1 00:00:00,000 --> 00:00:05,040 Support for this episode comes from Lawyers Mutual Insurance Company, who have proudly 2 00:00:05,040 --> 00:00:11,240 provided California attorneys with specialized professional liability coverage for over 45 3 00:00:11,240 --> 00:00:12,480 years. 4 00:00:12,480 --> 00:00:18,280 And did you know? Lawyers Mutual offers competitive specialty rates for their members who act 5 00:00:18,280 --> 00:00:22,880 as a neutral, either on a full-time or part-time basis. 6 00:00:22,880 --> 00:00:28,640 So, as part of their arbitration mediation specialty program, all members receive an 7 00:00:28,640 --> 00:00:33,560 individualized premium based on the areas of practice their firm handles. 8 00:00:33,560 --> 00:00:37,800 This allows Lawyers Mutual to adjust rates annually, and as you build your mediation 9 00:00:37,800 --> 00:00:43,400 practice, your premium will reflect the portion of your time spent working as a neutral. 10 00:00:43,400 --> 00:00:49,000 To learn more about how this great program can benefit your firm, visit LawyersMutual.com 11 00:00:49,000 --> 00:00:50,000 today. 12 00:00:50,000 --> 00:01:00,860 Welcome to the audio edition of BHBA's Mediation Training. 13 00:01:00,860 --> 00:01:05,900 In this episode, your host, Sylvia Mayer of S. Mayer Law PLLC, will guide you through 14 00:01:05,900 --> 00:01:08,520 strategies for mediation readiness. 15 00:01:08,520 --> 00:01:09,520 Let's dive in. 16 00:01:09,520 --> 00:01:14,080 Hi, everybody. My name is Sylvia Mayer with S. Mayer Law. 17 00:01:14,080 --> 00:01:18,880 I'm an arbitrator, mediator, and attorney located in Houston, Texas. 18 00:01:18,880 --> 00:01:23,080 I serve as a neutral in disputes all around the country. 19 00:01:23,080 --> 00:01:32,200 Today, we are going to talk about a mediator's steps to prep strategies for mediation readiness. 20 00:01:32,200 --> 00:01:36,680 So let's start with the most obvious. 21 00:01:36,680 --> 00:01:39,240 We are here to talk about mediation. 22 00:01:39,240 --> 00:01:40,240 I'm a mediator. 23 00:01:40,240 --> 00:01:41,360 I'm an arbitrator. 24 00:01:41,360 --> 00:01:42,640 I'm an attorney. 25 00:01:42,640 --> 00:01:49,920 I am only talking today about mediation. 26 00:01:49,920 --> 00:01:55,640 And in that context, mediation involves three things. 27 00:01:55,640 --> 00:01:59,520 Plan, prepare, perform. 28 00:01:59,520 --> 00:02:01,440 We're going to talk about plan and prepare. 29 00:02:01,440 --> 00:02:07,440 I'm combining those into the steps to prep for a mediation. 30 00:02:07,440 --> 00:02:13,040 The performance part is when you're actually in the mediation, and we're not really going 31 00:02:13,040 --> 00:02:20,280 to touch on that today other than tips for preparing in advance for when you're in the 32 00:02:20,280 --> 00:02:25,280 actual mediation. 33 00:02:25,280 --> 00:02:32,440 So here's the basic underlying theme to this entire presentation. 34 00:02:32,440 --> 00:02:38,640 By failing to prepare, you are preparing to fail. 35 00:02:38,640 --> 00:02:40,520 Benjamin Franklin. 36 00:02:40,520 --> 00:02:47,160 It is really important as a mediator that we show up to the mediation prepared. 37 00:02:47,160 --> 00:02:49,680 And so that's what we're going to talk about. 38 00:02:49,680 --> 00:02:53,640 All right, so let's start first with an overview. 39 00:02:53,640 --> 00:02:57,680 I'll talk to you about what we're going to talk about. 40 00:02:57,680 --> 00:03:01,680 And then we'll dive right in. 41 00:03:01,680 --> 00:03:05,960 So here's what we're going to cover in our discussion today. 42 00:03:05,960 --> 00:03:08,760 First we're going to talk about some caveats. 43 00:03:08,760 --> 00:03:15,200 Then we're going to talk brass tacks, the basics of preparing for a mediation. 44 00:03:15,200 --> 00:03:20,720 We'll talk about hitting the books, actually diving in and getting prepared. 45 00:03:20,720 --> 00:03:28,240 We'll talk about being all ears, listening and learning as you prepare for the mediation. 46 00:03:28,240 --> 00:03:33,840 And doing your homework so you've taken the time to think about everything before you 47 00:03:33,840 --> 00:03:36,040 get to the mediation. 48 00:03:36,040 --> 00:03:39,920 And then we'll wrap it up at the end. 49 00:03:39,920 --> 00:03:46,760 All right, so here we go. 50 00:03:46,760 --> 00:03:48,260 Caveat. 51 00:03:48,260 --> 00:03:56,360 So it is really important that you understand that nothing about mediation is one size fits 52 00:03:56,360 --> 00:03:58,040 all. 53 00:03:58,040 --> 00:04:00,840 Every mediation is unique. 54 00:04:00,840 --> 00:04:06,880 And that means that every mediation preparation is also unique. 55 00:04:06,880 --> 00:04:12,240 Some of it is unique to the particular parties, the particular case. 56 00:04:12,240 --> 00:04:21,480 But as a general rule, it is always important to understand the framework within which you 57 00:04:21,480 --> 00:04:23,760 are mediating. 58 00:04:23,760 --> 00:04:28,040 I'm going to talk today based on my experience as a mediator. 59 00:04:28,040 --> 00:04:35,760 But you need to understand that how you prepare and how you plan and sometimes how you conduct 60 00:04:35,760 --> 00:04:45,920 the mediation may be different based on regional differences, practice area differences, specific 61 00:04:45,920 --> 00:04:50,560 court differences, subject matter differences. 62 00:04:50,560 --> 00:04:58,800 It's really important to make sure that you have taken the time to understand local practice, 63 00:04:58,800 --> 00:05:04,560 any local rules, any court orders that govern your mediation. 64 00:05:04,560 --> 00:05:12,000 It's important to understand regional differences and ethical guidelines associated with being 65 00:05:12,000 --> 00:05:15,280 a mediator in that area. 66 00:05:15,280 --> 00:05:22,280 And it's also important to realize that I'm sharing with you my experience, which is based 67 00:05:22,280 --> 00:05:26,080 on my style of being a mediator. 68 00:05:26,080 --> 00:05:29,000 And everybody needs to be authentic. 69 00:05:29,000 --> 00:05:33,520 So what works for me may not work for everyone. 70 00:05:33,520 --> 00:05:35,520 Everyone's style is different. 71 00:05:35,520 --> 00:05:42,960 So take from today's discussion the things that work for you in your region, in your 72 00:05:42,960 --> 00:05:52,280 practice area, in your jurisdiction, and that is authentic to how you engage with others. 73 00:05:52,280 --> 00:05:56,880 And I know I already said this, but it is so critically important. 74 00:05:56,880 --> 00:06:04,360 Always make sure to check any applicable court orders or court rules associated with your 75 00:06:04,360 --> 00:06:06,880 mediation. 76 00:06:06,880 --> 00:06:09,680 All right. 77 00:06:09,680 --> 00:06:12,440 So now we're on to the next topic. 78 00:06:12,440 --> 00:06:13,840 That's tax. 79 00:06:13,840 --> 00:06:19,840 Let's talk about the basics of planning for a mediation. 80 00:06:19,840 --> 00:06:23,680 You have been selected or appointed to serve as mediator. 81 00:06:23,680 --> 00:06:24,680 Now what? 82 00:06:24,680 --> 00:06:27,960 That's what we're going to talk about. 83 00:06:27,960 --> 00:06:36,920 So when we're talking about the basics of mediation and preparation and planning, we 84 00:06:36,920 --> 00:06:41,640 have to start with the most fundamental basics. 85 00:06:41,640 --> 00:06:45,320 What is the format for the mediation? 86 00:06:45,320 --> 00:06:47,800 Is it going to be in person? 87 00:06:47,800 --> 00:06:50,120 Will it be virtual? 88 00:06:50,120 --> 00:06:53,320 Will it be hybrid? 89 00:06:53,320 --> 00:06:56,440 What is the timeline for the mediation? 90 00:06:56,440 --> 00:07:01,680 Is this a half-day mediation, a full-day mediation, a multi-day mediation? 91 00:07:01,680 --> 00:07:07,000 Is this a mediation that is going to start as one day with the potential for adding additional 92 00:07:07,000 --> 00:07:08,120 days? 93 00:07:08,120 --> 00:07:15,920 You need to understand these really basic logistical considerations going in. 94 00:07:15,920 --> 00:07:20,880 And as you're figuring that out, once you've determined your format, if you're going to 95 00:07:20,880 --> 00:07:24,040 do virtual, you need to know what your platform is. 96 00:07:24,040 --> 00:07:29,560 If you're going to do in person, you need to know what your location is. 97 00:07:29,560 --> 00:07:32,680 If you're going to do hybrid, you need both. 98 00:07:32,680 --> 00:07:38,840 And you need to make sure that your location has the capability for you to run the platform 99 00:07:38,840 --> 00:07:44,520 where those who are participating virtually can join. 100 00:07:44,520 --> 00:07:50,880 So let's talk a little bit about in-person. 101 00:07:50,880 --> 00:07:56,480 So as you can see from the image that I'm using for this particular topic, one thing 102 00:07:56,480 --> 00:08:02,960 you have to think about for an in-person mediation is refreshments. 103 00:08:02,960 --> 00:08:06,080 How are people going to have access to something to drink? 104 00:08:06,080 --> 00:08:08,880 Water, coffee, soft drinks, whatever. 105 00:08:08,880 --> 00:08:12,840 How are people going to have access to lunch? 106 00:08:12,840 --> 00:08:15,080 What arrangements may need to be made? 107 00:08:15,080 --> 00:08:16,080 Are they there? 108 00:08:16,080 --> 00:08:17,560 Are they free? 109 00:08:17,560 --> 00:08:20,840 Think through those types of logistics. 