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today.
Welcome to the audio edition of BHBA's Mediation Training.
In this episode, your host, Matthew Lane of Lane ADR, will guide you through strategies
for successful online mediation.
Let's dive in.
Hello, and welcome to Advanced Dispute Resolution, also known as strategies for successful online
mediation.
I'm exhilarated to be sharing this topic with you and spending time discussing how to maximize
the ability to settle cases over Zoom, Teams, and other online means.
Very briefly, who am I?
I'm a full-time mediator and owner of Lane ADR.
Prior to the pandemic, I was a full-time litigator, both as an assistant U.S. attorney in the Central
District of California.
Also I was an attorney who represented clients in both large and small law firms.
In my capacity as an attorney, I had the good fortune of mediating hundreds of cases as
an advocate, and as a mediator, I have now mediated hundreds of cases as a mediator.
I look forward to discussing this topic with everyone, and let's just start with the big
global idea of why are we here.
We're here because online mediation is no longer the, quote-unquote, alternative.
So obviously before the pandemic, most mediations were conducted in person.
They were traditionally at one location.
Everyone who participated would plan to travel there.
At the very least, it would often require driving across town, driving in traffic, parking,
figuring out where I need to be, how am I going to get lunch, what am I going to do
to make sure I'm comfortable in the mediation.
And obviously, depending on how many people were participating in the mediation, at times
it could include extensive or expensive costs and time associated with mediation.
And so obviously you see the asterisk there on the slide that mediation was developed and
has been a means to more efficiently and more cost effectively resolve disputes.
It still is more cost effective and more efficient than trial, the mitigation, and oftentimes
in primarily arbitration as well.
As the pandemic forced people to rethink things throughout the world, a very noticeable change
in the legal community was the very quick pivot to mediating online.
Personally I was in the midst of the pandemic in 2020 when I decided to open my own mediation
practice and prior to that I mediated a handful of times as an advocate on Zoom, but it became
clear to me that anyone opening a practice at that time needed to be very well versed
in how to mediate online.
And so as I've continued to grow my practice and continue to mediate since then, I have
mediated in person and I still enjoy mediating in person from time to time, but the vast
majority of my cases have been mediated online.
And like many other mediators with whom I've spoken, the success rates continue to not
be necessarily based on how the mediation is conducted, whether it's on Zoom or in person,
but rather the cases that are right for settlement seem to be fine and able to settle online.
And so as we step back from all this debate over in person or Zoom, I want to refocus the
thought that I'm not here to advocate for Zoom replacing in person mediation, but rather
to articulate some examples of how Zoom can encourage people to get their cases settled
in a much more efficient and much more effective manner.
And that's why we talk about this form of advanced dispute resolution, just like when
mediation became the norm as a way to resolve disputes.
Now online mediation has become the norm on how to mediate cases.
And I oftentimes think about this change, this idea going from the panic of the early
days of the pandemic when the courts shut down and people couldn't be in person, people
couldn't be near each other and everyone was confused and concerned and rightfully so,
worried about this state of everything.
But I often think about the words of Albert Einstein, in the midst of every crisis lies
great opportunity.
Obviously, I can't foresee what would have happened to mediation if the pandemic had
not occurred.
But I would argue that as we look back now, years later, we see that the manner in which
and the way that in which cases are mediated is far more advanced than it was prior to
the pandemic.
And so let's start first with the idea of some of the advantages of online mediation.
And then I'll speak of the challenges and then from there we'll talk about a broad look
at the mediation process from start to finish.
And I'll discuss some of the nuances of online mediation that might be somewhat different
than mediating in person.
Also we'll talk about different strategies, different techniques that I have personally
used and have found very helpful when mediating online.
I recognize that a number of people watching this presentation possibly have mediated before,
whether in person, online, many of whom are watching this might have only mediated as
an advocate, sometimes maybe as a neutral, or possibly people watching our clients or
participants in mediation who might be more interested.
This presentation is designed to educate not only those who wish to become a neutral,
but I think it'll also be helpful for advocates and participants of mediation to maybe rethink
some of the things they're doing differently online versus in person and maybe also think
about some strategies that would be helpful for future mediations.
So we start with the idea that as mediation advanced into its online state, there are
certain advantages.
Here I listed a dozen advantages that I came up with, there are probably more.
For example, one of the most common and obvious is that there is an ability now to participate
from anywhere.
Prior to the pandemic, it was not uncommon to have an attorney in Northern California
on one side, an attorney in Southern California, mediator maybe in Orange County or San Diego,
and insurance agent, representative coming from the East Coast, and maybe a client based
in the Midwest.
And in the old days, and I use that with quote unquote old days prior to the pandemic when
in person mediations were the most prevalent, majority of the time people were expected
to travel to the same location.
And oftentimes there would be situations where before the mediation even begins, it's already
difficult to get everyone in the same place at the same time.
So obviously with Zoom, Teams, and other technologies like that, it's much easier.
People can be anywhere in the world, as long as they have a connected device that's connected
to the internet and they can participate in the mediation.
Also it's the flexible scheduling and it makes sure the right people can attend.
In the past, I remember many times as an advocate where they're mediating all day and then 334
in the afternoon, it comes out that one of the other parties or one of the clients in
the other room has a seven o'clock flight and that they have to get back to wherever
they're going by then they have to leave and there's traffic.
And so we have to get the case out of the next hour and a half or else we're done.
We don't have that problem anymore.
People can be there and say they're the whole time.
This obviously saves time, saves money.
And ironically, or not ironically necessarily, but interestingly it negates the conversation
about having a quote unquote neutral location.
The internet's a neutral place for anyone.
It's an option for everyone and there's no debate over who's going to host mediation
or will it be at a neutral location brought by the mediator.
