489
00:32:19,360 --> 00:32:21,840
I don't waste anyone's time trying to find that.

490
00:32:21,840 --> 00:32:24,200
It's all ready to go.

491
00:32:24,200 --> 00:32:30,400
That same token I mentioned earlier, I don't share things unless it is not confidential.

492
00:32:30,400 --> 00:32:33,760
If it's confidential, it doesn't want to be shared, whether it's a document or there's

493
00:32:33,760 --> 00:32:40,120
information, then you have to think about what you're doing and make sure you don't run

494
00:32:40,120 --> 00:32:44,920
afoul of that confidence.

495
00:32:44,920 --> 00:32:49,000
Speaking of confidentiality, I'm not going into great length on that.

496
00:32:49,000 --> 00:32:53,920
I could give a whole hour-long presentation or longer about confidentiality, ethics, etc.

497
00:32:53,920 --> 00:33:02,360
about mediation, but it is worth remembering, whether in person or online, that mediation

498
00:33:02,360 --> 00:33:10,800
confidentiality means that no evidence or anything said in the mediation is admissible

499
00:33:10,800 --> 00:33:14,440
or subject to discovery.

500
00:33:14,440 --> 00:33:19,400
It doesn't necessarily mean that everything told to a mediator in one room is not allowed

501
00:33:19,400 --> 00:33:22,280
to be told to the people in the other room.

502
00:33:22,280 --> 00:33:27,040
There's attorneys and their clients misunderstand that and think, well, because you're telling

503
00:33:27,040 --> 00:33:30,480
a mediator something, they're not allowed to tell anyone that ever.

504
00:33:30,480 --> 00:33:35,600
No, it just means that the things that are said in mediation cannot become admissible

505
00:33:35,600 --> 00:33:38,160
or subject to discovery.

506
00:33:38,160 --> 00:33:41,560
Also, it's worth keeping in mind there are limits to confidentiality.

507
00:33:41,560 --> 00:33:44,600
Again, I won't go into heavy detail here.

508
00:33:44,600 --> 00:33:45,600
Read the rules yourselves.

509
00:33:45,600 --> 00:33:51,520
They're constantly evolving, but it admissible doesn't necessarily mean that what's discussed

510
00:33:51,520 --> 00:33:54,600
in a private meeting cannot be disclosed in the other room.

511
00:33:54,600 --> 00:33:58,280
Also, remember, if you're doing a mandatory settlement conference, and I volunteer for

512
00:33:58,280 --> 00:34:04,640
those from time to time when I'm able to, that doesn't mean that it's a mediation.

513
00:34:04,640 --> 00:34:11,520
A mandatory settlement conference is specifically a creature of statute.

514
00:34:11,520 --> 00:34:16,760
In that statute, it's specifically said that we do not have mediation confidentiality.

515
00:34:16,760 --> 00:34:22,720
It's amazing to me how many attorneys, very intelligent, very respectful attorneys and

516
00:34:22,720 --> 00:34:27,480
clients that don't fully understand the difference between a mandatory settlement conference

517
00:34:27,480 --> 00:34:29,480
and a mediation.

518
00:34:29,480 --> 00:34:34,320
That being said, to step back from it all, when I'm mediating or when I'm conducting

519
00:34:34,320 --> 00:34:39,440
a settlement conference, I always make sure to ask the parties if there's anything that

520
00:34:39,440 --> 00:34:45,840
they've shared with me, documentarity, or verbally that they want me to keep in confidence.

521
00:34:45,840 --> 00:34:52,000
I recognize that my reputation, my good name is based on my ability to keep confidential

522
00:34:52,000 --> 00:34:57,720
things that are required to or requested to be held in confidence.

523
00:34:57,720 --> 00:35:01,420
But it's worth being aware of these issues.

524
00:35:01,420 --> 00:35:07,280
One more thing with confidentiality and the online context.

525
00:35:07,280 --> 00:35:11,360
I personally use a mediation agreement before private mediation.

526
00:35:11,360 --> 00:35:15,920
I have made sure that all the parties and everyone participating reads it, has it well

527
00:35:15,920 --> 00:35:22,280
in advance, and signs it to confirm that they are willing to proceed in the manner where

528
00:35:22,280 --> 00:35:26,040
it is a confidential mediation.

529
00:35:26,040 --> 00:35:30,880
In that, I have tweaked my mediation agreement to include specific provisions related to

530
00:35:30,880 --> 00:35:32,680
online mediations.

531
00:35:32,680 --> 00:35:38,720
I encourage those who use mediation agreements as a mediator to do the same.

532
00:35:38,720 --> 00:35:45,560
For example, this is not exhaustive, but it's clear that you cannot record the mediation.

533
00:35:45,560 --> 00:35:49,200
I don't want someone recording my mediation.

534
00:35:49,200 --> 00:35:55,400
I don't want people coming later on, trying to use it as evidence against another party.

535
00:35:55,400 --> 00:35:59,600
Another issue is being cognizant of others nearby who might overhear.

536
00:35:59,600 --> 00:36:04,120
If someone's a client or the attorney's at home and their spouse or significant other,

537
00:36:04,120 --> 00:36:08,840
their family, their friends happen to be in the room next door and they come in and out

538
00:36:08,840 --> 00:36:13,200
and they might overhear things, I don't know how thin walls are in the room in which the

539
00:36:13,200 --> 00:36:18,600
participants are mediating, but it's worth being cognizant of that.

540
00:36:18,600 --> 00:36:26,120
Also in the same vein, be wary of friends or family who appear midway through mediation,

541
00:36:26,120 --> 00:36:32,360
just like in the in-person context when the person, maybe oftentimes it's a client, a

542
00:36:32,360 --> 00:36:36,840
plaintiff or one of the defendants or something, gets a phone call from their spouse, significant

543
00:36:36,840 --> 00:36:42,520
other, friend who's an attorney, whatever it happens to be, all of a sudden has a different

544
00:36:42,520 --> 00:36:46,120
opinion than the attorney representing that party.

545
00:36:46,120 --> 00:36:49,400
They're getting too little or spending too much or they're offering too much, whatever

546
00:36:49,400 --> 00:36:50,720
it happens to be.

547
00:36:50,720 --> 00:36:55,880
I'm wary of that because it happens from time to time.

548
00:36:55,880 --> 00:36:59,280
Also again, ensure people are never put in the wrong room.