110 00:08:20,840 --> 00:08:25,240 You also need to be thinking about the space that you need. 111 00:08:25,240 --> 00:08:28,720 Do you need one room, two rooms, three rooms, four rooms? 112 00:08:28,720 --> 00:08:30,400 What kind of space do you need? 113 00:08:30,400 --> 00:08:33,240 Where is that space located? 114 00:08:33,240 --> 00:08:37,160 Typically in a mediation, you don't want the parties in adjacent rooms. 115 00:08:37,160 --> 00:08:42,520 So if you're using a caucus-style mediation, you don't want them sharing a wall because 116 00:08:42,520 --> 00:08:44,360 then they might hear one another. 117 00:08:44,360 --> 00:08:50,520 So you've got to think about the space that you need for the mediation. 118 00:08:50,520 --> 00:08:54,480 And you also need to think about accessibility. 119 00:08:54,480 --> 00:09:01,080 So maybe you have a fantastic space, but it's on the second floor of a building that unfortunately 120 00:09:01,080 --> 00:09:04,520 does not have a working elevator. 121 00:09:04,520 --> 00:09:08,960 And you have a participant who is unable to use the stairs. 122 00:09:08,960 --> 00:09:10,480 That doesn't work. 123 00:09:10,480 --> 00:09:15,800 So you need to be taking accessibility into your thinking, into consideration when you're 124 00:09:15,800 --> 00:09:21,440 thinking about the location for an in-person mediation. 125 00:09:21,440 --> 00:09:26,040 And make sure you understand some of the most basic things about the space you're using, 126 00:09:26,040 --> 00:09:29,560 like parking and restrooms. 127 00:09:29,560 --> 00:09:33,560 Sometimes mediators conduct mediations at the courthouse. 128 00:09:33,560 --> 00:09:38,400 Sometimes we conduct mediations in one or the other attorney's offices. 129 00:09:38,400 --> 00:09:41,000 They'll host the mediation. 130 00:09:41,000 --> 00:09:45,600 Sometimes we conduct mediations in our own space. 131 00:09:45,600 --> 00:09:51,400 Sometimes we conduct mediations in mediation centers that are set up specifically for mediation. 132 00:09:51,400 --> 00:09:52,920 Sometimes we rent space. 133 00:09:52,920 --> 00:09:57,840 There's a lot of variations on where you can do an in-person mediation. 134 00:09:57,840 --> 00:10:02,840 But you want to make sure you're thinking through all of the logistics so that you don't 135 00:10:02,840 --> 00:10:08,920 get there to the mediation and discover that there's a problem with just basic comfort 136 00:10:08,920 --> 00:10:12,320 or access in the mediation. 137 00:10:12,320 --> 00:10:20,200 Now, if you're doing a virtual mediation, you need to think about what platform are 138 00:10:20,200 --> 00:10:21,840 you going to use? 139 00:10:21,840 --> 00:10:28,080 I will tell you that I use Zoom for my personal, for my virtual mediation because that's something 140 00:10:28,080 --> 00:10:29,920 that I feel comfortable with. 141 00:10:29,920 --> 00:10:32,040 I have learned how to use it. 142 00:10:32,040 --> 00:10:35,200 I feel like I can troubleshoot issues in Zoom. 143 00:10:35,200 --> 00:10:36,440 I know how to set them up. 144 00:10:36,440 --> 00:10:38,760 I know how to minister them. 145 00:10:38,760 --> 00:10:43,640 You have to find a platform that works for you. 146 00:10:43,640 --> 00:10:47,960 And you also need to think about the things I just talked about. 147 00:10:47,960 --> 00:10:52,360 Who is going to administer your virtual mediation? 148 00:10:52,360 --> 00:10:53,920 Are you going to do it? 149 00:10:53,920 --> 00:10:59,240 Or do you have somebody else who will take care of creating breakout rooms, admitting 150 00:10:59,240 --> 00:11:04,280 people, assigning people to breakout rooms, moving people from breakout rooms? 151 00:11:04,280 --> 00:11:10,400 Those kinds of logistical considerations, that needs to be part of your planning for 152 00:11:10,400 --> 00:11:12,360 the mediation. 153 00:11:12,360 --> 00:11:17,080 You also need to think about who's going to do the troubleshooting if there are problems. 154 00:11:17,080 --> 00:11:23,400 The great thing about technology is when it works, it's fantastic. 155 00:11:23,400 --> 00:11:25,640 But sometimes it doesn't work. 156 00:11:25,640 --> 00:11:31,240 So you need to have thought about how you're going to deal with those problems in advance 157 00:11:31,240 --> 00:11:36,200 so you're ready to go and address them should they come up. 158 00:11:36,200 --> 00:11:40,000 So think through all of those issues if you're doing a virtual. 159 00:11:40,000 --> 00:11:43,400 And this is also relevant if you're doing a hybrid. 160 00:11:43,400 --> 00:11:50,520 If you're doing a hybrid mediation, you also need to be thinking about how you connect 161 00:11:50,520 --> 00:12:00,040 that virtual participant or participants into the in-person aspects of the mediation. 162 00:12:00,040 --> 00:12:05,040 So make sure you're thinking about all of those logistical issues when you're planning 163 00:12:05,040 --> 00:12:06,840 for the mediation. 164 00:12:06,840 --> 00:12:16,320 All right, so every jurisdiction and practice area varies in a lot of different ways. 165 00:12:16,320 --> 00:12:25,680 Very often mediators will send out a confirmation letter after the mediation has been set up. 166 00:12:25,680 --> 00:12:30,560 And that confirmation letter often includes logistical information. 167 00:12:30,560 --> 00:12:32,000 This is how we're doing it. 168 00:12:32,000 --> 00:12:33,440 This is when we're doing it. 169 00:12:33,440 --> 00:12:36,820 This is where we're doing it. 170 00:12:36,820 --> 00:12:39,200 This is the fee for doing it. 171 00:12:39,200 --> 00:12:44,280 These are your instructions for mediation statements. 172 00:12:44,280 --> 00:12:48,640 This is the content that you want in a mediation statement. 173 00:12:48,640 --> 00:12:53,880 Whether you want that mediation statement to be confidential or shared or you want to 174 00:12:53,880 --> 00:12:59,720 give the parties the option to share some or all and submit some that's confidential. 175 00:12:59,720 --> 00:13:06,600 So a lot of times those types of information are included in a confirmation letter. 176 00:13:06,600 --> 00:13:09,320 But again, that varies by jurisdiction. 177 00:13:09,320 --> 00:13:12,440 In some jurisdictions, it's just put in an email. 178 00:13:12,440 --> 00:13:17,320 In some jurisdictions, it's ordered by the court and you're not sending out any kind 179 00:13:17,320 --> 00:13:18,760 of confirmation letter. 180 00:13:18,760 --> 00:13:21,400 And there's a lot of variations on that. 181 00:13:21,400 --> 00:13:28,040 But you need to make sure that you are communicating to the parties what it is that you want to 182 00:13:28,040 --> 00:13:35,840 assist you in preparing for the mediation and the logistics of how, when, where the 183 00:13:35,840 --> 00:13:39,720 mediation will be conducted. 184 00:13:39,720 --> 00:13:48,360 A lot of times, again, varies by jurisdiction, mediators will ask parties to sign an agreement 185 00:13:48,360 --> 00:13:50,520 to mediate. 186 00:13:50,520 --> 00:13:57,040 Sometimes this information is incorporated into your confirmation letter. 187 00:13:57,040 --> 00:13:59,680 Sometimes this is a separate document. 188 00:13:59,680 --> 00:14:03,040 Sometimes this was already established in the court's order. 189 00:14:03,040 --> 00:14:09,840 In some jurisdictions, there are local rules or practice rules that may govern these types 190 00:14:09,840 --> 00:14:10,840 of issues. 191 00:14:10,840 --> 00:14:16,240 But some of the things you want to consider addressing, and I'm not telling you you have 192 00:14:16,240 --> 00:14:21,680 to address all of these things, but these are things you want to consider addressing, 193 00:14:21,680 --> 00:14:30,120 might be things that protect you as the mediator, such as an agreement or acknowledgement that 194 00:14:30,120 --> 00:14:38,280 you as mediator are not participating in the mediation as counsel or advocate or attorney 195 00:14:38,280 --> 00:14:46,200 for any of the parties, and that everybody recognizes anything you say does not constitute 196 00:14:46,200 --> 00:14:48,520 legal advice. 197 00:14:48,520 --> 00:14:54,680 Another thing you may want to address in your agreement to mediate or your rules of mediation 198 00:14:54,680 --> 00:15:01,400 or your confirmation letter would be that the parties agree they will not call you as 199 00:15:01,400 --> 00:15:07,720 mediator to testify about the mediation, that they will not subpoena you, the mediator, 200 00:15:07,720 --> 00:15:13,000 to testify in connection with the mediation, those types of protections. 201 00:15:13,000 --> 00:15:19,120 Again, remember whether you can include those, if you should include those, how you should 202 00:15:19,120 --> 00:15:25,560 include those, why would you include those, all of those things may vary based on where 203 00:15:25,560 --> 00:15:28,240 you are and what you are mediating. 204 00:15:28,240 --> 00:15:31,160 So think through all of those issues. 205 00:15:31,160 --> 00:15:39,440 A lot of times these types of documents, agreements, rules, confirmation letters also address protections 206 00:15:39,440 --> 00:15:41,000 from the parties. 207 00:15:41,000 --> 00:15:47,200 It may be provisions that protect the parties by acknowledging confidentiality. 208 00:15:47,200 --> 00:15:54,800 It may be a provision where the parties agree that no one will attempt to serve anybody 209 00:15:54,800 --> 00:15:58,040 at the mediation. 