At times, and the hope is that the mediation can be more comfortable for everyone.
People can join from the comfort of their home office or their office or possibly maybe
their hotel room or if they're on vacation, they can join from wherever they have internet.
It doesn't matter, but hopefully people are more comfortable.
It allows for people, the mediator to use breakout rooms more strategically.
When mediating in person, it's very difficult to go into a room and point three people and
say, hey, you come with me.
You two over there.
One over here and facilitate conversations in that manner.
It's possible.
It's just difficult.
But interestingly enough in Zoom, as the mediator who hosts the Zoom meeting, it's relatively
effortless to move people to different rooms or to make sure that conversations are taking
place with the right people in the right rooms.
This also allows for joint sessions, especially in Southern California or in California in
general where joint sessions are not always the norm.
It does allow for the possibility to tailor a joint session to a specific goal.
It gives the mediator the option as well, which is an interesting nuance, to mute everyone.
If you want to have a joint session, you don't want anyone to start advocating for their
client or causing any sort of potential for debate.
You just tell her one at a time, we're going to be muted.
I'm going to say a few words.
I want to talk about this and that.
We can then discuss this narrow issue.
Again, that's much more difficult to do in person.
Likewise, document sharing can become much easier online using the share screen function
or whatever other necessary mean like email.
Now you can share documents in real time.
Right now I'm giving this presentation using the share screen and in my mediation practice,
I quite often use the share screen only with an understanding that the documents I'm looking
at and sharing are not confidential or there's no reason I can't share with that party or
those people in that room.
But also oftentimes the subtlety of sharing a document rather than explaining what's on
it leads people to come to their own conclusions so you don't have to tell them that.
I was fortunate enough to work with a tremendously successful prospective mediator in LA when
I was first starting out and he was kind enough to let me shadow him.
I loved the way in which he had this key document that had not been signed by the one party,
but they were relying on a head, well, in their brief, they talked about this document
or how important it was and it was the reason for the plaintiff's termination of her employment
and it was such a crucial thing.
Then you get through a stack of 300 pages of documents and nobody ever signed it.
There was no way to authenticate the document.
It could have been made the week before and rather than go into the room and show that
client, that party, why they were wrong and why they were going to lose a trial, he let
them talk about the document and slowly scrolled through the other documents until he got to
that point and just left it there and paused and waited.
I sat there just watching, like eating popcorn thinking about how great this was.
And then as the attorney and the client slowly stopped their conversation, stopped their
train of thought, they looked at it and said, oh, it's not signed.
Huh.
Give us a minute.
We'll talk and we'll be right back with you.
That's what they did.
In the case gets settled shortly thereafter, right?
These are the kinds of things that can be done now that were a little more difficult when
we were in person.
Finally on there, I wrote the mirror effect, what I call the mirror effect, it has different
meanings, but what I like about the mirror effect is the fact that most people when they're
on Zoom or Teams, they have the viewpoint of themselves, the camera of themselves, just
like I do here.
I can see myself talking.
And when I see myself talking, it reminds me to at times focus on the words I'm saying
a little more closely and kind of mirror to myself.
You don't lie to yourself in the mirror.
You're not going to say things you wouldn't say otherwise.
Hopefully, if you're forced to look at yourself in the mirror.
I recognize that nothing is perfect.
And I'm not here to say that Zoom or Teams or anything else, save mediation or that this
is the savior of the legal world.
Rather, I hope people realize that Zoom, Teams and other device, other technologies are another
means to progress mediation, but they are not without their own challenges.
So some of the challenges that are commonly understood include the risk that people are
going to be less engaged if they weren't forced to take a flight across the country or to
spend thousands of dollars of travel or to deal with two hours of rush hour traffic.
Or for that matter, they weren't forced to put shoes on, right?
Maybe they're showing up in shorts and a t-shirt.
Maybe there's a risk they aren't going to take it as seriously or they're not going
to be as engaged.
They're at their house or their office where there's a hundred other things going on and
they're not fully there.
Other things like distractions, dogs come in, kids come in, partners and attorneys come
in and out.
And there's always the risk of that.
There's the risk of people phoning it in.
They're just going to, yeah, of course, I'll participate because of the courts that I have
to or because we have a cutoff date, but this case is crazy anyways.
I'm just going to all show up and I'll be made available by phone, right?
Or I'll be available on Zoom if you need me.
There's a risk of that, right?
But that being said, each of these risks, I like to think about how do I turn that challenge
into an opportunity, right?
So the fact that people might be likely to phone it in, I also recognize that means that
in theory, people who are not available can become available if there becomes an authority
issue later on.
Well, great, let's get so-and-so on the phone.
Send them to Zoom link.
Here it is.
Other times people worry about screen fatigue.
That's a real thing.
I get exhausted, full day of mediation going over eight hours sometimes, staring at a screen
and I get exhausted.
I know the participants get exhausted, but what do I do about that?
I use that as an opportunity.
I show up in their room and I said, man, we have been going at this for six hours today.
I'm tired.
My computer screen is tired.
How are you doing?
And the odds are they're tired too.
And that might be the breakthrough you need to get a real conversation about how this
case results.
Other things, people are scared of technology.
You deal with it.
You get a Malink ahead of time.
You tell the attorneys, hey, your client might be a little nervous about technology.
If there's any way I can help, let me know.
There's connection issues at times.
I use it as an advantage as well.
Hey, no matter what happens, your Wi-Fi cuts out.
I'm here.
I'm not going anywhere.
You got me for the whole day, right?
You don't worry about it because I'm here and I got great Wi-Fi.
I get the best Wi-Fi that I can possibly get and it won't cut out just like I won't quit.
The other thing is obviously less comfortable.