549
00:36:59,280 --> 00:37:03,800
I cannot emphasize enough how important it is to take that extra second to confirm that

550
00:37:03,800 --> 00:37:11,560
you understand that iPhone number two is so and so or that the name on the Zoom link that

551
00:37:11,560 --> 00:37:14,680
pops up is the correct person.

552
00:37:14,680 --> 00:37:20,600
Okay, now onto the second phase of mediation, the opening.

553
00:37:20,600 --> 00:37:25,200
So there's different thoughts from mediators in general, whether in person or online on

554
00:37:25,200 --> 00:37:26,720
the opening.

555
00:37:26,720 --> 00:37:35,880
The textbook way in which I was trained as a mediator is to conduct an opening number

556
00:37:35,880 --> 00:37:40,560
one and to conduct an opening in such a way as to welcome everyone, to give them that

557
00:37:40,560 --> 00:37:47,280
confidence that you are the mediator, to help them get their case resolved and the confidence

558
00:37:47,280 --> 00:37:53,280
that this is the process and the day in which to resolve this dispute.

559
00:37:53,280 --> 00:38:01,360
And to do so in such a way that brings everyone to the same table to begin the conversations

560
00:38:01,360 --> 00:38:04,760
that will work towards resolving the case.

561
00:38:04,760 --> 00:38:15,760
In the opening, I try to show optimism with an understanding of the goals for the mediation,

562
00:38:15,760 --> 00:38:21,360
getting the case resolved, waking up tomorrow knowing that this matter is no longer affecting

563
00:38:21,360 --> 00:38:26,720
your daily life, that this lawsuit will not need to proceed beyond today.

564
00:38:26,720 --> 00:38:29,800
And then I have the confidence that I have done this hundreds of times before and I will

565
00:38:29,800 --> 00:38:32,920
do it hundreds and thousands of times going forward.

566
00:38:32,920 --> 00:38:38,600
And I have the confidence to help you in this path to get this case resolved.

567
00:38:38,600 --> 00:38:43,080
And I commit it again, I'm not sitting down, I will be scanning up all day and I might

568
00:38:43,080 --> 00:38:48,080
be running back and forth and I'm here running the marathon committed to getting this case

569
00:38:48,080 --> 00:38:52,240
settled or helping you get this case settled.

570
00:38:52,240 --> 00:38:58,800
And all with the goal of connection, of connecting with the attorneys, the clients and ensuring

571
00:38:58,800 --> 00:39:06,960
that when difficult conversations are to take place, they're not coming from me individually,

572
00:39:06,960 --> 00:39:14,080
but they're coming with my understanding, my facilitation and evaluation of things that

573
00:39:14,080 --> 00:39:18,720
brings it in the most positive light that the connections that we've built during this

574
00:39:18,720 --> 00:39:23,960
process allow them to make their informed decisions.

575
00:39:23,960 --> 00:39:27,880
And so when I first talked about opening, I said, number one, whether you do an opening

576
00:39:27,880 --> 00:39:32,760
and whether two, the way I do the opening question of whether to do an opening obviously

577
00:39:32,760 --> 00:39:36,000
is one that makes it part of the art of mediation.

578
00:39:36,000 --> 00:39:40,000
I know some mediators who work with similar attorneys, they've worked with hundreds of

579
00:39:40,000 --> 00:39:44,600
times before or dozens of times before, they wouldn't dream of wasting their time with

580
00:39:44,600 --> 00:39:46,120
an opening.

581
00:39:46,120 --> 00:39:47,640
It really depends on the case.

582
00:39:47,640 --> 00:39:51,960
When I work with attorneys with whom I've worked multiple times, I come in there and

583
00:39:51,960 --> 00:39:54,680
I say, good morning, how are your kids?

584
00:39:54,680 --> 00:39:55,680
How is everything else?

585
00:39:55,680 --> 00:40:03,320
And we have a conversation and it's a much less formal way to start that process.

586
00:40:03,320 --> 00:40:09,960
But when I know that the client, maybe I don't know the client personally or maybe the client

587
00:40:09,960 --> 00:40:16,400
might be someone with whom I have it mediated before, then I'll make sure to include those

588
00:40:16,400 --> 00:40:20,800
important issues in the opening.

589
00:40:20,800 --> 00:40:26,240
And the opening might be something where they don't even realize this is an opening.

590
00:40:26,240 --> 00:40:34,320
Again, it's a nuance that allows the phases to be more organic.

591
00:40:34,320 --> 00:40:39,640
Should I walk into a mediation and go up and tap my microphone and say, okay, I will begin

592
00:40:39,640 --> 00:40:40,640
with my opening.

593
00:40:40,640 --> 00:40:41,640
Good morning, everyone.

594
00:40:41,640 --> 00:40:42,640
We are here.

595
00:40:42,640 --> 00:40:43,640
No, of course not.

596
00:40:43,640 --> 00:40:46,960
What a waste of everyone's time.

597
00:40:46,960 --> 00:40:52,120
I've lost at least half the people instantly by doing that.

598
00:40:52,120 --> 00:40:57,320
And so I want to kind of set back and make sure everyone thinks about the opening, not

599
00:40:57,320 --> 00:41:02,560
in terms of a speech given to just bore everyone and get it off your chest, but really an opportunity

600
00:41:02,560 --> 00:41:08,200
to welcome everyone and instill the confidence this is the case that's going to settle today.

601
00:41:08,200 --> 00:41:14,120
I'm mediating online some things to take into account are that again, I want everyone to

602
00:41:14,120 --> 00:41:19,600
feel as welcome as if they just came into my office, my home, and I'm offering them

603
00:41:19,600 --> 00:41:22,320
drinks, food, whatever it happens to be.

604
00:41:22,320 --> 00:41:28,840
And I want everyone to feel welcome regardless of what's behind their screen, regardless

605
00:41:28,840 --> 00:41:33,200
of where they're located or whether they like computers or not.

606
00:41:33,200 --> 00:41:34,520
I don't ignore anyone.

607
00:41:34,520 --> 00:41:37,840
If there's someone who hasn't spoken in the beginning part, I might make the second

608
00:41:37,840 --> 00:41:42,200
time in that room an opportunity to say, Hey, how are you doing so and so?

609
00:41:42,200 --> 00:41:45,840
You know, or I see you're on mute is there anything you want to add?