210 00:15:58,040 --> 00:16:04,720 And another thing that a lot of mediators include is a provision that says everyone agrees 211 00:16:04,720 --> 00:16:10,240 and acknowledges that there will be no recording of the mediation. 212 00:16:10,240 --> 00:16:16,920 And as a reminder, if you're doing this virtually, you want to make sure that your virtual 213 00:16:16,920 --> 00:16:24,080 setup is set up so that it does not record the mediation. 214 00:16:24,080 --> 00:16:32,680 And one last thing that I always encourage mediators to address is file destruction. 215 00:16:32,680 --> 00:16:38,160 So make sure that you have addressed in your letter, in your agreement to mediate, in your 216 00:16:38,160 --> 00:16:43,000 rules, in your correspondence, however you want to make sure you cover it off, make sure 217 00:16:43,000 --> 00:16:52,760 that parties understand that within X period of time, you will destroy your files. 218 00:16:52,760 --> 00:17:01,160 And I know a lot of mediators who destroy their files quickly within a day or two after 219 00:17:01,160 --> 00:17:03,240 the mediation is adjourned. 220 00:17:03,240 --> 00:17:08,440 Some who destroy it 30 days later, 60 days later just in case something has come up. 221 00:17:08,440 --> 00:17:14,440 You really, again, need to understand your local practice and this particular dispute 222 00:17:14,440 --> 00:17:16,600 in terms of thinking through that timing. 223 00:17:16,600 --> 00:17:19,640 I will share a story with you. 224 00:17:19,640 --> 00:17:25,560 I had one period of time, I was regularly mediating in a mediation center where there 225 00:17:25,560 --> 00:17:27,880 was a whole bunch of other mediators. 226 00:17:27,880 --> 00:17:35,240 And there was one mediator in particular who had arranged to have a shredder by the door, 227 00:17:35,240 --> 00:17:40,000 bringing the front door to the building where everybody would exit at the end of the mediation. 228 00:17:40,000 --> 00:17:48,120 And as people would be leaving the mediation, he would put his file in the shredder so that 229 00:17:48,120 --> 00:17:51,960 everybody knew he has now shredded his file. 230 00:17:51,960 --> 00:17:55,720 He told them he was going to shred the file at the end of the day and he showed them he 231 00:17:55,720 --> 00:17:59,080 was shredding the file at the end of the day. 232 00:17:59,080 --> 00:18:04,600 And so everybody has their own approach, but it is something that you do want to take into 233 00:18:04,600 --> 00:18:09,960 consideration when you're laying the ground rules for your mediation. 234 00:18:09,960 --> 00:18:13,360 All right, next topic. 235 00:18:13,360 --> 00:18:15,600 It is time to hit the books. 236 00:18:15,600 --> 00:18:24,280 It is time as a mediator for us to move past the administrative logistical stuff and start 237 00:18:24,280 --> 00:18:29,720 diving into the subject matter of this mediation. 238 00:18:29,720 --> 00:18:35,720 It's important as a mediator that we understand the facts and the law of the case. 239 00:18:35,720 --> 00:18:42,120 It's also important that we recognize that I always describe it as I have a symbol full 240 00:18:42,120 --> 00:18:47,040 of information compared to the knowledge that the parties have. 241 00:18:47,040 --> 00:18:54,600 You are unlikely in this process to be able to get to a place where you understand the 242 00:18:54,600 --> 00:19:01,960 case to the same degree as the parties, their counsel, those who have been living this dispute 243 00:19:01,960 --> 00:19:05,280 for perhaps months or years. 244 00:19:05,280 --> 00:19:13,840 But it's your job as mediator, as part of preparing for the mediation, to think of yourself 245 00:19:13,840 --> 00:19:17,400 as snooping or sleuthing. 246 00:19:17,400 --> 00:19:27,520 You're really trying to initially get a basic lay of the land, but also to dig deeper into 247 00:19:27,520 --> 00:19:35,800 the facts and the law and the underlying considerations that have impeded a resolution 248 00:19:35,800 --> 00:19:38,040 in this case. 249 00:19:38,040 --> 00:19:44,440 Over time, as you prepare, you're trying to deepen and broaden your understanding of 250 00:19:44,440 --> 00:19:48,120 all aspects of the dispute. 251 00:19:48,120 --> 00:19:56,360 So, you're going to review the mediation statements that the parties sent to you. 252 00:19:56,360 --> 00:20:02,320 If they haven't provided to you the operative pleadings, the petition or complaint, the answer, 253 00:20:02,320 --> 00:20:08,520 the counterclaim, those types of things, you can ask them for those, or in some places 254 00:20:08,520 --> 00:20:11,080 you can access those on your own. 255 00:20:11,080 --> 00:20:15,200 Make sure you look at those because it's always important to understand what the causes of 256 00:20:15,200 --> 00:20:21,040 action are that are being raised, the primary defenses, even if it is not addressed in the 257 00:20:21,040 --> 00:20:22,680 mediation statement. 258 00:20:22,680 --> 00:20:27,960 And we'll talk about this in just a minute, but you may want to say, hey, your mediation 259 00:20:27,960 --> 00:20:30,080 statement talked about X, Y, and Z. 260 00:20:30,080 --> 00:20:36,920 I saw that your answer, complaint, petition, whatever, raised this other issue. 261 00:20:36,920 --> 00:20:39,200 Is that no longer an issue in the case? 262 00:20:39,200 --> 00:20:44,320 So make sure you understand the operative, or you've read the operative pleadings and 263 00:20:44,320 --> 00:20:46,360 the mediation statements. 264 00:20:46,360 --> 00:20:52,520 If there are pending dispositive motions, then you may want to read those too. 265 00:20:52,520 --> 00:20:58,240 And the reason I say that is sometimes parties come to mediation after they have filed a 266 00:20:58,240 --> 00:21:02,440 motion for summary judgment, but before the hearing. 267 00:21:02,440 --> 00:21:08,040 And hopefully, they have told you that and they have provided you with those pleadings. 268 00:21:08,040 --> 00:21:14,200 But if not, you might want to ask for them or locate them so that you have that information 269 00:21:14,200 --> 00:21:20,920 as well because that argument, those facts, that information could be important in the 270 00:21:20,920 --> 00:21:23,640 mediation process. 271 00:21:23,640 --> 00:21:28,720 As you are reviewing all of this information, take notes. 272 00:21:28,720 --> 00:21:34,360 So I always make like a little margin note that says, you know, notes to self. 273 00:21:34,360 --> 00:21:39,760 So I know that it's notes that I made are my own versus notes that I made based on a 274 00:21:39,760 --> 00:21:44,360 conversation with one of the attorneys or in the course of the mediation. 275 00:21:44,360 --> 00:21:46,120 So take notes. 276 00:21:46,120 --> 00:21:52,720 And it's not just notes to make sure you understand the basic information or the substantive issues 277 00:21:52,720 --> 00:21:54,240 in the case. 278 00:21:54,240 --> 00:21:59,920 Also make sure you're taking notes about questions, things you didn't understand, things you may 279 00:21:59,920 --> 00:22:07,960 want more information on and never, ever be afraid to just ask. 280 00:22:07,960 --> 00:22:13,240 So if you're reading the mediation statement or you're reading the operative pleadings 281 00:22:13,240 --> 00:22:21,920 or the dispositive motion or all of the above and you think, huh, I don't get that, make 282 00:22:21,920 --> 00:22:27,600 sure you ask so that you can understand it. 283 00:22:27,600 --> 00:22:34,200 And then it's also to circle back to something I touched on a few minutes ago. 284 00:22:34,200 --> 00:22:41,520 Important to realize that you start by looking at the forest and then you dive a little in 285 00:22:41,520 --> 00:22:44,640 so that you can see a few of the trees. 286 00:22:44,640 --> 00:22:51,360 But you have to recognize that in this vast forest of whatever this dispute is, you are 287 00:22:51,360 --> 00:22:59,920 unlikely to actually be able to understand each and every tree to use the analogy, each 288 00:22:59,920 --> 00:23:02,000 and every tree in that case. 289 00:23:02,000 --> 00:23:08,280 You simply don't have time as a mediator and there's not a need for you to understand every 290 00:23:08,280 --> 00:23:11,120 single infinite detail of the case. 291 00:23:11,120 --> 00:23:18,360 We need to understand are the most important factors, the things that are driving the parties 292 00:23:18,360 --> 00:23:24,080 or word in the litigation, the things that are impeding resolution, the things that the 293 00:23:24,080 --> 00:23:27,360 parties need in order to resolve. 294 00:23:27,360 --> 00:23:35,080 But realize that it's okay that you don't understand everything about the case. 295 00:23:35,080 --> 00:23:44,480 All right, so we've hit the books and now the next step in the process of preparing 296 00:23:44,480 --> 00:23:48,960 for mediation is to be all ears. 297 00:23:48,960 --> 00:23:51,520 So what do I mean by that? 298 00:23:51,520 --> 00:24:01,600 In all of my mediations, I schedule a pre-call and I have a separate pre-call with the attorneys 299 00:24:01,600 --> 00:24:04,280 for each of the parties. 300 00:24:04,280 --> 00:24:13,440 I use that pre-call to really listen and to ask questions and to build rapport with the 301 00:24:13,440 --> 00:24:14,920 attorneys. 