There's a risk that people get less comfortable.
There are either maybe, I mean a lot of employment cases and sometimes the plaintiff in the case
might not live in the nicest house or they might have seven other people living with
them or they might not have the best Wi-Fi connection or have nice clothes to wear that
they want to wear.
That's fine.
I try to make them as comfortable as possible.
But I also, if I think that's an issue, we'll discuss that with the attorney representing
them beforehand to make sure that they're comfortable.
To make sure that they understand that this is not a judgment of them or where they live
or where they're calling from.
I also say you can use a Zoom background.
I don't use a Zoom background myself because I want it to be more genuine.
I want people to see where I am.
It's nothing fancy.
I intentionally put a few books on a bookshelf.
I intentionally have a printer right here because at times the metaphor of getting the
printer is something that makes sense in the case.
I have a few pictures that I took, one in Machu Picchu before law school when I was
called myself an adventurer for a few months and decided to go travel through Peru and
volunteering and seeing the country.
It gives me time when I'm looking at it in reverse to think about bigger picture items.
I also have a picture of my, I took all my honeymoon Bora Bora, these beautiful over-the-water
bungalows and how pristine the water was and how we are in the middle of the ocean
with very little security and very little ability to see beyond the horizon and just
the peace and quiet and the ability to remind the participants of mediation that there is
more out there than what might be bothering them in this case.
That being said, I also have a few books.
I don't have every legal book that I have.
I don't need to look like I'm in a library.
Personally, I think too many things can distract, but I intentionally let people see my background,
but I also tell people if you're coming from somewhere you don't want to see the background,
put a zoom picture of the Golden Gate Bridge up, put an ocean picture, put something really
fun and we'll make a joke out of it and we'll move on.
It's fine.
So now we'll spend some time talking through the various phases of mediation and I'll spend
extra attention to how there might be a slight nuance when mediating online as opposed to
in person.
And I'll start with the caveat of that mediation is an art.
And so these five phases are what I understand to be the commonly known and the mediation
in the United States.
And these are the phases that are not necessarily obvious at times.
And I would argue, and I think the best mediators would agree, the mediation is an art and these
are all organic.
And so we start with the idea of convening the mediation.
This is the starting point.
This might include a phone call or an email from an attorney or a client saying, hey,
we've got this issue, we have this case.
We want to see if we can talk about how we get it settled.
It could include a call to my case manager, one of my case managers who says, hey, I have
this person who called me or this attorney who called me.
Can we can we mediate?
Sometimes it's it's very straightforward and it just is how do you get everyone there
and then start the process?
Other times it's more complicated.
We'll talk about that specifically.
We'll also talk about openings.
When we start a mediation, how do we open?
How do we start?
What do we say?
Then we'll focus on communicating.
Every good mediation requires communication.
And then we'll talk about negotiating.
And again, these are not hard and fast things.
I will never say in a mediation, okay, we have finished the communicating phase.
Let's negotiate now.
No, that's awkward.
It's uncomfortable.
It's unnecessary.
But at some point, there might be a conversation about money and there might be a conversation
about how do we get this resolved and what is it going to take?
And at some point, someone might say to me, listen, we're just ready to talk about the
numbers.
We don't want to talk about the faxing or the law.
We just want to get to the bottom of the numbers.
And then somewhere through that process, there will be the closing.
And the closing oftentimes is the most important of the mediation process, assuming that everything
else was done correctly.
Then the closing is where the case resolves and you make sure you have a durable and forcible
agreement that everyone is on board with.
And so what we'll do is we'll talk about each of these phases in turn with a specific focus
on how it might be different in the online mediation context.
First, convening.
Again, in layman's terms, this is getting everyone to the bargaining table.
Just like if you're going to buy a used car, you don't just, you have to get there.
You have to show up and you have to start the process.
So when convening a mediation, we talk about, well, first, who will participate?
When will the mediation be?
Where will it be?
Will it be online?
Will it be in person?
And who needs to be there?
Do you have case deadlines that are affecting how we schedule the mediation?
I'm fortunate enough to have excellent case managers who do a lot of this background work
without even thinking of it on a regular basis.
They get contacted by attorneys or other staff and they'll have the answers ahead of time.
They know my schedule.
They know what's going on and they know with whom I've worked usually and we can talk about
is there a conflict or can we mediate this case?
So what I will do usually is checking with the attorneys and confirm the case deadlines
are going to be okay with this date.
There's no additional discovery needed.
If we're pre-litigation, okay, that's great.
Are you going to share documents ahead of time?
Is there any information you would need or your client would need before the mediation
takes place?
Is there any information you want the other side to know before the mediation takes place?
In the pre-litiation context that oftentimes is no, but at times it might be really important.
The goal of convening the mediation is a few different things, one of which is to ensure
confidence in both me as the mediator, but also the process of mediation.
So I look at mediation generally here and this is both in person or online.
We have to make sure that everyone is aware of that process and is willing to participate
in that process and has that confidence in the media and the process.
At that time, if the mediation will take place online, then I'll ask, does everyone have
familiarity with online mediation?
If you have clients who have never mediated online, what are they nervous about?
What are they concerned about?
How are they at using a computer?
Do they have any questions?
What can I help with?
Are there any special issues?
For example, does the plaintiff in the case have three kids who are going to be there
in and out of the room the whole time?
Do they need, are they a newborn mother who has to be nursing in between sessions and
the mediation?
Whatever it happens to be, I like to know that in the convening stage before we even
get there so I can make sure everyone's taken care of.
And if there's any reluctance, whether to mediate at all or to mediate online, I try
to address those head on.
I try to make sure that everyone knows we're there for the right reasons with the same
goals of getting the case out.
