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today.

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Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Rebecca

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Ratliff of JAMS, will guide you through dispute prioritization and management. Let's dive

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in.

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When you're initiating the mediation process as a mediator, and some of you may be aspiring

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mediators and some of you may be experienced mediators, everyone has a different style.

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So I want to stress to you that what we are sharing here in this seminar is my style,

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my perspective, my experience in mediation. And really, I've been involved in the mediation

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process for over 30 years. As I'll mention, I am a former commercial insurance claims

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professional. So I've seen a lot of different subject matters. And insurance touches everything.

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So a lot of what you will hear today is from my experience and knowledge from that field.

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So we're going to jump right into the objectives today that we are teaching and exploring.

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We're going to introduce and discuss the mediation process, introduce the song, and

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maybe teach some new things to others for mediation. And we'll identify some problems

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that may arise during the day in a mediation. We'll explore disagreement management. We'll

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learn how to establish priorities, what that looks like. We'll talk about how to manage

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progress inhibiting issues. As we know, every single case is different. Every party is different.

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The circumstances are different. And so there are lots of situations that can arise. And

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we'll also explore settlement strategies toward the end. And I'll give some tips and some

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tips and strategies maybe from my career. So engaging counsel, when you are chosen as

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a mediator, you want to immediately start communicating. And so initiating the mediation

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process really involves that contact from day one. You want to start establishing rapport.

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And those pre-hearing conversations with counsel are really important to start the conversation.

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It's a good opportunity to begin leveraging the psychology of negotiating. We'll talk

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a lot about influence and the psychology of communication and agreement and negotiation.

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The mediator is the shepherd of the process. So the parties, but the parties control the

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outcome. That's important. Some people ask me what I prefer mediation or arbitration.

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I am a mediator and arbitrator, but honestly, I prefer mediation because it's self-determining.

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And the parties who care most about the case are making the decisions about the outcome.

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So the chosen format of participation for any mediation should reflect a consideration

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of the preferences from the parties, damages severity, emotional factors and risk based

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on the damages, visible and invisible. We know that in dispute resolution, there are

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sometimes damages that you cannot see. They are not readily apparent, but they have a

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very strong bearing on what will happen in negotiation and whether or not a matter can

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be resolved or has to proceed to trial. So you arrange the pre-hearing calls with all

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sides if they will. Sometimes depending on the subject matter or the desire of the parties

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or representatives, they choose not to meet. But I'm a former claims professional by trade

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and I understand the importance of communication from the very start. So you as the mediator

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are responsible for planning logistics for the mediation. And you should be asking the

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preferences of the parties. It's important to induct and format the mediation around

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what the parties want. So setting up effective communications begins before you get to mediation.

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I will tell you that I have my case manager send an essential terms document in a word

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form the night before mediation because I'm an optimist and I'm starting to get them

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to think about resolution before we even get to the table. Most participants that come

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to the mediation table are using some type of psychology whether it's bluffing as simple

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as that or whatever they deem as an effective strategy to get their interest met. So again,

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knowing people the way I do, I have a psychology degree and I'm a risk management professional

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by trade. That was my first life. But I still think joint opening caucus is helpful. I know

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that a lot of parties and lawyers and mediators are moving away from joint openings, but especially

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in insurance matters, I think is very productive unless it will derail the negotiations from

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the beginning. I think it's productive to have those communications jointly so that

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people can have their feel like they're heard and seen. That's why you want to establish

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that before you get to mediation. So again, you're conducting those pre-hearing calls,

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you're discussing logistics even all the way down to lunch. Is it going to be a working

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lunch? You're going to talk about the case dynamics. Hopefully they have sent pre-hearing

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briefs for you as mediator to take a look at their position statements so that you can

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begin to see how they see their case. I want to know how the lawyers see their case and

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how communications have been prior to mediation. Again, sometimes when you're meeting with

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lawyers pre-mediation, they can tell you about client control problems that they can't mention

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when they are in front of their client. So it's important to have those conversations.