302 00:24:14,920 --> 00:24:22,040 This is my opportunity to really try and understand the things that are going to be important 303 00:24:22,040 --> 00:24:30,320 in this mediation in helping the parties find a path to resolution so that I can go in prepared 304 00:24:30,320 --> 00:24:35,560 and with strategies in mind to help us get there. 305 00:24:35,560 --> 00:24:42,160 So really remember when you're doing these calls with the attorneys for each side that 306 00:24:42,160 --> 00:24:51,200 you want to listen to what they say, but you also want to listen for what they don't say. 307 00:24:51,200 --> 00:24:56,880 And if there's something that strikes you as odd that they're not talking about something, 308 00:24:56,880 --> 00:25:00,080 my suggestion is to ask about it. 309 00:25:00,080 --> 00:25:03,240 And this ties back to something I said a few minutes ago. 310 00:25:03,240 --> 00:25:07,760 If there's some issue in the case that you've read a lot about and seen lots of mentions 311 00:25:07,760 --> 00:25:12,400 of, but it's not in their mediation statement or it's not something that comes up in your 312 00:25:12,400 --> 00:25:16,480 phone conversation, just ask. 313 00:25:16,480 --> 00:25:17,480 Ask them. 314 00:25:17,480 --> 00:25:18,480 This is your chance. 315 00:25:18,480 --> 00:25:19,680 There's no clients on this call. 316 00:25:19,680 --> 00:25:22,520 I keep my pre-calls just counsel. 317 00:25:22,520 --> 00:25:25,160 There's no clients. 318 00:25:25,160 --> 00:25:31,240 This is not going to impact the actual mediation in terms of if you ask something that opens 319 00:25:31,240 --> 00:25:35,560 a can of worms because there's no one else privy. 320 00:25:35,560 --> 00:25:40,840 This is your chance to ask any questions that you may have. 321 00:25:40,840 --> 00:25:42,760 All right. 322 00:25:42,760 --> 00:25:49,160 So I want to take a minute to talk about the value of doing these pre-calls. 323 00:25:49,160 --> 00:25:55,800 So there's really three primary reasons that I like to do a pre-call with attorneys in 324 00:25:55,800 --> 00:25:57,400 every case. 325 00:25:57,400 --> 00:26:03,880 So let me take one step back and say, I mediate disputes of all kinds. 326 00:26:03,880 --> 00:26:10,160 I mediate very simple car accident cases where maybe the parties have already agreed on liability 327 00:26:10,160 --> 00:26:18,040 and all they're fighting about is damages to really complicated multi-party billion-dollar 328 00:26:18,040 --> 00:26:21,240 multi-day mediation. 329 00:26:21,240 --> 00:26:25,280 I like to have a pre-call in all of those cases. 330 00:26:25,280 --> 00:26:30,760 The amount of preparation I do for those types of cases may vary by case, but I do like to 331 00:26:30,760 --> 00:26:35,440 have a pre-call regardless of the size or complexity of the case. 332 00:26:35,440 --> 00:26:37,080 And here's why. 333 00:26:37,080 --> 00:26:44,760 A pre-call gives you the opportunity to understand the case dynamics. 334 00:26:44,760 --> 00:26:51,680 It gives you an opportunity to make sure you understand the case substance. 335 00:26:51,680 --> 00:26:56,480 And it gives you a chance to build rapport with the attorneys in the case. 336 00:26:56,480 --> 00:27:00,640 Now, sometimes we have people who mediate with us over and over and over again. 337 00:27:00,640 --> 00:27:02,720 So we already have that rapport. 338 00:27:02,720 --> 00:27:09,600 But oftentimes, one or both sides, counsel, are people who we have not mediated with. 339 00:27:09,600 --> 00:27:15,200 And in those instances, it's really great to have this chance to get to know them and 340 00:27:15,200 --> 00:27:21,040 to build that connection and rapport with them. 341 00:27:21,040 --> 00:27:31,160 So when I get on my pre-call, I like to start by not talking about the substance. 342 00:27:31,160 --> 00:27:38,920 I like to start by talking about the mundane administrative aspects of the mediation. 343 00:27:38,920 --> 00:27:42,200 All right, let's confirm. 344 00:27:42,200 --> 00:27:43,720 You sent me your mediation statement. 345 00:27:43,720 --> 00:27:46,960 It told me that X, Y, and Z are going to attend the mediation. 346 00:27:46,960 --> 00:27:51,160 I just want to make sure I understand, is that actually the list who's coming to the 347 00:27:51,160 --> 00:27:53,160 mediation? 348 00:27:53,160 --> 00:27:57,440 Side note, you'll be surprised at how often you get on the phone and suddenly the list 349 00:27:57,440 --> 00:27:59,880 of participants in the mediation has changed. 350 00:27:59,880 --> 00:28:05,200 A new person is coming, or a different person is coming, an additional person is coming. 351 00:28:05,200 --> 00:28:12,920 So I always ask that question because it also, not only does it update me on who may be coming, 352 00:28:12,920 --> 00:28:16,520 but it allows me to understand how those people fit. 353 00:28:16,520 --> 00:28:24,680 So if the plaintiff is bringing not just counsel and one client rep, but actually three client 354 00:28:24,680 --> 00:28:27,760 reps, well, who are those three client reps? 355 00:28:27,760 --> 00:28:28,960 What are their roles? 356 00:28:28,960 --> 00:28:31,000 What's their involvement? 357 00:28:31,000 --> 00:28:35,040 And gives you a chance to have dialogue around that. 358 00:28:35,040 --> 00:28:40,320 So I start with trying to confirm the participants in the mediation. 359 00:28:40,320 --> 00:28:46,480 I regularly ask parties to sign an agreement to mediate that contains the rules for the 360 00:28:46,480 --> 00:28:47,640 mediation. 361 00:28:47,640 --> 00:28:50,400 Not everybody does that, but I do. 362 00:28:50,400 --> 00:28:58,520 So in my pre-calls, I will typically ask if I have not received all the signed agreements 363 00:28:58,520 --> 00:29:03,920 to mediate, I will ask about those and get the status of getting those, make arrangements 364 00:29:03,920 --> 00:29:08,480 if there's some logistical issue with having those signed, those kinds of things. 365 00:29:08,480 --> 00:29:12,120 I deal with that administrative task. 366 00:29:12,120 --> 00:29:18,320 In a mediation where you are handling collection of the fee, sometimes somebody else is taking 367 00:29:18,320 --> 00:29:23,240 care of that, but if you are handling it, this is the time to say, hey, by the way, 368 00:29:23,240 --> 00:29:25,760 I haven't received your payment yet. 369 00:29:25,760 --> 00:29:28,360 Do you need my payment instructions? 370 00:29:28,360 --> 00:29:33,120 So use this as a time to make sure that you get paid. 371 00:29:33,120 --> 00:29:39,280 And so I, like I said, start my calls with these things, with these kind of really mundane, 372 00:29:39,280 --> 00:29:41,600 purely administrative matters. 373 00:29:41,600 --> 00:29:46,120 And I tell them on the front end, before we get into the substance, I want to deal with 374 00:29:46,120 --> 00:29:48,320 just some administrative things. 375 00:29:48,320 --> 00:29:53,760 And I do that because it kind of diffuses things and we can deal with the mundane stuff. 376 00:29:53,760 --> 00:29:59,680 I don't have to worry about forgetting about it at the end, but also it allows us to start 377 00:29:59,680 --> 00:30:05,480 having dialogue about something that's just mundane before we really dig deeper into the 378 00:30:05,480 --> 00:30:06,480 merits. 379 00:30:06,480 --> 00:30:14,600 All right, so now that you have dealt with all the mundane administrative aspects of 380 00:30:14,600 --> 00:30:21,080 the mediation, the next thing I like to do is make sure we're all on the same page about 381 00:30:21,080 --> 00:30:23,560 the scope of the mediation. 382 00:30:23,560 --> 00:30:28,080 Now, you may think, why is this an issue? 383 00:30:28,080 --> 00:30:29,920 In most cases, it's not. 384 00:30:29,920 --> 00:30:33,800 In most cases, the scope of the mediation is pretty clear. 385 00:30:33,800 --> 00:30:41,000 It's a car accident, parties are only fighting over damages, here's where they are, or it's 386 00:30:41,000 --> 00:30:45,160 a commercial dispute and it's breach of contract. 387 00:30:45,160 --> 00:30:49,080 And here are the three things they're fighting over about the breach of contract. 388 00:30:49,080 --> 00:30:55,160 And all of that is clear based on the operative pleadings and the mediation statements. 389 00:30:55,160 --> 00:30:57,960 But you still want to check in. 390 00:30:57,960 --> 00:31:04,440 Every now and then, though, you will get mediation statements from the parties and you will read 391 00:31:04,440 --> 00:31:13,400 them and you will go, you think we're mediating about red apples and you think we're mediating 392 00:31:13,400 --> 00:31:18,320 over green zebras. 393 00:31:18,320 --> 00:31:22,640 Those are the times when you really need to have a conversation about the scope of the 394 00:31:22,640 --> 00:31:23,640 mediation. 395 00:31:23,640 --> 00:31:30,360 And regardless, I always like to just check in and make sure that the parties are focused 396 00:31:30,360 --> 00:31:32,560 on mediating the same issues. 397 00:31:32,560 --> 00:31:36,440 So you want to ask about the scope of the mediation. 398 00:31:36,440 --> 00:31:37,840 Make sure you understand. 399 00:31:37,840 --> 00:31:42,200 I read your mediation statement and I understand that all we're talking about in this mediation 400 00:31:42,200 --> 00:31:48,400 is, let's use the car accident example, is damages because for purposes of mediation, 401 00:31:48,400 --> 00:31:50,360 the parties are not disputing liability. 