In the convening stage as a mediator, and so this goes equally for those who want to
be a mediator, who are mediators or who are either advocates or clients or participants
in mediation.
I often think back to Ben Franklin who said, by failing to prepare, you are preparing to
fail.
I love that quote because to me, the choice is yours to make.
And if you don't make a choice, you have made that choice.
Right?
And it's the same thing in mediation.
We are here to get the case settled.
And if the case is not settled and you are saying you don't want to settle it for whatever
reason, then that's a choice, right?
To do nothing is still a choice and to not prepare for mediation is preparing to fail.
In my practice, I spend significant time preparing for mediation.
It's not only focused on the law and the facts, but also the people, those who are involved.
I understand who's going to be there, what their goals might be, what they might approach
a certain set of facts or issues with.
So preparations is huge.
And when I talk about preparation, I talk about as a mediator, does everyone have mediation
statements?
Have they submitted them on time?
Have they submitted key evidence?
I read them front and back multiple times.
I read them with the idea that I also think about not only what's in the mediation statement,
but also what's not there.
What have they not said?
I think about the relationships of those who are involved in the dispute and employment
context, obviously, former employees versus current employees.
Those are different relationships at times.
I also hold pre-mediation calls and almost all my mediations.
And I make them informal.
I invite the attorneys separately to talk to me.
And in the 10 to 15 minute phone call, I will oftentimes learn so much that we'll set the
mediation in the correct trajectory before we even get started.
Oftentimes it's questions about things like the relationships between the attorneys or
the parties or whatever it happens to be.
What concerns does everyone have?
What are we thinking about in terms of the goals here?
I also, obviously, I know the legal authority like the back of my hand, but if there's any
certain unique thing, I might double check that.
And then I also want to know the history of the dispute.
Why are we here?
Special considerations when we're mediating online.
Again, my office, Sarah, I have this set up in this way because I think this is the way
that I would want mediator to approach.
I have a standing desk.
Goes up and down if I need it to.
But I keep it up most of the time because, number one, my health is my wealth, right?
I want to be healthy.
I want to be moving around.
I don't like to be stagnant in anything in life, but not necessarily in work as well.
But there are times where I might be having a difficult conversation and I want to appear
in such a way that it makes sense to sit down.
I also take my jacket off from time to time.
If it's a day that I think it's important to relax a little bit or to show them that
I'm working hard to take my jacket off, it might take my tie off.
It just depends.
I use a real background, but I know plenty of mediators and attorneys who love to use
a Zoom background.
Also background noises.
I have a dog who sometimes wants to come in and wants to go to the bathroom or wants
to go outside, whatever it is.
If that happens, sometimes participants also have a dog.
We'll talk about that.
Zoom links, if you have a case manager or if you do it yourself, make sure you send the
right Zoom link out to everyone and make sure that it's something that everyone can click
on and get right there.
I also like to know and I like to help out.
Will the parties be physically with the attorneys?
Are we going to have to worry about the attorneys in one place and the parties somewhere else
and connectivity issues?
Will there be one conference room with four attorneys and three clients?
If so, how are we going to approach that?
What if we have to have separate conversations?
Break out rooms.
I always set up and encourage mediators to set up more breakout rooms than you think you
will need.
There's no reason not to.
If you have 17 breakout rooms there and you only use four, then nobody cares.
They'll never know.
It doesn't matter.
But once on Zoom, once you set up a breakout room, it's difficult and not impossible to
add more.
I also think about who is going to be in what room.
Especially in my experience, I don't mediate with joint sessions as a de facto.
I use joint sessions sparingly when it makes sense for the dispute.
Those only are times where I know the people who are in that joint room are able to and
willing to have a conversation without making it argumentative and for a specific goal.
I set up the breakout rooms and I manually put people in the room with their attorneys
in the correct room.
If there's ever a doubt, if someone shows up and just says, iPhone number two, I go and
ask, who are you?
You're welcome.
Who are you?
How can I help you?
Where are you going?
I have heard horror stories from attorney clients of mine who had mediators that accidentally
put the wrong people in the wrong room and didn't realize it until too late.
One example that comes to mind is that there was a pre-litigation matter where the defendant
had insurance involved, but they didn't want the plaintiff and the plaintiff's attorney
to know that because it was pre-litigation and it was a situation where they wanted to
try to get the case settled before it went to litigation.
They were willing to put lots more money on the table because there was insurance, but
at the same time, they didn't want the fear for them was that if the plaintiff, the plaintiff's
attorney knew that there was insurance involved, then the settlement demand would increase
threefold or whatever.
That mediator wasn't paying attention, didn't know if someone was and put them in the plaintiff's
room.
Turns out that was the insurance carrier representative.
I need you to say, the client told me that in one of my first mediations with that client
because they were explaining why they were on the lookout for different mediators.
I encourage everyone to be very careful about who is going into which room.
Finally, when mediating online, I always have the mediation briefs and the exhibits from
all parties ready to go.
I have them saved on my desktop or in a folder or whatever it is so that if during the mediation
at any point I need to refer to anything or share a screen or whatever it happens to be,
I don't waste anyone's time trying to find that.
It's all ready to go.
That same token I mentioned earlier, I don't share things unless it is not confidential.
If it's confidential, it doesn't want to be shared, whether it's a document or there's
information, then you have to think about what you're doing and make sure you don't run
afoul of that confidence.
Speaking of confidentiality, I'm not going into great length on that.
I could give a whole hour-long presentation or longer about confidentiality, ethics, etc.
about mediation, but it is worth remembering, whether in person or online, that mediation
confidentiality means that no evidence or anything said in the mediation is admissible
or subject to discovery.
It doesn't necessarily mean that everything told to a mediator in one room is not allowed
to be told to the people in the other room.