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So now you're starting to communicate. You are introducing them to how you mediate your

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style of mediation and process guidelines, how you see it going based on what you know

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already and having read the pre-hearing briefs. So again, format should always be the preference

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of the parties in front of you, but those calls allow for you to understand some case

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dynamics so that you can proceed. So when you're getting to the table at mediation, caucus

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we know is a tool for confidential communications where parties can be honest and straightforward

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and help the mediator guide the process. So this is a confidential process. It is collaborative,

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more collaborative than arbitration and obviously more collaborative than trial where you have

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six or 12 strangers deciding the outcome of the case. So here you're meeting, you decide

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with the parties whether or not the opening caucus will be joint or separate. And again,

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caucus is a tool. Be looking at the caucus process as a tool. I established early on

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that there are no time constraints because then later on when parties or representatives

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start pushing for a close saying they need to be on a plane, I've established in the

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beginning that there are no time constraints and then I'm going to call that back to their

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memory. So again, psychology, I'm using now their sense of integrity to keep them at the

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table because our job as mediators is not to decide the outcome, but it is to influence

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the outcome and it is also to keep them at the table talking. It's important to remember

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again that self determination, cannon of mediation, we do not decide the outcome. We don't have

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a nickel in the dime. And what we're there for is to guide the process. So you have the

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joint opening caucus or separate opening caucus, depending on what the parties want. And then

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you'll begin the private caucusing sessions, which is what we call shuttling from room

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to room. And one of the things that I want to stress here is that a mediator and the

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parties can design how they want this caucus process to go. So this is a basic, what I'm

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offering to you today is basic suggestions for probably the most common format for mediation.

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But generally sometimes the parties are all kept in the same room. That would be more

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in a situation usually where there's an ongoing relationship that you're trying to protect.

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So conciliation or relationship repair, but in a traditional mediation usually there will

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be private caucusing and the mediator is shuttling from room to room. So effective caucusing

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is what I call the business of mediation. You're using your communication skills effectively,

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not just talking, but strategizing. The parties have strategized with council representatives,

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have strategized for how they are going to conduct themselves and make offers or demands.

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And so when you're going from room to room or zoom to zoom as a mediator, having those

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private meetings, you want to make sure that your communications are clear and strategic

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as well. So I do want to say moving parties to the middle seldom ever happens. That's

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aspirational. There's no real such thing as the middle. A case is worth what it settles

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for. We'll talk about that. I teach that to my law students at Howard University School

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of Law. Really, it's about compromise. And however creative you need to be to get to

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that compromise is it's open. It's open for your style. It's open for what is happening

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at the mediation. So the psychology of agreement equals progress. So we want to just keep in

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mind you are looking to progress negotiations at mediation. And there are various ways to

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do that. But effective communication is a key skill. So a little bit about off skills

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and technical skills in the mediation context. Soft skills. That skill is about expression

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of expectation and optimism. The mediator should be the most optimistic person at that

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hearing because you are the only one in all the rooms. The mediator is the only one in

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all the rooms all day. So you constantly express expectation and optimism, express your commitment

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of time. I actually say I have nowhere else to be today. I say that the art of active listening.

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That is a key skill. Showing respect. And you know, we're all human. So we know that

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sometimes things are said and we may think something, but it is, you know, again, we're

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not a party to the matter. So whatever we think, we're neutrals. It doesn't matter what

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we think or how we feel about people. And when you've done this for a long time, you

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have encountered a whole lot of different types of people. We'll talk about that a little

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bit today. But your job is to garner trust and influence next steps. Those are soft skills

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as a mediator. Technical skills are, again, the skills that get it done. So confirm what

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is to be conveyed. Confirm what is confidential. As some people's style, as we know, is to

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say I'm going to share everything unless you tell me it's confidential. And then other

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people's style is I'm going to keep everything confidential and you tell me specifically

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what you want me to convey. Now, at some point, the media will need to make decisions about

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what should be conveyed next and how those messages should be conveyed. And if it's

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confidential, if it's been expressed to you by counsel or the representative as confidential,

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then obviously you need to ask if you can share it because as part of your strategy,

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you believe that at this time, that information would help you as the mediator get the matter

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closer to resolution. So again, timing for messages. Many of us have heard it said the

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right offer at the wrong time is the wrong offer. So we want to make sure that we as

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the mediator, the shepherd of the process that we're paying attention to the timing

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for when messages should be shared or how message maybe should be crafted. You must

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always convey a message accurately and honestly. But there are ways that mediators can be creative

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in sharing those messages. Reality testing is a key skill in mediation. You are the person

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who will test the durability of the positions that has been expressed. Remember, in mediation,

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when these people are before you, they have the same set of facts, but they see them differently.