610
00:41:45,840 --> 00:41:46,840
Right?

611
00:41:46,840 --> 00:41:51,080
Because until I speak to everyone, I don't know what they're thinking.

612
00:41:51,080 --> 00:41:57,200
I also don't know who's really making decisions when I'm not there until I find that out.

613
00:41:57,200 --> 00:42:02,040
Again, the same same goal of explaining why we're there, what the goals are, the goals

614
00:42:02,040 --> 00:42:07,480
get the case settled today, so everyone can move on from today.

615
00:42:07,480 --> 00:42:09,600
And it's an opportunity to start listening and observing.

616
00:42:09,600 --> 00:42:14,680
So at times there are attorneys or clients who I'll get two words out and already they're

617
00:42:14,680 --> 00:42:16,160
jumping right into the facts.

618
00:42:16,160 --> 00:42:20,640
And they're so upset about this case or whatever it happens to be.

619
00:42:20,640 --> 00:42:24,080
I'm not going to cut them off and tell them, wait, I got to do my opening first, then you

620
00:42:24,080 --> 00:42:25,080
can talk.

621
00:42:25,080 --> 00:42:26,080
Of course not.

622
00:42:26,080 --> 00:42:29,440
I'm going to let them tell me everything that's important to them, get it off their chest,

623
00:42:29,440 --> 00:42:31,760
and we'll go from there.

624
00:42:31,760 --> 00:42:35,040
And I do so with what I call relaxed formality, right?

625
00:42:35,040 --> 00:42:36,040
I dress formally.

626
00:42:36,040 --> 00:42:37,040
I work formally.

627
00:42:37,040 --> 00:42:42,360
I have a very strategic approach to things, but at the same time I want people to be comfortable

628
00:42:42,360 --> 00:42:49,400
and to share with me and to explore things with me in a relaxed manner.

629
00:42:49,400 --> 00:42:50,400
Third phase.

630
00:42:50,400 --> 00:42:52,800
Again, this is an organic situation.

631
00:42:52,800 --> 00:42:56,320
This happens oftentimes in the same conversation of the opening.

632
00:42:56,320 --> 00:42:58,520
It's communicating.

633
00:42:58,520 --> 00:43:00,160
And my goal here is threefold.

634
00:43:00,160 --> 00:43:03,800
To connect, to reflect, and to dissect.

635
00:43:03,800 --> 00:43:11,640
And I use the word connection a lot, but it's intentional because my experience is that

636
00:43:11,640 --> 00:43:16,560
there are certain percentages of cases that are just going to get settled no matter what

637
00:43:16,560 --> 00:43:19,400
I do or don't do as long as I don't mess it up, right?

638
00:43:19,400 --> 00:43:21,720
And I think most mediators won't admit that.

639
00:43:21,720 --> 00:43:25,600
But I admit it because there are some cases that they just need to get settled.

640
00:43:25,600 --> 00:43:27,040
Everyone wants to get the case settled.

641
00:43:27,040 --> 00:43:30,560
Plain if has one dollar amount in mind or arranged.

642
00:43:30,560 --> 00:43:34,480
Patience has a dollar amount arranged in mind, and as long as the zone of potential agreement

643
00:43:34,480 --> 00:43:39,760
is big enough and close enough, then I have to go out of my way to try to get the case

644
00:43:39,760 --> 00:43:40,760
not settled.

645
00:43:40,760 --> 00:43:42,280
So there's a percentage of those cases, right?

646
00:43:42,280 --> 00:43:48,520
But I'm looking for the cases that might have a chance of settling, but people aren't

647
00:43:48,520 --> 00:43:53,240
sure whether they're willing to fully commit yet or whether today's the day or whether

648
00:43:53,240 --> 00:43:58,600
this is really a informed decision that they want to make.

649
00:43:58,600 --> 00:44:04,880
And so that's what I try to find the X factor, the ability to get cases settled when others

650
00:44:04,880 --> 00:44:09,360
might think it's not the day or not the case to be settled.

651
00:44:09,360 --> 00:44:12,400
And the connection is how I found in a genuine way.

652
00:44:12,400 --> 00:44:13,960
I genuinely enjoy people.

653
00:44:13,960 --> 00:44:15,560
I enjoy learning about people.

654
00:44:15,560 --> 00:44:21,280
But the connection is oftentimes the difference between a case that settles or one that just

655
00:44:21,280 --> 00:44:26,480
continues to go through litigation because just wasn't the time wasn't right.

656
00:44:26,480 --> 00:44:31,440
I also look at the reflection of why we're there, whether it's through the story of the

657
00:44:31,440 --> 00:44:37,960
plaintiff, the defense or whomever it is that's there, reflecting on what they saw, what are

658
00:44:37,960 --> 00:44:46,720
their stories, and why are they part of this multiple story situation that led us to here.

659
00:44:46,720 --> 00:44:54,640
And then as I go through, I use the word dissect, others might use an evaluative stance, but

660
00:44:54,640 --> 00:44:59,960
I look to dissect kind of the factual and legal issues at play and to do it in such

661
00:44:59,960 --> 00:45:04,640
a way where I'm not going to be banging on my table, explain to people why they're going

662
00:45:04,640 --> 00:45:10,400
to lose a trial and why they should either take less money or pay more, but in such a

663
00:45:10,400 --> 00:45:18,320
way as to draw inferences and conclusions from the parties or from the attorneys into

664
00:45:18,320 --> 00:45:20,600
risks that might be there and an evaluation.

665
00:45:20,600 --> 00:45:26,240
So do an evaluation of the issues without specifically telling them this is what I'm

666
00:45:26,240 --> 00:45:27,740
doing.

667
00:45:27,740 --> 00:45:31,200
And so part of the communication, again, I'll leave there is looking at what's verbal and

668
00:45:31,200 --> 00:45:35,800
nonverbal, what's not being said in addition to what is being said.

669
00:45:35,800 --> 00:45:42,200
And I know it's ironic that I'm speaking for an hour here, but in my mediation practice,

670
00:45:42,200 --> 00:45:45,480
I listen more than I talk.

671
00:45:45,480 --> 00:45:51,400
And I do so because I know how this can play out, I've already written the book in my head

672
00:45:51,400 --> 00:45:52,920
of how this can play out.

673
00:45:52,920 --> 00:45:56,280
I want to see how it does play out based on the actors in front of me.