There's attorneys and their clients misunderstand that and think, well, because you're telling
a mediator something, they're not allowed to tell anyone that ever.
No, it just means that the things that are said in mediation cannot become admissible
or subject to discovery.
Also, it's worth keeping in mind there are limits to confidentiality.
Again, I won't go into heavy detail here.
Read the rules yourselves.
They're constantly evolving, but it admissible doesn't necessarily mean that what's discussed
in a private meeting cannot be disclosed in the other room.
Also, remember, if you're doing a mandatory settlement conference, and I volunteer for
those from time to time when I'm able to, that doesn't mean that it's a mediation.
A mandatory settlement conference is specifically a creature of statute.
In that statute, it's specifically said that we do not have mediation confidentiality.
It's amazing to me how many attorneys, very intelligent, very respectful attorneys and
clients that don't fully understand the difference between a mandatory settlement conference
and a mediation.
That being said, to step back from it all, when I'm mediating or when I'm conducting
a settlement conference, I always make sure to ask the parties if there's anything that
they've shared with me, documentarity, or verbally that they want me to keep in confidence.
I recognize that my reputation, my good name is based on my ability to keep confidential
things that are required to or requested to be held in confidence.
But it's worth being aware of these issues.
One more thing with confidentiality and the online context.
I personally use a mediation agreement before private mediation.
I have made sure that all the parties and everyone participating reads it, has it well
in advance, and signs it to confirm that they are willing to proceed in the manner where
it is a confidential mediation.
In that, I have tweaked my mediation agreement to include specific provisions related to
online mediations.
I encourage those who use mediation agreements as a mediator to do the same.
For example, this is not exhaustive, but it's clear that you cannot record the mediation.
I don't want someone recording my mediation.
I don't want people coming later on, trying to use it as evidence against another party.
Another issue is being cognizant of others nearby who might overhear.
If someone's a client or the attorney's at home and their spouse or significant other,
their family, their friends happen to be in the room next door and they come in and out
and they might overhear things, I don't know how thin walls are in the room in which the
participants are mediating, but it's worth being cognizant of that.
Also in the same vein, be wary of friends or family who appear midway through mediation,
just like in the in-person context when the person, maybe oftentimes it's a client, a
plaintiff or one of the defendants or something, gets a phone call from their spouse, significant
other, friend who's an attorney, whatever it happens to be, all of a sudden has a different
opinion than the attorney representing that party.
They're getting too little or spending too much or they're offering too much, whatever
it happens to be.
I'm wary of that because it happens from time to time.
Also again, ensure people are never put in the wrong room.
I cannot emphasize enough how important it is to take that extra second to confirm that
you understand that iPhone number two is so and so or that the name on the Zoom link that
pops up is the correct person.
Okay, now onto the second phase of mediation, the opening.
So there's different thoughts from mediators in general, whether in person or online on
the opening.
The textbook way in which I was trained as a mediator is to conduct an opening number
one and to conduct an opening in such a way as to welcome everyone, to give them that
confidence that you are the mediator, to help them get their case resolved and the confidence
that this is the process and the day in which to resolve this dispute.
And to do so in such a way that brings everyone to the same table to begin the conversations
that will work towards resolving the case.
In the opening, I try to show optimism with an understanding of the goals for the mediation,
getting the case resolved, waking up tomorrow knowing that this matter is no longer affecting
your daily life, that this lawsuit will not need to proceed beyond today.
And then I have the confidence that I have done this hundreds of times before and I will
do it hundreds and thousands of times going forward.
And I have the confidence to help you in this path to get this case resolved.
And I commit it again, I'm not sitting down, I will be scanning up all day and I might
be running back and forth and I'm here running the marathon committed to getting this case
settled or helping you get this case settled.
And all with the goal of connection, of connecting with the attorneys, the clients and ensuring
that when difficult conversations are to take place, they're not coming from me individually,
but they're coming with my understanding, my facilitation and evaluation of things that
brings it in the most positive light that the connections that we've built during this
process allow them to make their informed decisions.
And so when I first talked about opening, I said, number one, whether you do an opening
and whether two, the way I do the opening question of whether to do an opening obviously
is one that makes it part of the art of mediation.
I know some mediators who work with similar attorneys, they've worked with hundreds of
times before or dozens of times before, they wouldn't dream of wasting their time with
an opening.
It really depends on the case.
When I work with attorneys with whom I've worked multiple times, I come in there and
I say, good morning, how are your kids?
How is everything else?
And we have a conversation and it's a much less formal way to start that process.
But when I know that the client, maybe I don't know the client personally or maybe the client
might be someone with whom I have it mediated before, then I'll make sure to include those
important issues in the opening.
And the opening might be something where they don't even realize this is an opening.
Again, it's a nuance that allows the phases to be more organic.
Should I walk into a mediation and go up and tap my microphone and say, okay, I will begin
with my opening.
Good morning, everyone.
We are here.
No, of course not.
What a waste of everyone's time.
I've lost at least half the people instantly by doing that.
And so I want to kind of set back and make sure everyone thinks about the opening, not
in terms of a speech given to just bore everyone and get it off your chest, but really an opportunity
to welcome everyone and instill the confidence this is the case that's going to settle today.
I'm mediating online some things to take into account are that again, I want everyone to
feel as welcome as if they just came into my office, my home, and I'm offering them
drinks, food, whatever it happens to be.
And I want everyone to feel welcome regardless of what's behind their screen, regardless
of where they're located or whether they like computers or not.
I don't ignore anyone.
If there's someone who hasn't spoken in the beginning part, I might make the second
time in that room an opportunity to say, Hey, how are you doing so and so?
You know, or I see you're on mute is there anything you want to add?
Right?