402 00:31:50,360 --> 00:31:51,360 Is that right? 403 00:31:51,360 --> 00:31:52,600 So check in. 404 00:31:52,600 --> 00:32:01,880 Make sure you understand the scope of what you are mediating. 405 00:32:01,880 --> 00:32:09,000 Another topic that I like to do in my pre-calls, even though I also ask that it be included 406 00:32:09,000 --> 00:32:13,240 in the mediation statement, is the history of settlement talks. 407 00:32:13,240 --> 00:32:19,360 So I always include in my list of what I want addressed in the mediation statement the history 408 00:32:19,360 --> 00:32:21,040 of settlement talks. 409 00:32:21,040 --> 00:32:28,120 And let me take just a slight detour and say, I tailor what I want in the mediation statement 410 00:32:28,120 --> 00:32:29,840 for each case. 411 00:32:29,840 --> 00:32:32,360 So it always has certain things. 412 00:32:32,360 --> 00:32:37,160 It always has, tell me who is participating in the mediation. 413 00:32:37,160 --> 00:32:40,040 Tell me what the history of settlement talks are. 414 00:32:40,040 --> 00:32:44,240 Give me a concise description of the nature of the case. 415 00:32:44,240 --> 00:32:51,720 Give me a concise bullet point list of the primary facts or legal issues that are in 416 00:32:51,720 --> 00:32:57,240 dispute and underlying the issues we're to mediate. 417 00:32:57,240 --> 00:33:04,200 It also asks for barriers or obstacles to resolution. 418 00:33:04,200 --> 00:33:07,400 Here I want to talk about the history of settlement offers. 419 00:33:07,400 --> 00:33:13,840 And the reason I want to talk about that is because even though you will have asked them 420 00:33:13,840 --> 00:33:20,440 to provide that to you in their mediation statements, you will be surprised at how many 421 00:33:20,440 --> 00:33:26,800 times in your pre-call you say, hey, I read your mediation statement and it says the history 422 00:33:26,800 --> 00:33:29,760 of settlement offers is X. 423 00:33:29,760 --> 00:33:32,360 Has anything changed since then? 424 00:33:32,360 --> 00:33:37,960 And you will suddenly find out that what was actually in the mediation statement is completely 425 00:33:37,960 --> 00:33:45,720 wrong or that they've had five more conversations or there's some other variation on that theme. 426 00:33:45,720 --> 00:33:49,120 Sometimes I don't even say I see X in the mediation statement. 427 00:33:49,120 --> 00:33:51,600 Sometimes I don't say it because they didn't include it. 428 00:33:51,600 --> 00:33:56,960 Sometimes I don't say it because I have just a spidey sense, a gut feeling that I'm going 429 00:33:56,960 --> 00:34:01,040 to get a different answer and I just say, hey, talk to me about the history of settlement 430 00:34:01,040 --> 00:34:02,040 talks. 431 00:34:02,040 --> 00:34:09,840 Now, I will say you do have to be prepared that every now and then you will be in the 432 00:34:09,840 --> 00:34:16,800 actual mediation when you will learn new information about the history of settlement talks. 433 00:34:16,800 --> 00:34:20,040 I will digress for a moment and share a story. 434 00:34:20,040 --> 00:34:27,000 I had a mediation a couple of years ago where we were three or four hours into the mediation 435 00:34:27,000 --> 00:34:32,880 and had probably gone through three or four rounds of offers when one of the parties in 436 00:34:32,880 --> 00:34:37,320 frustration says, oh, I can't believe it. 437 00:34:37,320 --> 00:34:43,640 He's only just now getting to where he was when we talked last week. 438 00:34:43,640 --> 00:34:49,440 And the attorney and I both looked at the client and said, what? 439 00:34:49,440 --> 00:34:56,080 And it turns out that the two clients had been negotiating without either of their attorneys 440 00:34:56,080 --> 00:34:58,400 knowing anything about it. 441 00:34:58,400 --> 00:35:05,000 And that we had just spent the first three to four hours retreading the ground that they 442 00:35:05,000 --> 00:35:10,360 had already gone on so that now we are halfway, almost halfway through our mediation and we're 443 00:35:10,360 --> 00:35:14,520 just at the same place that they had left off their talks. 444 00:35:14,520 --> 00:35:20,600 But no one but the two principles of the parties had any idea. 445 00:35:20,600 --> 00:35:23,960 So sometimes you get curveballs in mediation. 446 00:35:23,960 --> 00:35:28,520 But if the attorneys have been involved, when you ask in your pre-call, you will hopefully 447 00:35:28,520 --> 00:35:34,200 learn about the history of settlement talks and perhaps more or different information 448 00:35:34,200 --> 00:35:39,480 than you received in the confidential mediation statements. 449 00:35:39,480 --> 00:35:46,920 So the next thing that I always ask in my pre-calls is, are there any interpersonal issues I should 450 00:35:46,920 --> 00:35:49,320 know about? 451 00:35:49,320 --> 00:35:56,600 And are there any reasons that the parties cannot be in a room together? 452 00:35:56,600 --> 00:35:59,120 Even if it's virtual. 453 00:35:59,120 --> 00:36:06,480 The reason I ask for this is, one, it opens the door to understanding some of the interpersonal 454 00:36:06,480 --> 00:36:13,760 dynamics between the clients for all of the parties and sometimes between the attorneys 455 00:36:13,760 --> 00:36:15,760 for all of the parties. 456 00:36:15,760 --> 00:36:24,480 So I try not to focus on, are there any interpersonal issues between the clients? 457 00:36:24,480 --> 00:36:29,280 I just say, are there any interpersonal issues I need to know about? 458 00:36:29,280 --> 00:36:34,120 So if this is an issue between counsel, I can learn about that friction. 459 00:36:34,120 --> 00:36:38,000 If there's an issue between clients, I can learn about that friction. 460 00:36:38,000 --> 00:36:42,800 If perhaps it's an issue between the counsel on one side and client on the other, I can 461 00:36:42,800 --> 00:36:44,640 learn about that friction. 462 00:36:44,640 --> 00:36:47,240 You want to know about this. 463 00:36:47,240 --> 00:36:54,840 And it may come as a surprise to you to learn that even in virtual mediation, sometimes 464 00:36:54,840 --> 00:36:57,560 the parties can't be in a room together. 465 00:36:57,560 --> 00:37:07,800 So I have had at least four or five virtual, fully virtual mediation where the parties, 466 00:37:07,800 --> 00:37:15,160 I have been asked not to have the parties see one another because there are such fraught 467 00:37:15,160 --> 00:37:17,640 interpersonal relations. 468 00:37:17,640 --> 00:37:24,400 So that's something that you want to know about before you get to the mediation so that 469 00:37:24,400 --> 00:37:29,040 you can make accommodations when you are there. 470 00:37:29,040 --> 00:37:35,480 If it is an in-person mediation, you may need to think about the doors that people use to 471 00:37:35,480 --> 00:37:41,840 enter and exit, you may need to stagger your start times, you may need to really think 472 00:37:41,840 --> 00:37:48,600 through very clearly of what protections you can have in place so that just running into 473 00:37:48,600 --> 00:37:53,680 one another in the hallway does not derail your mediation. 474 00:37:53,680 --> 00:38:02,160 I did have a call recently where the parties wanted to do an in-person mediation even though 475 00:38:02,160 --> 00:38:09,040 there was a restraining order due to violence and I declined. 476 00:38:09,040 --> 00:38:13,800 I said, I have no way to keep the parties physically safe. 477 00:38:13,800 --> 00:38:19,880 I am happy to serve as your mediator but under the circumstances, I think it should be virtual. 478 00:38:19,880 --> 00:38:25,600 So you want to understand these dynamics so that you can plan accordingly and keep all 479 00:38:25,600 --> 00:38:28,680 of the participants safe, including yourself. 480 00:38:28,680 --> 00:38:35,200 All right, so now you've gone through all of the mundane aspects of the mediation, you've 481 00:38:35,200 --> 00:38:39,880 gone through the history, you know who's coming, you understand interpersonal issues, it is 482 00:38:39,880 --> 00:38:47,320 time to dive into the puzzle pieces of the substance of this case. 483 00:38:47,320 --> 00:38:54,240 So I like to use this as a way to first demonstrate that I have some general understanding of 484 00:38:54,240 --> 00:38:55,240 the case. 485 00:38:55,240 --> 00:38:58,840 Today I read your mediation statement and I understand that this is a case that involves 486 00:38:58,840 --> 00:39:03,640 X, Y and Z and then I start to ask my questions. 487 00:39:03,640 --> 00:39:13,120 But I don't understand Q. I'd like to understand further Z. I read the case that you refer 488 00:39:13,120 --> 00:39:20,640 to on R. Whatever the issues may be, this is your chance to show them that you read 489 00:39:20,640 --> 00:39:25,320 with a scent and dig deeper so that you understand it. 490 00:39:25,320 --> 00:39:30,920 I will also say it's really important in this part of the conversation to give the attorneys 491 00:39:30,920 --> 00:39:32,480 a chance to talk. 492 00:39:32,480 --> 00:39:38,120 So sometimes I'll say, hey, I read your mediation statement but I'd like to hear it directly 493 00:39:38,120 --> 00:39:39,120 from you. 494 00:39:39,120 --> 00:39:41,880 Can you tell me a little bit about the case? 495 00:39:41,880 --> 00:39:45,760 At that point, you've already been on the phone for a while so they've probably already 496 00:39:45,760 --> 00:39:51,720 picked up that you're prepared, that you understand aspects of the case and this is their chance 497 00:39:51,720 --> 00:39:55,440 to really dig deeper and share more. 498 00:39:55,440 --> 00:40:00,480 And so make sure you're giving them those open opportunities to share information with 499 00:40:00,480 --> 00:40:03,280 you and that you are asking questions. 