674
00:45:56,280 --> 00:46:05,400
I want them to make their own conclusions and to tell me what they want to tell them

675
00:46:05,400 --> 00:46:10,640
so that I can understand their needs and help them to get their case out.

676
00:46:10,640 --> 00:46:16,080
Very briefly, in the world of communication, and this is more directed to attorneys to

677
00:46:16,080 --> 00:46:20,160
remember the duties of truth and truthfulness and candor.

678
00:46:20,160 --> 00:46:24,440
We can't make a, lawyers cannot knowingly make a false statement of material factor

679
00:46:24,440 --> 00:46:25,720
law, right?

680
00:46:25,720 --> 00:46:30,520
But there's not an affirmative duty to inform an opposing party of relevant facts.

681
00:46:30,520 --> 00:46:35,040
As a mediator, this comes up from time to time because many mediators are attorneys

682
00:46:35,040 --> 00:46:40,560
and the rules do apply, but sometimes parties will ask me a direct question that I've been

683
00:46:40,560 --> 00:46:45,400
specifically told not to answer by the other side for confidential reasons or whatever.

684
00:46:45,400 --> 00:46:49,360
How to address that, whether it's with a question, whether it's with a, what, what do you need

685
00:46:49,360 --> 00:46:51,400
that information for?

686
00:46:51,400 --> 00:46:52,400
It depends, right?

687
00:46:52,400 --> 00:46:56,360
But something to keep in mind.

688
00:46:56,360 --> 00:47:03,960
When mediating online, other things are communicating the manner in which you approach your computer

689
00:47:03,960 --> 00:47:10,680
looking at the camera, stand aside or having your chin down here, whatever it happens to

690
00:47:10,680 --> 00:47:15,920
be, um, affects oftentimes how people perceive you.

691
00:47:15,920 --> 00:47:20,560
And so I'm very cognizant of standing full attention.

692
00:47:20,560 --> 00:47:22,400
I don't look down on my phone.

693
00:47:22,400 --> 00:47:25,400
I'm not here on my other computer doing something.

694
00:47:25,400 --> 00:47:29,600
I direct my attention to the person speaking and I constantly am keeping an eye on others

695
00:47:29,600 --> 00:47:34,840
if there are others in the room, but I recognize that it's most important to connect and to

696
00:47:34,840 --> 00:47:37,040
focus on the people that are right there.

697
00:47:37,040 --> 00:47:39,240
Again, connection is huge.

698
00:47:39,240 --> 00:47:44,240
And I know the sales mantra of always be closing, I would switch that somewhat to always be

699
00:47:44,240 --> 00:47:46,040
connecting, right?

700
00:47:46,040 --> 00:47:47,040
Every little thing.

701
00:47:47,040 --> 00:47:51,040
When a dog comes into someone's room or a kid runs in or there's noise in the background,

702
00:47:51,040 --> 00:47:57,320
oh, I hear it's garbage day, whatever it is, that's another opportunity to connect with

703
00:47:57,320 --> 00:47:58,400
people.

704
00:47:58,400 --> 00:48:01,640
Um, also, I, from time to time, check in with everyone.

705
00:48:01,640 --> 00:48:02,640
How are we doing?

706
00:48:02,640 --> 00:48:03,640
Are you good?

707
00:48:03,640 --> 00:48:04,640
Did you get lunch?

708
00:48:04,640 --> 00:48:05,640
Are you eating yet?

709
00:48:05,640 --> 00:48:06,640
Do you need a snack?

710
00:48:06,640 --> 00:48:07,640
Are you hungry?

711
00:48:07,640 --> 00:48:08,640
You need, you need coffee.

712
00:48:08,640 --> 00:48:12,040
Uh, same thing with wifi computer issues.

713
00:48:12,040 --> 00:48:17,840
Um, if your wifi cuts out, I'm still here.

714
00:48:17,840 --> 00:48:22,200
That's a beautiful thing to say that says more than just I have good wifi.

715
00:48:22,200 --> 00:48:26,480
It says I'm committed to the process and I'm not going anywhere.

716
00:48:26,480 --> 00:48:34,200
I also intentionally just looked down at my phone, but I did such because when I'm mediating,

717
00:48:34,200 --> 00:48:35,400
I'm fully here.

718
00:48:35,400 --> 00:48:36,680
I'm not answering phone calls.

719
00:48:36,680 --> 00:48:39,520
I'm not texting people unless it's intentional.

720
00:48:39,520 --> 00:48:40,800
It's part of the case.

721
00:48:40,800 --> 00:48:45,160
Um, but communication is huge.

722
00:48:45,160 --> 00:48:50,000
Now almost to the, to the meat here, we're getting to the negotiated.

723
00:48:50,000 --> 00:48:53,320
This is where mediators help to broker the deal.

724
00:48:53,320 --> 00:48:56,960
And I have in the corner there timing is everything.

725
00:48:56,960 --> 00:48:57,960
You go too soon.

726
00:48:57,960 --> 00:49:00,080
You start talking about money too soon.

727
00:49:00,080 --> 00:49:04,080
You start talking about, well, let's get this case settled too soon.

728
00:49:04,080 --> 00:49:10,320
You run the risk of offending people and making them think you didn't listen to them.

729
00:49:10,320 --> 00:49:18,840
And so there's a definite, uh, nuance to knowing when to, to talk money and when to negotiate

730
00:49:18,840 --> 00:49:21,960
and when to, you know, it depends on has there been an opening demand?

731
00:49:21,960 --> 00:49:26,040
Has there been an opening offer where we in the negotiation before you got to mediation,

732
00:49:26,040 --> 00:49:27,680
whatever it happens to be.

733
00:49:27,680 --> 00:49:31,560
And as the negotiation takes place, whether in person or online, we talk about interests,

734
00:49:31,560 --> 00:49:32,560
not positions.

735
00:49:32,560 --> 00:49:33,560
Okay.

736
00:49:33,560 --> 00:49:36,360
So they, they demand an X, but what do they really want?

737
00:49:36,360 --> 00:49:39,880
They want to get this case settled because they want to move on with their life, whatever

738
00:49:39,880 --> 00:49:41,960
it happens to be.

739
00:49:41,960 --> 00:49:47,640
Um, at times in the negotiation process, I'll be tired.

740
00:49:47,640 --> 00:49:49,480
So I know other people are tired.

741
00:49:49,480 --> 00:49:50,480
They're exhausted.