Because until I speak to everyone, I don't know what they're thinking.
I also don't know who's really making decisions when I'm not there until I find that out.
Again, the same same goal of explaining why we're there, what the goals are, the goals
get the case settled today, so everyone can move on from today.
And it's an opportunity to start listening and observing.
So at times there are attorneys or clients who I'll get two words out and already they're
jumping right into the facts.
And they're so upset about this case or whatever it happens to be.
I'm not going to cut them off and tell them, wait, I got to do my opening first, then you
can talk.
Of course not.
I'm going to let them tell me everything that's important to them, get it off their chest,
and we'll go from there.
And I do so with what I call relaxed formality, right?
I dress formally.
I work formally.
I have a very strategic approach to things, but at the same time I want people to be comfortable
and to share with me and to explore things with me in a relaxed manner.
Third phase.
Again, this is an organic situation.
This happens oftentimes in the same conversation of the opening.
It's communicating.
And my goal here is threefold.
To connect, to reflect, and to dissect.
And I use the word connection a lot, but it's intentional because my experience is that
there are certain percentages of cases that are just going to get settled no matter what
I do or don't do as long as I don't mess it up, right?
And I think most mediators won't admit that.
But I admit it because there are some cases that they just need to get settled.
Everyone wants to get the case settled.
Plain if has one dollar amount in mind or arranged.
Patience has a dollar amount arranged in mind, and as long as the zone of potential agreement
is big enough and close enough, then I have to go out of my way to try to get the case
not settled.
So there's a percentage of those cases, right?
But I'm looking for the cases that might have a chance of settling, but people aren't
sure whether they're willing to fully commit yet or whether today's the day or whether
this is really a informed decision that they want to make.
And so that's what I try to find the X factor, the ability to get cases settled when others
might think it's not the day or not the case to be settled.
And the connection is how I found in a genuine way.
I genuinely enjoy people.
I enjoy learning about people.
But the connection is oftentimes the difference between a case that settles or one that just
continues to go through litigation because just wasn't the time wasn't right.
I also look at the reflection of why we're there, whether it's through the story of the
plaintiff, the defense or whomever it is that's there, reflecting on what they saw, what are
their stories, and why are they part of this multiple story situation that led us to here.
And then as I go through, I use the word dissect, others might use an evaluative stance, but
I look to dissect kind of the factual and legal issues at play and to do it in such
a way where I'm not going to be banging on my table, explain to people why they're going
to lose a trial and why they should either take less money or pay more, but in such a
way as to draw inferences and conclusions from the parties or from the attorneys into
risks that might be there and an evaluation.
So do an evaluation of the issues without specifically telling them this is what I'm
doing.
And so part of the communication, again, I'll leave there is looking at what's verbal and
nonverbal, what's not being said in addition to what is being said.
And I know it's ironic that I'm speaking for an hour here, but in my mediation practice,
I listen more than I talk.
And I do so because I know how this can play out, I've already written the book in my head
of how this can play out.
I want to see how it does play out based on the actors in front of me.
I want them to make their own conclusions and to tell me what they want to tell them
so that I can understand their needs and help them to get their case out.
Very briefly, in the world of communication, and this is more directed to attorneys to
remember the duties of truth and truthfulness and candor.
We can't make a, lawyers cannot knowingly make a false statement of material factor
law, right?
But there's not an affirmative duty to inform an opposing party of relevant facts.
As a mediator, this comes up from time to time because many mediators are attorneys
and the rules do apply, but sometimes parties will ask me a direct question that I've been
specifically told not to answer by the other side for confidential reasons or whatever.
How to address that, whether it's with a question, whether it's with a, what, what do you need
that information for?
It depends, right?
But something to keep in mind.
When mediating online, other things are communicating the manner in which you approach your computer
looking at the camera, stand aside or having your chin down here, whatever it happens to
be, um, affects oftentimes how people perceive you.
And so I'm very cognizant of standing full attention.
I don't look down on my phone.
I'm not here on my other computer doing something.
I direct my attention to the person speaking and I constantly am keeping an eye on others
if there are others in the room, but I recognize that it's most important to connect and to
focus on the people that are right there.
Again, connection is huge.
And I know the sales mantra of always be closing, I would switch that somewhat to always be
connecting, right?
Every little thing.
When a dog comes into someone's room or a kid runs in or there's noise in the background,
oh, I hear it's garbage day, whatever it is, that's another opportunity to connect with
people.
Um, also, I, from time to time, check in with everyone.
How are we doing?
Are you good?
Did you get lunch?
Are you eating yet?
Do you need a snack?
Are you hungry?
You need, you need coffee.
Uh, same thing with wifi computer issues.
Um, if your wifi cuts out, I'm still here.
That's a beautiful thing to say that says more than just I have good wifi.
It says I'm committed to the process and I'm not going anywhere.
I also intentionally just looked down at my phone, but I did such because when I'm mediating,
I'm fully here.
I'm not answering phone calls.
I'm not texting people unless it's intentional.
It's part of the case.
Um, but communication is huge.
Now almost to the, to the meat here, we're getting to the negotiated.
This is where mediators help to broker the deal.
And I have in the corner there timing is everything.
You go too soon.
You start talking about money too soon.
You start talking about, well, let's get this case settled too soon.
You run the risk of offending people and making them think you didn't listen to them.
And so there's a definite, uh, nuance to knowing when to, to talk money and when to negotiate
and when to, you know, it depends on has there been an opening demand?
Has there been an opening offer where we in the negotiation before you got to mediation,
whatever it happens to be.
And as the negotiation takes place, whether in person or online, we talk about interests,
not positions.
Okay.
So they, they demand an X, but what do they really want?
They want to get this case settled because they want to move on with their life, whatever
it happens to be.