500 00:40:03,280 --> 00:40:06,000 I know that sounds like a recurring theme. 501 00:40:06,000 --> 00:40:07,000 Just ask. 502 00:40:07,000 --> 00:40:09,000 Keep asking questions. 503 00:40:09,000 --> 00:40:16,120 Asking questions is a great way to learn and to listen and to connect. 504 00:40:16,120 --> 00:40:22,200 One of the things that you may need to talk about when you're on the call is insurance. 505 00:40:22,200 --> 00:40:24,720 So in some cases, it's obvious. 506 00:40:24,720 --> 00:40:30,920 Perhaps it's a car accident case and it is clear that the defendant is an insurance company. 507 00:40:30,920 --> 00:40:35,840 Well, you don't really have to have much of a conversation about insurance for that. 508 00:40:35,840 --> 00:40:40,640 If they want to share with you the policy limits, you can talk about that. 509 00:40:40,640 --> 00:40:47,320 But some cases, it is unclear to you if there is insurance involved. 510 00:40:47,320 --> 00:40:54,640 And you always want to just check in and say, hey, is there insurance coverage for this? 511 00:40:54,640 --> 00:40:57,520 Is the provider participating? 512 00:40:57,520 --> 00:41:01,640 Oftentimes this is a conversation you'll direct to the defendant because they're the 513 00:41:01,640 --> 00:41:07,000 ones who would presumably have the applicable insurance, but it's something to think about 514 00:41:07,000 --> 00:41:08,000 in every case. 515 00:41:08,000 --> 00:41:09,920 In some cases, it's not relevant. 516 00:41:09,920 --> 00:41:13,320 Either, as I said, it's not relevant because it's a car accident case and you're actually 517 00:41:13,320 --> 00:41:20,640 talking to counsel for the insurance company, or it is clear that this is just not a situation 518 00:41:20,640 --> 00:41:22,840 in which insurance would be involved. 519 00:41:22,840 --> 00:41:26,760 But in situations where there might be insurance, just check in. 520 00:41:26,760 --> 00:41:28,160 Just ask about it. 521 00:41:28,160 --> 00:41:34,800 And make sure that the right people are attending the mediation. 522 00:41:34,800 --> 00:41:41,080 This is also a chance to understand some of the emotional challenges in this case. 523 00:41:41,080 --> 00:41:48,000 So I always like to inquire, hey, is your client emotional about this? 524 00:41:48,000 --> 00:41:52,680 Is this a situation where they really need to vent or to tell their story? 525 00:41:52,680 --> 00:42:00,640 Do they need to have a chance to tell me the entirety of the story perhaps more than once? 526 00:42:00,640 --> 00:42:03,560 You really want to touch in on those kind of things. 527 00:42:03,560 --> 00:42:08,600 And the reason you want to check in on those kind of things is because sometimes giving 528 00:42:08,600 --> 00:42:16,600 parties a chance to just be heard, to just be listened to, is the way you unlock the 529 00:42:16,600 --> 00:42:21,840 path to resolution. 530 00:42:21,840 --> 00:42:31,120 During this conversation, you also want to check in on any potential barriers to resolution. 531 00:42:31,120 --> 00:42:35,480 Sometimes there are obstacles that have come up that have prevented the parties from getting 532 00:42:35,480 --> 00:42:40,480 to settlement on their own, and you can find out about those. 533 00:42:40,480 --> 00:42:43,760 Sometimes they haven't really engaged in any settlement talks. 534 00:42:43,760 --> 00:42:49,480 But if you ask counsel, counsel will say, well, you know, my client's really emotional 535 00:42:49,480 --> 00:42:54,360 about this, and I think that is an obstacle we'll have to overcome. 536 00:42:54,360 --> 00:42:57,720 Or the other client has an anger management issue. 537 00:42:57,720 --> 00:43:04,320 Or I think that the other side has some liquidity concerns. 538 00:43:04,320 --> 00:43:09,800 And so we have some constraints around how much they could pay or whether they need payment 539 00:43:09,800 --> 00:43:12,120 terms, whatever it may be. 540 00:43:12,120 --> 00:43:13,400 Check in. 541 00:43:13,400 --> 00:43:20,600 Find out if they have identified any obstacles to resolution so that you can start thinking 542 00:43:20,600 --> 00:43:25,200 about how to overcome them. 543 00:43:25,200 --> 00:43:32,680 And try to think about gently probing into distinguishing between what their client might 544 00:43:32,680 --> 00:43:38,400 want versus what their client might need in order to settle. 545 00:43:38,400 --> 00:43:43,440 You know, I would ask open-ended questions in this conversation. 546 00:43:43,440 --> 00:43:46,280 What do you think a settlement might look like in this case? 547 00:43:46,280 --> 00:43:49,960 Yeah, I can see that your client might want that. 548 00:43:49,960 --> 00:43:54,520 What do you think your client really needs in order to resolve this case? 549 00:43:54,520 --> 00:43:59,440 Are there business considerations we should explore? 550 00:43:59,440 --> 00:44:05,040 Engage in a dialogue so that you can start to understand the distinction between the 551 00:44:05,040 --> 00:44:06,800 want and the need. 552 00:44:06,800 --> 00:44:10,560 You may not explain to them directly that that's what you're doing. 553 00:44:10,560 --> 00:44:11,560 You can. 554 00:44:11,560 --> 00:44:14,120 But that's really what you're trying to probe. 555 00:44:14,120 --> 00:44:21,760 You're trying to probe and understand more deeply how are we going to get from dispute 556 00:44:21,760 --> 00:44:25,480 to resolution. 557 00:44:25,480 --> 00:44:28,200 And make sure that you check in. 558 00:44:28,200 --> 00:44:32,480 And you say, what do you think some options are for settlement? 559 00:44:32,480 --> 00:44:35,200 What are some of the constraints around settlement? 560 00:44:35,200 --> 00:44:38,640 This is kind of the mirror image of what we just talked about, right? 561 00:44:38,640 --> 00:44:42,640 So we talked about obstacles to resolution. 562 00:44:42,640 --> 00:44:44,840 We talked about wants and needs. 563 00:44:44,840 --> 00:44:46,400 Talk about settlement options. 564 00:44:46,400 --> 00:44:51,320 And I like to suggest to the parties that it's really important to remember that in 565 00:44:51,320 --> 00:44:55,960 mediation, we have the opportunity to be creative. 566 00:44:55,960 --> 00:45:02,120 We can do things that they wouldn't get to do if they go to trial and there's a judgment. 567 00:45:02,120 --> 00:45:06,240 We can find a creative solution that works for the parties. 568 00:45:06,240 --> 00:45:10,840 So I often say to the parties, are there any things we should be thinking about in terms 569 00:45:10,840 --> 00:45:15,320 of resolution that involve the non-monetary? 570 00:45:15,320 --> 00:45:21,840 Oftentimes, everybody is so focused on, A, is going to push X dollars across the table 571 00:45:21,840 --> 00:45:27,880 to B, that they haven't thought about some of the ancillary things that might help us 572 00:45:27,880 --> 00:45:30,120 get to settlement. 573 00:45:30,120 --> 00:45:36,440 So remind them that we can be creative and we can take into consideration non-monetary 574 00:45:36,440 --> 00:45:41,400 factors in finding a path to resolution. 575 00:45:41,400 --> 00:45:49,080 Really, really, really use these pre-calls as a way to use your listening ears. 576 00:45:49,080 --> 00:45:54,560 You are really listening deeply to what they have to say and learning from what they have 577 00:45:54,560 --> 00:45:58,840 to say, getting cues from what they have to say. 578 00:45:58,840 --> 00:46:06,080 Near the end of my pre-calls, I almost always say, what have we not talked about that we 579 00:46:06,080 --> 00:46:08,800 should talk about? 580 00:46:08,800 --> 00:46:14,800 Sometimes I say that two or three times because every time I say it, I get a whole other answer. 581 00:46:14,800 --> 00:46:18,040 And so make sure you're doing that because a lot of times that's where you'll get the 582 00:46:18,040 --> 00:46:22,760 most valuable input of the entire call. 583 00:46:22,760 --> 00:46:25,080 All right. 584 00:46:25,080 --> 00:46:28,360 So we've dealt with planning and the logistics. 585 00:46:28,360 --> 00:46:33,160 We've dealt with hitting the books so that we can start to understand. 586 00:46:33,160 --> 00:46:37,480 We have had our pre-calls and we have used our listening ears. 587 00:46:37,480 --> 00:46:44,800 And now it is time to do our homework so that we are fully prepared and engaged as we go 588 00:46:44,800 --> 00:46:47,480 into the mediation. 589 00:46:47,480 --> 00:46:57,680 This is our time to study what we have gathered in terms of information and to reflect. 590 00:46:57,680 --> 00:47:01,800 So you want to reflect on what you've learned. 591 00:47:01,800 --> 00:47:04,840 You want to reflect on your observations. 592 00:47:04,840 --> 00:47:09,920 You want to reflect on any questions you may still have. 593 00:47:09,920 --> 00:47:17,360 You want to reflect on some strategies, some options, some angles you may want to think 594 00:47:17,360 --> 00:47:21,280 about using in the course of the mediation. 