742
00:49:50,480 --> 00:49:51,480
They're frustrated.

743
00:49:51,480 --> 00:49:55,160
I addressed that head on and I encourage you to do the same.

744
00:49:55,160 --> 00:49:58,760
Man, this has been a long day.

745
00:49:58,760 --> 00:50:02,640
Wouldn't this be nice if we didn't have, if you didn't have to worry about these issues

746
00:50:02,640 --> 00:50:03,920
anymore?

747
00:50:03,920 --> 00:50:07,640
What if today was the day where you get to put this all behind you?

748
00:50:07,640 --> 00:50:10,680
Do you think trial is going to be easy?

749
00:50:10,680 --> 00:50:13,080
Do you think trial is going to be fun?

750
00:50:13,080 --> 00:50:19,160
Whatever it happens to be and be strategic as a mediator.

751
00:50:19,160 --> 00:50:27,320
It's amazing to me how important it is to plan what my goal of a certain conversation

752
00:50:27,320 --> 00:50:32,080
is and then to go and have that conversation.

753
00:50:32,080 --> 00:50:36,600
And if my goal is just to talk for a little bit and then get a number out of them or whatever

754
00:50:36,600 --> 00:50:38,560
it happens to be, even so be it.

755
00:50:38,560 --> 00:50:43,920
But to strategize, to really think about what the goal is and how I'm going to accomplish

756
00:50:43,920 --> 00:50:48,240
that has been so sick, helped me to be so successful in mediations.

757
00:50:48,240 --> 00:50:51,680
During the timing of certain things, concerning and then also controlling my emotions.

758
00:50:51,680 --> 00:50:55,200
We might have a conversation with someone in one room and people are screaming and there's

759
00:50:55,200 --> 00:51:00,400
tears and it's a complete upsetting situation.

760
00:51:00,400 --> 00:51:02,120
They're screaming at everyone.

761
00:51:02,120 --> 00:51:07,720
I come back, I leave the room, I take a break.

762
00:51:07,720 --> 00:51:10,840
I always have trail mix here, eat a couple of nuts.

763
00:51:10,840 --> 00:51:16,440
I always have coffee or tea, water, I take a break and then I go back into the other

764
00:51:16,440 --> 00:51:20,880
room with my strategic conversation ready.

765
00:51:20,880 --> 00:51:27,160
If I bring the energy from one room to the other room, I only do that when it's intentional.

766
00:51:27,160 --> 00:51:29,000
It will not serve everyone.

767
00:51:29,000 --> 00:51:31,720
If I walk in the room and say, what is going on in that room?

768
00:51:31,720 --> 00:51:33,520
There are disaster.

769
00:51:33,520 --> 00:51:35,760
Everyone's a mess.

770
00:51:35,760 --> 00:51:38,640
And I add panic to this room.

771
00:51:38,640 --> 00:51:41,800
No, but it wouldn't do anyone good.

772
00:51:41,800 --> 00:51:45,200
So control your emotions, be strategic and when mediating online, again, take breaks

773
00:51:45,200 --> 00:51:46,200
between the rooms.

774
00:51:46,200 --> 00:51:49,160
Take care of yourself.

775
00:51:49,160 --> 00:51:50,160
Trail mix is how I do it.

776
00:51:50,160 --> 00:51:56,200
I remind people in mediation to take care of themselves.

777
00:51:56,200 --> 00:52:00,560
I also look at them and say, well, I'm going to be in the next room for a while.

778
00:52:00,560 --> 00:52:05,280
While I'm there, can you help me to understand this issue or these documents or can you find

779
00:52:05,280 --> 00:52:06,440
this for me?

780
00:52:06,440 --> 00:52:08,680
Or while I'm there, why don't you get lunch?

781
00:52:08,680 --> 00:52:10,280
Why don't you go order something?

782
00:52:10,280 --> 00:52:12,600
Why don't you go get a cup of coffee and then I'll come back?

783
00:52:12,600 --> 00:52:16,680
Come to use the restroom, whatever it happens to be.

784
00:52:16,680 --> 00:52:17,880
And then I check in strategically.

785
00:52:17,880 --> 00:52:23,280
There comes times in some mediations where one party needs additional time.

786
00:52:23,280 --> 00:52:27,480
They're talking to assurance adjusters far away or they're dealing with an issue that

787
00:52:27,480 --> 00:52:29,440
they need to work through.

788
00:52:29,440 --> 00:52:33,440
And I don't want the people in the other room to think that I'm just ignoring them.

789
00:52:33,440 --> 00:52:37,320
When I was an advocate, I would sometimes hear mediators down the hall who are talking

790
00:52:37,320 --> 00:52:39,800
to their golf buddies figuring out what they're going to do on the weekend.

791
00:52:39,800 --> 00:52:43,120
And I always got frustrated by that because I thought, here I am.

792
00:52:43,120 --> 00:52:45,040
I came all this way.

793
00:52:45,040 --> 00:52:49,440
I'm here to get the case settled and my clients are paying me.

794
00:52:49,440 --> 00:52:54,120
They're paying the mediator and the mediator seems like they're working on what they're

795
00:52:54,120 --> 00:52:57,920
going to do for golf this weekend.

796
00:52:57,920 --> 00:53:02,600
I make sure I check in with people and say, hey, just so you know, I don't have the number

797
00:53:02,600 --> 00:53:03,600
yet.

798
00:53:03,600 --> 00:53:04,600
We're working on it.

799
00:53:04,600 --> 00:53:05,600
There's a lot going on there.

800
00:53:05,600 --> 00:53:06,600
I'll tell you about it a little bit.

801
00:53:06,600 --> 00:53:10,400
But I want to make sure you guys are good and I'll be back as soon as possible.

802
00:53:10,400 --> 00:53:11,400
Right there.

803
00:53:11,400 --> 00:53:13,160
15 seconds.

804
00:53:13,160 --> 00:53:17,200
Everyone knows they're being taken care of and they're not fuming because they think

805
00:53:17,200 --> 00:53:21,000
I'm out talking to my golf buddies to figure out what we're going to do this weekend or

806
00:53:21,000 --> 00:53:23,720
what tee time will be.

807
00:53:23,720 --> 00:53:32,440
Finally, the reason we're all here closing, how do you seal the deal?