Um, at times in the negotiation process, I'll be tired.
So I know other people are tired.
They're exhausted.
They're frustrated.
I addressed that head on and I encourage you to do the same.
Man, this has been a long day.
Wouldn't this be nice if we didn't have, if you didn't have to worry about these issues
anymore?
What if today was the day where you get to put this all behind you?
Do you think trial is going to be easy?
Do you think trial is going to be fun?
Whatever it happens to be and be strategic as a mediator.
It's amazing to me how important it is to plan what my goal of a certain conversation
is and then to go and have that conversation.
And if my goal is just to talk for a little bit and then get a number out of them or whatever
it happens to be, even so be it.
But to strategize, to really think about what the goal is and how I'm going to accomplish
that has been so sick, helped me to be so successful in mediations.
During the timing of certain things, concerning and then also controlling my emotions.
We might have a conversation with someone in one room and people are screaming and there's
tears and it's a complete upsetting situation.
They're screaming at everyone.
I come back, I leave the room, I take a break.
I always have trail mix here, eat a couple of nuts.
I always have coffee or tea, water, I take a break and then I go back into the other
room with my strategic conversation ready.
If I bring the energy from one room to the other room, I only do that when it's intentional.
It will not serve everyone.
If I walk in the room and say, what is going on in that room?
There are disaster.
Everyone's a mess.
And I add panic to this room.
No, but it wouldn't do anyone good.
So control your emotions, be strategic and when mediating online, again, take breaks
between the rooms.
Take care of yourself.
Trail mix is how I do it.
I remind people in mediation to take care of themselves.
I also look at them and say, well, I'm going to be in the next room for a while.
While I'm there, can you help me to understand this issue or these documents or can you find
this for me?
Or while I'm there, why don't you get lunch?
Why don't you go order something?
Why don't you go get a cup of coffee and then I'll come back?
Come to use the restroom, whatever it happens to be.
And then I check in strategically.
There comes times in some mediations where one party needs additional time.
They're talking to assurance adjusters far away or they're dealing with an issue that
they need to work through.
And I don't want the people in the other room to think that I'm just ignoring them.
When I was an advocate, I would sometimes hear mediators down the hall who are talking
to their golf buddies figuring out what they're going to do on the weekend.
And I always got frustrated by that because I thought, here I am.
I came all this way.
I'm here to get the case settled and my clients are paying me.
They're paying the mediator and the mediator seems like they're working on what they're
going to do for golf this weekend.
I make sure I check in with people and say, hey, just so you know, I don't have the number
yet.
We're working on it.
There's a lot going on there.
I'll tell you about it a little bit.
But I want to make sure you guys are good and I'll be back as soon as possible.
Right there.
15 seconds.
Everyone knows they're being taken care of and they're not fuming because they think
I'm out talking to my golf buddies to figure out what we're going to do this weekend or
what tee time will be.
Finally, the reason we're all here closing, how do you seal the deal?
This is where we have to decide how we're going to get people over possibly an impasse
and towards the goal of the printer.
The goal is to get the case settled, to seal the deal, to get the result that everyone's
here to obtain and how do we do that?
In person and online, relatively the same, but just keeping in mind ways to deal with
impasse.
There are ways to take a break.
Hey, I'm going to go to the room right now, take a break.
I know we're stressed out, whatever.
I love to use the term that I've coined myself, which is that we're getting dangerously close
to settling.
We might be hundreds of thousands of dollars apart with the most recent offers and counteroffers,
but I will tell people and I will signal to them, we're getting dangerously close.
Based on the information I have from both rooms or all the rooms, we are working towards
the correct goal of getting this matter resolved.
So let's keep down that path and let's just figure out a way.
Everyone's here for the same goal.
Everyone wants to get it settled and I think we're darn close, so let's figure out how.
And use time on your side.
If you have a mediation schedule for the full day, that's one thing.
If you've only done a half day, say, listen, it's been three and a half hours.
I think everyone's ready just to get there, to go to the finish line.
Everybody online, number one, and again, this goes back to my thought that some cases are
going to settle regardless of how excellent or terrible the mediator happens to be as
long as they don't ruin it.
So don't get in the way of a good settlement.
That's going that way and if it's going to go that way, then just keep everyone going
that way.
Acknowledge Zoom fatigue.
Again, by the end of the day, I don't want people to leave the mediation exhausted and
feeling like we didn't accomplish anything if the case doesn't settle.
I want people to go and to be ready to settle the case and if you're tired, we use that
time, acknowledge the exhaustion and say, great, let's get this case settled so you
don't have to deal with ever again.
Again, breakout rooms can be helpful, joint sessions, if they're tailored to an effective
goal can be very helpful.
And then this is really important.
Know the value of offline conversations.
This is something that was done in person and can be done in person, but I think it's
done easier and more effectively oftentimes online.
By example, I had a case recently where in each breakout session with the attorney and
his client, he was just an attorney was advocating saying, we're going to take this to trial.
There's no way.
This is crazy.
We're going to counter sue, blah, blah, blah.
And then I text him and say, can we talk offline?
So we do.
We have a phone call separately.
He's not in the same room with his client.
So it's easy to do.
And he calls me and I say, hey, what's really going on?
I mean, because you know what the law is in these facts, am I missing something?
What's going on?
And I say it politely because I'm not here to offend anyone.
I'm not here to, you know, if I enraged him, then I've lost him and I've lost his client
and all that.
And he laughs and he says, yep, you saw it too.
Well, we have these issues with the insurance and there's a potential malpractice claim outside
these other attorneys who were representing my client before me.
And you know what?
It's a disaster.
But we have no choice but to fight because I don't think you're ever going to settle for
where we want to sell.
Bam.