595 00:47:21,280 --> 00:47:27,080 Really after you've finished reading everything and having your pre-calls, really take a minute 596 00:47:27,080 --> 00:47:33,800 to stop and reflect on it so that you can go into the mediation, really focused on being 597 00:47:33,800 --> 00:47:40,040 prepared to help the parties find their path to resolution. 598 00:47:40,040 --> 00:47:46,360 So one thing I like to try and take a few minutes to think about is based on what I've 599 00:47:46,360 --> 00:47:51,760 read, based on the input that I have heard in my pre-calls, based on just sort of my 600 00:47:51,760 --> 00:47:56,960 own gut reaction from all the information I have gathered. 601 00:47:56,960 --> 00:48:02,600 Do I think that there are cognitive barriers that have impeded the parties' efforts to 602 00:48:02,600 --> 00:48:05,360 resolve this case? 603 00:48:05,360 --> 00:48:14,080 So it is really, really important to remember that cognitive barriers could involve the 604 00:48:14,080 --> 00:48:20,600 parties, their counsel, and or you, the mediator. 605 00:48:20,600 --> 00:48:27,240 So it's important that we are also aware of our own cognitive barriers as we go through 606 00:48:27,240 --> 00:48:33,120 and that we are willing to be flexible and change our mindset as well. 607 00:48:33,120 --> 00:48:38,280 All right, so the reason I like to think about this, do a little pre-think about this before 608 00:48:38,280 --> 00:48:44,400 I go into the mediation, is so I'm prepared to adapt my approach in any given room at 609 00:48:44,400 --> 00:48:48,280 any given time when I'm going into the mediation. 610 00:48:48,280 --> 00:48:54,880 So let's just explore a couple of cognitive barriers. 611 00:48:54,880 --> 00:48:56,320 Advocacy bias. 612 00:48:56,320 --> 00:49:05,200 So advocacy bias is being so fixated on advocating the strength of a position that we dismiss 613 00:49:05,200 --> 00:49:08,960 information challenging that position. 614 00:49:08,960 --> 00:49:13,680 And I have a little cartoon to demonstrate this for you. 615 00:49:13,680 --> 00:49:19,440 What's the point of looking at your side of this argument when it's wrong? 616 00:49:19,440 --> 00:49:25,400 That is advocacy bias. 617 00:49:25,400 --> 00:49:26,400 Cognitive dissonance. 618 00:49:26,400 --> 00:49:28,440 Sorry, that's a hard word to say. 619 00:49:28,440 --> 00:49:30,960 Cognitive dissonance. 620 00:49:30,960 --> 00:49:37,920 Psychological inability to hear information that contradicts our viewpoint, even if we 621 00:49:37,920 --> 00:49:43,280 would otherwise realize that information is valid. 622 00:49:43,280 --> 00:49:47,520 So here's a cartoon that tries to illustrate that. 623 00:49:47,520 --> 00:49:53,440 It's a group of dogs sitting around the table and he says, or she, or the dog says, can't 624 00:49:53,440 --> 00:49:57,840 you see this isn't a real offer, they're just tossing us a bone. 625 00:49:57,840 --> 00:50:00,720 Well, that's cognitive dissonance. 626 00:50:00,720 --> 00:50:04,840 This is a group of dogs who like spawns, but they're upset because they've been given 627 00:50:04,840 --> 00:50:06,520 a bone. 628 00:50:06,520 --> 00:50:12,400 And so that's one of the cognitive barriers sometimes you deal with in a mediation. 629 00:50:12,400 --> 00:50:15,280 Loss aversion. 630 00:50:15,280 --> 00:50:18,520 This comes up a lot in mediation. 631 00:50:18,520 --> 00:50:27,240 Loss aversion is when we view negatively a proposal that we perceive as a loss, even 632 00:50:27,240 --> 00:50:33,080 if that proposal is actually favorable to us or neutral. 633 00:50:33,080 --> 00:50:35,160 So here's an example. 634 00:50:35,160 --> 00:50:36,640 Which win is ours? 635 00:50:36,640 --> 00:50:39,040 Because the one on the left looks bigger. 636 00:50:39,040 --> 00:50:41,000 Well, win-win, right? 637 00:50:41,000 --> 00:50:44,080 That's the whole concept, win-win. 638 00:50:44,080 --> 00:50:46,400 So that is loss aversion. 639 00:50:46,400 --> 00:50:54,480 She is concerned that we're still going to lose just because our win is a slightly smaller 640 00:50:54,480 --> 00:50:59,680 fund than the other one. 641 00:50:59,680 --> 00:51:00,680 Competitive arousal. 642 00:51:00,680 --> 00:51:03,240 It's exactly how it sounds. 643 00:51:03,240 --> 00:51:08,760 It is when our competitive desire to win overrides everything else. 644 00:51:08,760 --> 00:51:12,400 It doesn't matter what the other side offers. 645 00:51:12,400 --> 00:51:15,240 We must win. 646 00:51:15,240 --> 00:51:18,320 That is what competitive arousal is. 647 00:51:18,320 --> 00:51:21,320 And here's a comic for that. 648 00:51:21,320 --> 00:51:26,800 This is not the kind of out-of-court settlement I had in mind because the other party has 649 00:51:26,800 --> 00:51:31,440 competitive arousal and they ended up in a duel. 650 00:51:31,440 --> 00:51:38,080 Now I will say that one thing that I always look for in a mediation, I'm always trying 651 00:51:38,080 --> 00:51:48,680 to suss out, is this a party or council who will be able to accept a settlement offer from 652 00:51:48,680 --> 00:51:50,400 the other side? 653 00:51:50,400 --> 00:51:58,320 Or will they always need to be the party who proposed whatever the final resolution is? 654 00:51:58,320 --> 00:52:02,120 And that is really a gut reaction. 655 00:52:02,120 --> 00:52:07,040 But it's something to be cognizant of when you're in a mediation. 656 00:52:07,040 --> 00:52:16,160 Because that is a dynamic that sometimes shifts and you may get really close and somebody 657 00:52:16,160 --> 00:52:17,160 says, this is it. 658 00:52:17,160 --> 00:52:18,400 This is as far as I can go. 659 00:52:18,400 --> 00:52:21,440 And the other side says, hey, $1 more. 660 00:52:21,440 --> 00:52:23,480 And the first party is like, no, I'm done. 661 00:52:23,480 --> 00:52:28,760 But the reality is the guy who said $1 more is someone who can never accept an offer from 662 00:52:28,760 --> 00:52:32,320 someone else and has to make a final offer. 663 00:52:32,320 --> 00:52:36,800 And so you want to kind of understand that dynamic and think about it. 664 00:52:36,800 --> 00:52:44,600 And it ties into these cognitive barriers that we have been discussing. 665 00:52:44,600 --> 00:52:50,760 So here's another thing to make sure you're cognizant of as you are doing your final preparation 666 00:52:50,760 --> 00:52:52,800 for the mediation. 667 00:52:52,800 --> 00:52:53,920 Perspectives. 668 00:52:53,920 --> 00:52:56,280 We all bring our own perspective. 669 00:52:56,280 --> 00:53:04,720 We can all have gone through the same experience, seen the same thing, but come away with an 670 00:53:04,720 --> 00:53:10,680 entirely different understanding, perceiving it in a different way. 671 00:53:10,680 --> 00:53:12,200 Parties do it. 672 00:53:12,200 --> 00:53:14,000 Attorneys do it. 673 00:53:14,000 --> 00:53:15,880 Mediators do it too. 674 00:53:15,880 --> 00:53:22,600 So always be aware that that's a possibility, that you may have understood something one 675 00:53:22,600 --> 00:53:31,160 way and be ready and able to say, oh, I understood it this way, but this is actually how that 676 00:53:31,160 --> 00:53:34,240 works or this is what you meant. 677 00:53:34,240 --> 00:53:36,240 Be ready, be flexible. 678 00:53:36,240 --> 00:53:43,840 All right, so now I'm going to take just a minute to talk about what I call the ABCs 679 00:53:43,840 --> 00:53:45,720 of mediation. 680 00:53:45,720 --> 00:53:53,560 So I often say that as a mediator, I utilize the ABCs in mediation. 681 00:53:53,560 --> 00:53:55,440 What does that mean? 682 00:53:55,440 --> 00:54:02,120 That means as mediator, I am analyst, bartender, and chameleon. 683 00:54:02,120 --> 00:54:06,800 So let me take a minute to explain what I mean. 684 00:54:06,800 --> 00:54:13,680 By analyst, I mean that I analyze the information that I've received. 685 00:54:13,680 --> 00:54:15,200 I analyze the facts. 686 00:54:15,200 --> 00:54:17,200 I analyze the law. 687 00:54:17,200 --> 00:54:23,080 But I also analyze the softer things, how I read somebody, what I understand in terms 688 00:54:23,080 --> 00:54:28,840 of their emotional state, what I'm hearing or not hearing in terms of the subtext. 689 00:54:28,840 --> 00:54:31,160 I'm really trying to dig deeper. 690 00:54:31,160 --> 00:54:36,960 I have no psychological training, so I'm not talking about being a psychoanalyst. 691 00:54:36,960 --> 00:54:46,400 I am talking about trying to read the situation, analyzing all of the different impetus that 692 00:54:46,400 --> 00:54:52,560 goes into the litigation and finding a path to resolution. 693 00:54:52,560 --> 00:55:00,040 So to make sure you are using your analytical skills when you're wearing your mediator hat, 694 00:55:00,040 --> 00:55:06,880 both in your preparation and actually during the course of the mediation. 695 00:55:06,880 --> 00:55:07,880 Bartender. 696 00:55:07,880 --> 00:55:08,880 All right. 697 00:55:08,880 --> 00:55:15,320 So I use bartender because of the sort of conventional thinking that people go sit at 698 00:55:15,320 --> 00:55:21,400 a bar and they tell their sub-story and the bartender listens empathically. 699 00:55:21,400 --> 00:55:22,880 That's what this is about. 700 00:55:22,880 --> 00:55:26,760 A big part of being a mediator is listening. 