808
00:53:32,440 --> 00:53:41,160
This is where we have to decide how we're going to get people over possibly an impasse

809
00:53:41,160 --> 00:53:43,360
and towards the goal of the printer.

810
00:53:43,360 --> 00:53:49,120
The goal is to get the case settled, to seal the deal, to get the result that everyone's

811
00:53:49,120 --> 00:53:54,400
here to obtain and how do we do that?

812
00:53:54,400 --> 00:54:00,640
In person and online, relatively the same, but just keeping in mind ways to deal with

813
00:54:00,640 --> 00:54:01,640
impasse.

814
00:54:01,640 --> 00:54:02,640
There are ways to take a break.

815
00:54:02,640 --> 00:54:05,320
Hey, I'm going to go to the room right now, take a break.

816
00:54:05,320 --> 00:54:07,600
I know we're stressed out, whatever.

817
00:54:07,600 --> 00:54:12,000
I love to use the term that I've coined myself, which is that we're getting dangerously close

818
00:54:12,000 --> 00:54:13,280
to settling.

819
00:54:13,280 --> 00:54:19,200
We might be hundreds of thousands of dollars apart with the most recent offers and counteroffers,

820
00:54:19,200 --> 00:54:23,440
but I will tell people and I will signal to them, we're getting dangerously close.

821
00:54:23,440 --> 00:54:28,440
Based on the information I have from both rooms or all the rooms, we are working towards

822
00:54:28,440 --> 00:54:31,200
the correct goal of getting this matter resolved.

823
00:54:31,200 --> 00:54:35,160
So let's keep down that path and let's just figure out a way.

824
00:54:35,160 --> 00:54:37,080
Everyone's here for the same goal.

825
00:54:37,080 --> 00:54:42,600
Everyone wants to get it settled and I think we're darn close, so let's figure out how.

826
00:54:42,600 --> 00:54:44,560
And use time on your side.

827
00:54:44,560 --> 00:54:47,240
If you have a mediation schedule for the full day, that's one thing.

828
00:54:47,240 --> 00:54:51,520
If you've only done a half day, say, listen, it's been three and a half hours.

829
00:54:51,520 --> 00:54:57,480
I think everyone's ready just to get there, to go to the finish line.

830
00:54:57,480 --> 00:55:02,840
Everybody online, number one, and again, this goes back to my thought that some cases are

831
00:55:02,840 --> 00:55:08,360
going to settle regardless of how excellent or terrible the mediator happens to be as

832
00:55:08,360 --> 00:55:09,800
long as they don't ruin it.

833
00:55:09,800 --> 00:55:12,440
So don't get in the way of a good settlement.

834
00:55:12,440 --> 00:55:15,760
That's going that way and if it's going to go that way, then just keep everyone going

835
00:55:15,760 --> 00:55:18,240
that way.

836
00:55:18,240 --> 00:55:19,240
Acknowledge Zoom fatigue.

837
00:55:19,240 --> 00:55:25,440
Again, by the end of the day, I don't want people to leave the mediation exhausted and

838
00:55:25,440 --> 00:55:27,960
feeling like we didn't accomplish anything if the case doesn't settle.

839
00:55:27,960 --> 00:55:32,680
I want people to go and to be ready to settle the case and if you're tired, we use that

840
00:55:32,680 --> 00:55:37,640
time, acknowledge the exhaustion and say, great, let's get this case settled so you

841
00:55:37,640 --> 00:55:39,800
don't have to deal with ever again.

842
00:55:39,800 --> 00:55:48,640
Again, breakout rooms can be helpful, joint sessions, if they're tailored to an effective

843
00:55:48,640 --> 00:55:51,080
goal can be very helpful.

844
00:55:51,080 --> 00:55:53,320
And then this is really important.

845
00:55:53,320 --> 00:55:55,920
Know the value of offline conversations.

846
00:55:55,920 --> 00:56:01,040
This is something that was done in person and can be done in person, but I think it's

847
00:56:01,040 --> 00:56:05,800
done easier and more effectively oftentimes online.

848
00:56:05,800 --> 00:56:11,840
By example, I had a case recently where in each breakout session with the attorney and

849
00:56:11,840 --> 00:56:16,560
his client, he was just an attorney was advocating saying, we're going to take this to trial.

850
00:56:16,560 --> 00:56:17,560
There's no way.

851
00:56:17,560 --> 00:56:19,560
This is crazy.

852
00:56:19,560 --> 00:56:22,840
We're going to counter sue, blah, blah, blah.

853
00:56:22,840 --> 00:56:25,400
And then I text him and say, can we talk offline?

854
00:56:25,400 --> 00:56:26,400
So we do.

855
00:56:26,400 --> 00:56:28,280
We have a phone call separately.

856
00:56:28,280 --> 00:56:29,760
He's not in the same room with his client.

857
00:56:29,760 --> 00:56:31,520
So it's easy to do.

858
00:56:31,520 --> 00:56:33,960
And he calls me and I say, hey, what's really going on?

859
00:56:33,960 --> 00:56:38,160
I mean, because you know what the law is in these facts, am I missing something?

860
00:56:38,160 --> 00:56:39,160
What's going on?

861
00:56:39,160 --> 00:56:41,680
And I say it politely because I'm not here to offend anyone.

862
00:56:41,680 --> 00:56:46,480
I'm not here to, you know, if I enraged him, then I've lost him and I've lost his client

863
00:56:46,480 --> 00:56:47,480
and all that.

864
00:56:47,480 --> 00:56:50,640
And he laughs and he says, yep, you saw it too.

865
00:56:50,640 --> 00:56:54,680
Well, we have these issues with the insurance and there's a potential malpractice claim outside

866
00:56:54,680 --> 00:56:58,320
these other attorneys who were representing my client before me.

867
00:56:58,320 --> 00:57:00,320
And you know what?

868
00:57:00,320 --> 00:57:02,520
It's a disaster.

869
00:57:02,520 --> 00:57:06,120
But we have no choice but to fight because I don't think you're ever going to settle for

870
00:57:06,120 --> 00:57:08,200
where we want to sell.

871
00:57:08,200 --> 00:57:09,200
Bam.

872
00:57:09,200 --> 00:57:10,200
Case hinged on that.

873
00:57:10,200 --> 00:57:13,760
And with that information, we go back, get the case settled shortly thereafter.

874
00:57:13,760 --> 00:57:14,760
Right.