Case hinged on that.
And with that information, we go back, get the case settled shortly thereafter.
Right.
And that was so easy.
I didn't have to go into a room and say, hey, can I talk to you separately down the hall?
Make it a big deal.
He probably went back and told his client just so you know, I talked to the mediator,
but it changed the tenor of everything.
And so when I went back into his room and he's still pounding the table and advocating
for his client, I know what he just told me.
And I understand that the needs and interests, since we can get the case settled.
So embrace the silences, decide conversations and above all humanity.
It really is one of those things.
And when people see that you're a human, you're generally interested in, and their story and
helping them to resolve their disputes, it's amazing what they will show you and tell you
that will help you get to that goal.
One other suggestion for breaking an impasse is when in doubt sing.
I'm not going to horrify all of you by singing any of these songs, but these eight songs
all come to mind at times and many more during the Asian process.
And what I do is I don't sing them, but I might just quote songs, quote a movie, quote
something at some point.
Instead of telling someone, hey, this is the best you're going to get, you're welcome
and you better just grab it and run.
I say, hey, you know Steve Miller band said take the money and run.
Or Ken Rogers love to say, you got no one to hold them, no one to fold them, no one
to walk away, no one to run.
Right, it gets a laugh and usually if it's done correctly, can get everyone to light
in the mood and kind of set the perspective of why we're here and why it makes sense for
them to do what we're talking about.
Rolling Stones are great as well.
Any other things like that, these are helpful ways to kind of switch the narrative at times
or change the perspective.
And finally the goal.
The reason we're all mediators and is to help people get the case subtle.
And just because the case settles doesn't mean we are supposed to let up and just relax
and just hop the champagne just yet.
Right.
Case settles.
Everyone's agreed on the key terms.
What do we do from there?
Do we?
And this is specifically to online, right?
In person, sometimes I had the experience as an advocate where great, someone's going
to write out a term sheet.
Here's the three, four, five key terms and we're going to, everyone's going to sign.
We're done.
Other times I was there until midnight because the parties or the attorneys wanted to get
the actual long form settled in agreement signed by everyone before you walked out the
door.
That's fine too.
Online, what do we do?
Sometimes we look at confirming email.
Does the mediator send it out?
Does defense counsel, plaintiffs counsel?
Who sends it out?
Do you copy the mediator?
How do we know?
What if there's three key terms and they haven't talked about the non-monetary issues or other
things?
Keep these things in mind and don't be surprised when a case settles and you haven't thought
these through.
The worst situation is being there and saying, well, I don't know.
I don't know who's going to draft the long form settlement agreement.
We haven't even thought of it.
These are conversations that could have been held the week before and all you have to do
is fill in the dollar sign.
If it's possible to have the attorneys share drafts of a settlement agreement before mediation,
that's wonderful.
The reality is it's not done as often as it should be in my experience, but at the same
time, if it is done in the correct manner where all we need to do is fill in the number,
it already helps people psychologically get there before they even show up in person or
online.
Same thing as mediators, we have been trained.
Most of us have been trained.
Don't be the ones to drop the settlement agreement for them.
Whether we send the confirming email, here's my understanding of what agreement was reached
today.
I think that's fine.
Sometimes I worry if the attorneys send it to each other, it's not going to be worded
the correct way and they haven't been in the same room.
I've been in each room all day, so it just depends.
Then we talk about going back here and forcibility.
I'm not going to read the whole California Code of Civil Procedure 664.6, especially
because coming January 1st, 2025, it's going to change.
When this recording is up on the Beverly Hills Bar Association website, I don't know when
you're going to see it.
If it's changed, then go ahead and look that up because I didn't put the new role in yet.
For our purposes, a few years past, the rules were changed that attorneys who represent
the party can sign a settlement agreement on the party's behalf.
Obviously, there's caveats there for civil harassment actions, et cetera.
My takeaway from this all is that I don't want to ever be in a situation where I have
sat by while people think they're signing an unenforceable agreement.
I don't want a year from now or six months from now a phone call or an email saying,
hey, remember you helped us mediate that case?
Yeah, one party changed their mind and we can't even enforce it because we didn't send
the correct term sheet around.
Just keep aware of this.
Same thing here, miscibility of a settlement agreement.
Something to keep in mind, the rules change.
They're constantly being updated, but currently as of September in 2024, this is the evidentiary
role on that regard.
And finally, there are situations in which not every case will settle.
And I hate to say it.
I have some mediators I love who say I have helped people to settle 100% of the cases
that have been informed in front of me.
And then you wait for a second and they say, except for the ones where somebody else messed
it up.
Not every case will settle on the first day or the first attempt at mediation.
It's just natural.
But what I think the best mediators do that separates them from others is they don't give
up.
And so if I ever have a case that didn't settle, maybe it's pre-illegation, maybe it's something
that just wasn't the right time.
The right people weren't there.
We had different expectations.
We didn't have enough discovery.
Then I follow up and I make sure that whatever the issue was, I find out when it will be
resolved and determining what can I do to help forward that goal?
How can I help to make sure that the case will be resolved?
And I encourage everyone to do that should you become a neutral as well.
That being said, I appreciate all of your time.
I thank you.
And as a final thought, I will say I personally have found the transition to mediation incredibly
fulfilling.
I've had a lifetime goal of mine from when I was a young kid, seeing my four older siblings
and their disputes and watching them interact with my parents almost as neutrals at times.
I know this is the path for me.
I will say it's not for everyone.
But for those of you that decide to go down this path, I wish you all the best.
And I hope, should you see this presentation and want to drop me a line, here's my email
address matlainadr.com.
There's my website.
Love to hear from you.
I wish you all the best in your careers, no matter what you do.
And thank you for your time.
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