701 00:55:26,760 --> 00:55:33,760 And I've talked about that a lot in this presentation that we need to listen and listen often. 702 00:55:33,760 --> 00:55:35,400 You need to listen to counsel. 703 00:55:35,400 --> 00:55:37,960 You need to listen to the parties. 704 00:55:37,960 --> 00:55:47,280 So when you're actually in the mediation, you need to be prepared to listen to the party, 705 00:55:47,280 --> 00:55:52,840 both parties, all parties, however many parties there may be in the case, whomever needs to 706 00:55:52,840 --> 00:55:58,960 tell their story and however many times they need to tell their story, you have to be prepared 707 00:55:58,960 --> 00:56:00,120 to do that. 708 00:56:00,120 --> 00:56:03,960 You need to be prepared to listen empathically. 709 00:56:03,960 --> 00:56:09,760 I had a case many years ago that involved a really, truly horrific car accident. 710 00:56:09,760 --> 00:56:15,320 And the plaintiff was lucky not only to be alive, but defied all of the odds and was 711 00:56:15,320 --> 00:56:22,960 able to walk again and regain some of his prior level of physical activity. 712 00:56:22,960 --> 00:56:30,960 He started that mediation angry, I mean, enraged angry, because so much had been taken. 713 00:56:30,960 --> 00:56:37,240 He was somebody who had been a long-distance swimmer his entire life. 714 00:56:37,240 --> 00:56:42,720 He was older and he had grandchildren and he had maintained his health through his long-distance 715 00:56:42,720 --> 00:56:43,720 swimming. 716 00:56:43,720 --> 00:56:45,400 He was also a cyclist. 717 00:56:45,400 --> 00:56:51,160 He was in great physical condition when he was in this horrific car accident and it's 718 00:56:51,160 --> 00:56:53,480 a miracle he lived. 719 00:56:53,480 --> 00:57:00,080 No one thought he would walk again, but he did, that he will never ever regain the physical 720 00:57:00,080 --> 00:57:03,720 agility that he had before the accident. 721 00:57:03,720 --> 00:57:07,640 He may never pick up his grandchildren again, etc. 722 00:57:07,640 --> 00:57:14,000 He was enraged at the start of the mediation and he told me his story. 723 00:57:14,000 --> 00:57:21,760 And during the course of the mediation, he told me his story over and over and over. 724 00:57:21,760 --> 00:57:23,600 But you know what changed? 725 00:57:23,600 --> 00:57:26,720 The emotions with the story. 726 00:57:26,720 --> 00:57:38,320 He went from rage to sorrow with tears in his eyes to acceptance and that opened the 727 00:57:38,320 --> 00:57:40,880 door to resolution. 728 00:57:40,880 --> 00:57:46,920 So remember that you need to go into the mediation prepared to be a bartender. 729 00:57:46,920 --> 00:57:53,400 And listen, listen empathically and listen early, listen often. 730 00:57:53,400 --> 00:57:55,400 And a chameleon. 731 00:57:55,400 --> 00:57:59,360 So by chameleon, I mean we have to be prepared to change. 732 00:57:59,360 --> 00:58:05,200 I may behave differently when we're all together, when I'm in a room with one party, when I'm 733 00:58:05,200 --> 00:58:06,840 in a room with another party. 734 00:58:06,840 --> 00:58:10,400 I may behave differently during the course of the day. 735 00:58:10,400 --> 00:58:17,040 For example, I very rarely start out early in a mediation being evaluative. 736 00:58:17,040 --> 00:58:23,080 I usually don't shift to providing any kind of evaluation if I do until later in the day. 737 00:58:23,080 --> 00:58:26,680 I do that in part because I don't know enough. 738 00:58:26,680 --> 00:58:27,880 And I just tell people I'm friend. 739 00:58:27,880 --> 00:58:32,640 I don't know enough yet in order to provide any kind of evaluative input. 740 00:58:32,640 --> 00:58:36,440 But I also do that because I think it's important in the beginning of the mediation for the 741 00:58:36,440 --> 00:58:42,440 parties have the opportunity to talk and less for me to share my views. 742 00:58:42,440 --> 00:58:49,240 So you need to be prepared to be different at different times in the mediation, whether 743 00:58:49,240 --> 00:58:56,240 that is different based on room, party, situation, time, whatever. 744 00:58:56,240 --> 00:58:57,240 Make sure you're flexible. 745 00:58:57,240 --> 00:58:58,880 It's something I've said several times. 746 00:58:58,880 --> 00:59:00,480 Make sure you're flexible. 747 00:59:00,480 --> 00:59:09,480 Make sure you are able to adapt as you go through the mediation. 748 00:59:09,480 --> 00:59:16,440 As you are doing your final preparations for the mediation, really take time not only to 749 00:59:16,440 --> 00:59:21,520 reflect on all the things we've just talked about, but to start thinking about, do a 750 00:59:21,520 --> 00:59:28,920 pre-think around settlement options, settlement constraints, settlement considerations. 751 00:59:28,920 --> 00:59:36,760 Really start thinking through strategies you may want to use in the mediation. 752 00:59:36,760 --> 00:59:44,320 Now this is something that varies significantly by region, by practice area, by subject matter, 753 00:59:44,320 --> 00:59:46,240 by court. 754 00:59:46,240 --> 00:59:52,680 Most of my mediations I prepare in advance a very simple mediated settlement agreement. 755 00:59:52,680 --> 00:59:54,240 There's a whole lot of blanks. 756 00:59:54,240 --> 01:00:00,160 It doesn't have anything for terms, but it has the basic structure for a mediated settlement 757 01:00:00,160 --> 01:00:01,160 agreement. 758 01:00:01,160 --> 01:00:06,720 I do that because in most of my cases the parties expect that I will have something 759 01:00:06,720 --> 01:00:11,520 that we can use to memorialize their settlement even if they're going to later draft more 760 01:00:11,520 --> 01:00:14,000 full-sum settlement documents. 761 01:00:14,000 --> 01:00:17,080 In other jurisdictions this is not done. 762 01:00:17,080 --> 01:00:20,320 There may be ethical guidelines who say you cannot do it. 763 01:00:20,320 --> 01:00:23,400 It may be a choice of the mediator that they will not do it. 764 01:00:23,400 --> 01:00:25,400 It may be a requirement of the court. 765 01:00:25,400 --> 01:00:27,760 It's something you need to understand the dynamics. 766 01:00:27,760 --> 01:00:34,440 But if you're in a situation or in a jurisdiction or a practice area where it's expected, then 767 01:00:34,440 --> 01:00:40,160 make sure you arrive at the mediation with some kind of framework, template, skeletal 768 01:00:40,160 --> 01:00:45,040 structure of a mediated settlement agreement so you can fill in the blanks and be ready 769 01:00:45,040 --> 01:00:46,040 to roll. 770 01:00:46,040 --> 01:00:47,040 All right. 771 01:00:47,040 --> 01:00:49,320 We've done all this prep. 772 01:00:49,320 --> 01:00:51,920 And so now I'm going to sound like your mother. 773 01:00:51,920 --> 01:00:56,880 Make sure the night before the mediation you get a good night's sleep, you eat a healthy 774 01:00:56,880 --> 01:01:01,480 meal, you get some exercise, clear your head. 775 01:01:01,480 --> 01:01:06,880 You want to be fresh and full of energy when you go into that mediation so you can really 776 01:01:06,880 --> 01:01:13,840 focus on helping the parties work through the issues and find their path to resolution. 777 01:01:13,840 --> 01:01:19,080 But remember, you have to tailor everything to the case. 778 01:01:19,080 --> 01:01:21,120 You're going to tailor your preparations. 779 01:01:21,120 --> 01:01:23,160 You're going to tailor the logistics. 780 01:01:23,160 --> 01:01:25,080 You're going to tailor the administrative stuff. 781 01:01:25,080 --> 01:01:29,840 You're going to tailor how you prepare in the final hours for that mediation. 782 01:01:29,840 --> 01:01:35,840 And you're going to tailor the mediation itself to that case, to those parties, to that subject 783 01:01:35,840 --> 01:01:43,760 matter, to the specifics of the unique dispute in front of you. 784 01:01:43,760 --> 01:01:47,160 And remember two things. 785 01:01:47,160 --> 01:01:50,920 One, it's not our choice whether the parties settle. 786 01:01:50,920 --> 01:01:59,280 We are as mediators there to facilitate, to give them the opportunity to open up avenues 787 01:01:59,280 --> 01:02:01,840 for them to find a path to resolution. 788 01:02:01,840 --> 01:02:08,360 It is ultimately their decision if, when, how they settle. 789 01:02:08,360 --> 01:02:14,360 And also remember that the goal of mediation is not for everyone to agree on the facts of 790 01:02:14,360 --> 01:02:15,360 the law. 791 01:02:15,360 --> 01:02:17,520 They don't have to. 792 01:02:17,520 --> 01:02:23,360 The goal of the mediation is for them to agree on a resolution. 793 01:02:23,360 --> 01:02:25,360 All right. 794 01:02:25,360 --> 01:02:31,680 So now we have covered how you plan and prepare so that you're ready to succeed in a mediation 795 01:02:31,680 --> 01:02:39,400 in helping the parties find their path to resolution. 796 01:02:39,400 --> 01:02:46,920 So thank you for joining me for this discussion about steps to prep and strategies for preparing 797 01:02:46,920 --> 01:02:50,440 for mediation and mediation readiness. 798 01:02:50,440 --> 01:02:54,920 I hope you got a lot out of this discussion and I wish you the best of luck with your 799 01:02:54,920 --> 01:02:57,880 mediation practice. 800 01:02:57,880 --> 01:03:00,880 You may be eligible for CLE credit in your state. 801 01:03:00,880 --> 01:03:05,040 Visit bhba.org slash podcasts for more information.