875
00:57:14,760 --> 00:57:15,760
And that was so easy.

876
00:57:15,760 --> 00:57:19,460
I didn't have to go into a room and say, hey, can I talk to you separately down the hall?

877
00:57:19,460 --> 00:57:20,880
Make it a big deal.

878
00:57:20,880 --> 00:57:24,600
He probably went back and told his client just so you know, I talked to the mediator,

879
00:57:24,600 --> 00:57:27,920
but it changed the tenor of everything.

880
00:57:27,920 --> 00:57:31,120
And so when I went back into his room and he's still pounding the table and advocating

881
00:57:31,120 --> 00:57:34,800
for his client, I know what he just told me.

882
00:57:34,800 --> 00:57:40,960
And I understand that the needs and interests, since we can get the case settled.

883
00:57:40,960 --> 00:57:45,920
So embrace the silences, decide conversations and above all humanity.

884
00:57:45,920 --> 00:57:47,080
It really is one of those things.

885
00:57:47,080 --> 00:57:51,640
And when people see that you're a human, you're generally interested in, and their story and

886
00:57:51,640 --> 00:57:56,080
helping them to resolve their disputes, it's amazing what they will show you and tell you

887
00:57:56,080 --> 00:58:00,200
that will help you get to that goal.

888
00:58:00,200 --> 00:58:03,720
One other suggestion for breaking an impasse is when in doubt sing.

889
00:58:03,720 --> 00:58:08,520
I'm not going to horrify all of you by singing any of these songs, but these eight songs

890
00:58:08,520 --> 00:58:13,560
all come to mind at times and many more during the Asian process.

891
00:58:13,560 --> 00:58:18,880
And what I do is I don't sing them, but I might just quote songs, quote a movie, quote

892
00:58:18,880 --> 00:58:20,840
something at some point.

893
00:58:20,840 --> 00:58:26,920
Instead of telling someone, hey, this is the best you're going to get, you're welcome

894
00:58:26,920 --> 00:58:28,440
and you better just grab it and run.

895
00:58:28,440 --> 00:58:33,880
I say, hey, you know Steve Miller band said take the money and run.

896
00:58:33,880 --> 00:58:39,280
Or Ken Rogers love to say, you got no one to hold them, no one to fold them, no one

897
00:58:39,280 --> 00:58:40,720
to walk away, no one to run.

898
00:58:40,720 --> 00:58:46,000
Right, it gets a laugh and usually if it's done correctly, can get everyone to light

899
00:58:46,000 --> 00:58:51,080
in the mood and kind of set the perspective of why we're here and why it makes sense for

900
00:58:51,080 --> 00:58:54,880
them to do what we're talking about.

901
00:58:54,880 --> 00:58:56,560
Rolling Stones are great as well.

902
00:58:56,560 --> 00:59:03,000
Any other things like that, these are helpful ways to kind of switch the narrative at times

903
00:59:03,000 --> 00:59:06,080
or change the perspective.

904
00:59:06,080 --> 00:59:07,080
And finally the goal.

905
00:59:07,080 --> 00:59:12,880
The reason we're all mediators and is to help people get the case subtle.

906
00:59:12,880 --> 00:59:17,680
And just because the case settles doesn't mean we are supposed to let up and just relax

907
00:59:17,680 --> 00:59:19,960
and just hop the champagne just yet.

908
00:59:19,960 --> 00:59:20,960
Right.

909
00:59:20,960 --> 00:59:21,960
Case settles.

910
00:59:21,960 --> 00:59:24,160
Everyone's agreed on the key terms.

911
00:59:24,160 --> 00:59:26,680
What do we do from there?

912
00:59:26,680 --> 00:59:28,680
Do we?

913
00:59:28,680 --> 00:59:31,000
And this is specifically to online, right?

914
00:59:31,000 --> 00:59:36,320
In person, sometimes I had the experience as an advocate where great, someone's going

915
00:59:36,320 --> 00:59:37,560
to write out a term sheet.

916
00:59:37,560 --> 00:59:42,400
Here's the three, four, five key terms and we're going to, everyone's going to sign.

917
00:59:42,400 --> 00:59:43,400
We're done.

918
00:59:43,400 --> 00:59:48,480
Other times I was there until midnight because the parties or the attorneys wanted to get

919
00:59:48,480 --> 00:59:52,840
the actual long form settled in agreement signed by everyone before you walked out the

920
00:59:52,840 --> 00:59:53,840
door.

921
00:59:53,840 --> 00:59:54,840
That's fine too.

922
00:59:54,840 --> 00:59:58,000
Online, what do we do?

923
00:59:58,000 --> 01:00:02,560
Sometimes we look at confirming email.

924
01:00:02,560 --> 01:00:03,920
Does the mediator send it out?

925
01:00:03,920 --> 01:00:05,480
Does defense counsel, plaintiffs counsel?

926
01:00:05,480 --> 01:00:06,480
Who sends it out?

927
01:00:06,480 --> 01:00:07,720
Do you copy the mediator?

928
01:00:07,720 --> 01:00:09,360
How do we know?

929
01:00:09,360 --> 01:00:14,000
What if there's three key terms and they haven't talked about the non-monetary issues or other

930
01:00:14,000 --> 01:00:15,160
things?

931
01:00:15,160 --> 01:00:20,480
Keep these things in mind and don't be surprised when a case settles and you haven't thought

932
01:00:20,480 --> 01:00:22,280
these through.

933
01:00:22,280 --> 01:00:25,120
The worst situation is being there and saying, well, I don't know.

934
01:00:25,120 --> 01:00:28,640
I don't know who's going to draft the long form settlement agreement.

935
01:00:28,640 --> 01:00:30,560
We haven't even thought of it.

936
01:00:30,560 --> 01:00:35,880
These are conversations that could have been held the week before and all you have to do

937
01:00:35,880 --> 01:00:38,280
is fill in the dollar sign.

938
01:00:38,280 --> 01:00:43,720
If it's possible to have the attorneys share drafts of a settlement agreement before mediation,

939
01:00:43,720 --> 01:00:45,000
that's wonderful.

940
01:00:45,000 --> 01:00:50,120
The reality is it's not done as often as it should be in my experience, but at the same

941
01:00:50,120 --> 01:00:56,240
time, if it is done in the correct manner where all we need to do is fill in the number,

942
01:00:56,240 --> 01:01:01,000
it already helps people psychologically get there before they even show up in person or

943
01:01:01,000 --> 01:01:04,080
online.

944
01:01:04,080 --> 01:01:07,800
Same thing as mediators, we have been trained.

945
01:01:07,800 --> 01:01:09,160
Most of us have been trained.

946
01:01:09,160 --> 01:01:12,720
Don't be the ones to drop the settlement agreement for them.

947
01:01:12,720 --> 01:01:17,640
Whether we send the confirming email, here's my understanding of what agreement was reached

948
01:01:17,640 --> 01:01:18,680
today.

949
01:01:18,680 --> 01:01:22,200
I think that's fine.

950
01:01:22,200 --> 01:01:25,520
Sometimes I worry if the attorneys send it to each other, it's not going to be worded

951
01:01:25,520 --> 01:01:27,920
the correct way and they haven't been in the same room.

952
01:01:27,920 --> 01:01:32,280
I've been in each room all day, so it just depends.

953
01:01:32,280 --> 01:01:35,520
Then we talk about going back here and forcibility.

954
01:01:35,520 --> 01:01:40,520
I'm not going to read the whole California Code of Civil Procedure 664.6, especially

955
01:01:40,520 --> 01:01:43,640
because coming January 1st, 2025, it's going to change.

956
01:01:43,640 --> 01:01:47,600
When this recording is up on the Beverly Hills Bar Association website, I don't know when

957
01:01:47,600 --> 01:01:48,600
you're going to see it.

958
01:01:48,600 --> 01:01:55,400
If it's changed, then go ahead and look that up because I didn't put the new role in yet.

959
01:01:55,400 --> 01:02:00,960
For our purposes, a few years past, the rules were changed that attorneys who represent

960
01:02:00,960 --> 01:02:04,400
the party can sign a settlement agreement on the party's behalf.

961
01:02:04,400 --> 01:02:10,560
Obviously, there's caveats there for civil harassment actions, et cetera.

962
01:02:10,560 --> 01:02:15,920
My takeaway from this all is that I don't want to ever be in a situation where I have

963
01:02:15,920 --> 01:02:21,320
sat by while people think they're signing an unenforceable agreement.

964
01:02:21,320 --> 01:02:25,400
I don't want a year from now or six months from now a phone call or an email saying,

965
01:02:25,400 --> 01:02:27,200
hey, remember you helped us mediate that case?

966
01:02:27,200 --> 01:02:31,520
Yeah, one party changed their mind and we can't even enforce it because we didn't send

967
01:02:31,520 --> 01:02:34,120
the correct term sheet around.

968
01:02:34,120 --> 01:02:35,720
Just keep aware of this.

969
01:02:35,720 --> 01:02:38,800
Same thing here, miscibility of a settlement agreement.

970
01:02:38,800 --> 01:02:41,320
Something to keep in mind, the rules change.

971
01:02:41,320 --> 01:02:48,200
They're constantly being updated, but currently as of September in 2024, this is the evidentiary

972
01:02:48,200 --> 01:02:52,520
role on that regard.

973
01:02:52,520 --> 01:02:57,520
And finally, there are situations in which not every case will settle.

974
01:02:57,520 --> 01:02:59,600
And I hate to say it.

975
01:02:59,600 --> 01:03:04,240
I have some mediators I love who say I have helped people to settle 100% of the cases

976
01:03:04,240 --> 01:03:06,800
that have been informed in front of me.

977
01:03:06,800 --> 01:03:09,920
And then you wait for a second and they say, except for the ones where somebody else messed

978
01:03:09,920 --> 01:03:13,000
it up.

979
01:03:13,000 --> 01:03:17,280
Not every case will settle on the first day or the first attempt at mediation.

980
01:03:17,280 --> 01:03:19,720
It's just natural.

981
01:03:19,720 --> 01:03:25,320
But what I think the best mediators do that separates them from others is they don't give

982
01:03:25,320 --> 01:03:26,400
up.

983
01:03:26,400 --> 01:03:29,800
And so if I ever have a case that didn't settle, maybe it's pre-illegation, maybe it's something

984
01:03:29,800 --> 01:03:32,440
that just wasn't the right time.

985
01:03:32,440 --> 01:03:33,440
The right people weren't there.

986
01:03:33,440 --> 01:03:35,160
We had different expectations.

987
01:03:35,160 --> 01:03:37,720
We didn't have enough discovery.

988
01:03:37,720 --> 01:03:43,960
Then I follow up and I make sure that whatever the issue was, I find out when it will be

989
01:03:43,960 --> 01:03:48,960
resolved and determining what can I do to help forward that goal?

990
01:03:48,960 --> 01:03:54,440
How can I help to make sure that the case will be resolved?

991
01:03:54,440 --> 01:03:58,880
And I encourage everyone to do that should you become a neutral as well.

992
01:03:58,880 --> 01:04:01,000
That being said, I appreciate all of your time.

993
01:04:01,000 --> 01:04:02,000
I thank you.

994
01:04:02,000 --> 01:04:09,080
And as a final thought, I will say I personally have found the transition to mediation incredibly

995
01:04:09,080 --> 01:04:10,080
fulfilling.

996
01:04:10,080 --> 01:04:16,400
I've had a lifetime goal of mine from when I was a young kid, seeing my four older siblings

997
01:04:16,400 --> 01:04:21,400
and their disputes and watching them interact with my parents almost as neutrals at times.

998
01:04:21,400 --> 01:04:22,800
I know this is the path for me.

999
01:04:22,800 --> 01:04:25,400
I will say it's not for everyone.

1000
01:04:25,400 --> 01:04:29,360
But for those of you that decide to go down this path, I wish you all the best.

1001
01:04:29,360 --> 01:04:34,680
And I hope, should you see this presentation and want to drop me a line, here's my email

1002
01:04:34,680 --> 01:04:36,920
address matlainadr.com.

1003
01:04:36,920 --> 01:04:38,320
There's my website.

1004
01:04:38,320 --> 01:04:39,480
Love to hear from you.

1005
01:04:39,480 --> 01:04:43,080
I wish you all the best in your careers, no matter what you do.

1006
01:04:43,080 --> 01:04:44,680
And thank you for your time.

1007
01:04:44,680 --> 01:04:47,480
You may be eligible for CLE credit in your state.

1008
01:04:47,480 --> 01:05:13,440
Visit bhba.org slash podcasts for more information.