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So what's important to remember is that you are responsible for knowing the subject matter

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enough to know what questions to ask. And one of those questions is often, what if a

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judge or jury disagrees with you? And when trial is imminent, that question hits a little

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harder to parties in every room because they have to consider, you know, I love my case,

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but maybe a judge or jury would not agree with me on this point or that point. So you

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have to decide the timing for messages, when to convey what to convey, do some reality

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testing, asking questions about how they see it versus how the other side sees it. And

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also timing for transitions from themes in the mediation, maybe that are running through

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the day. There may be themes that come to you from parties about their families. You're

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going to be able to glean what those interests are, what people feel they need, and a compromise

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at mediation by the things they say. So timing and transition is going to be very important

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in order to continue moving towards a compromise. So when you start to communicate, you're getting

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information, you're going to start to identify problems because we are working with the parties

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to resolve those problems. You want to be able to identify what they are and diffuse

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whatever is going on that might be progress inhibiting. The mediator is this facilitator.

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We are facilitators. We are not judges. Even if you are a former judge, that is not what

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mediation is for. And I'm often asked to talk about that to former judges about the job

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really of a mediator because it's hard. They're used to telling people what to do. So it's,

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you know, that's not what mediation is. The self-determination canon is very, very important.

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And it's why mediation is one of the reasons why mediation is a successful way for resolving

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disputes. An effective mediator sets the tone and tempo of the communications at the hearing.

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But you've got to be patient. I'm there all day if I need to be. I have mediated cases

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12 and 13 hours. And it's been said that I had the same energy in that 12th hour that

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I had when the mediation began. I'll tell you it's invigorating work really because

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I really believe that people don't want to be in dispute. People do not. Well, I do have

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a sister who likes actually to, she likes a good fight. But I tell you people really

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don't want to be in dispute. And so we as mediators have to discern the human condition

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as a key skill. So you are paying attention. You're listening. You're asking a lot of questions.

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You're probing. Again, the role of the mediator is a facilitator and an influencer. So it

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is up to the mediator who established that trust, observe herbal and nonverbal communication

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in order to make decisions about how to guide on the next step. So verbal communication

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can be conversations that you observe with the attorney or other people in the room.

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It could also be underlying issues or concerns that they have expressed to you. And it can

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be questions that they ask. So you are paying attention to all of the communication that

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happens in the room. Nonverbal communication plays to personality style, body language,

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facial expressions, and again, interaction with others. Sometimes you can see people

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shoot a look between them. Sometimes people have members of their family or significant

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others with them at mediation. So you want to be aware of the people who are in front

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of you, the parties, but also the people who influence the parties because all of that

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goes into the day you're going to have easy or hard in communicating information, conveying

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messages, influencing the outcome and reaching a settlement. So you are there again to establish

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trust. So do a lot of active listening, again, probing to understand what the motivations

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are of the people who are in front of you. So now we're going to have a little fun.

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I always like to teach about personality styles because personality styles influence

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how people negotiate, what they need, what they want, what is really predominantly their

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motivation. So here is a quadrant, there's four quadrants here. And the descriptions

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are around outgoing and task oriented people, outgoing and people oriented people, people

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who are reserved and task oriented and people who are reserved and people oriented. So

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the disk system, some of you are familiar with this. This is one of the personality

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style assessments. You can actually find this online and do a free one. You can make sure

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you find the one that's free. But what I will say about personality styles is there's no

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good or bad personality style. You are usually a combination of two, maybe three personality

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styles here. You are usually attracted to the opposite. You've heard the saying opposite

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the tract. I'm at to be true in my interactions with people of over 30 years. So the D personality

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style is a dominant direct demanding decisive determined doer personality. Really a person

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that is pretty much fact oriented, data oriented. The I personality styles inspiring, influencing,

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impressive, interested in people interactive. So these are the people who are happy all

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the time pretty much bouncing off the walls. Love the socialites in society. Those are

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the I personalities. They are happy and they want everybody else to be happy as well. Then

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you have the S personality style who is steady, stable, supportive, status quo sensitive and

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a specialist. This person generally, again, they are reserved. They like people, but they

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are reserved. They are hard to read. This personality style can be very hard to read.

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They don't talk a lot. But when they are actively engaged, they are very, very helpful. And

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if you back them into a corner, they usually come out really mean because they prefer to

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be left alone, even though they like people, they want to be supportive, but they don't

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want to be bothered. So that C personality cautious, calculating, competent, compliant,

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contemplative and careful. This is the detail oriented person who is reserved and task oriented.

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And I can usually tell just in a few minutes who is in front of me by watching them interact.

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Again, those verbal and nonverbal communication skills, I'm always watching to glean from

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the people and the interactions that I see who I'm looking at and what their motivations

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are. And these exercises, if this was an in person seminar or if it was an actual seminar

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instead of a webinar, I usually engage people in the meetings. And by the way, they are

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communicating in the exercise. We are about to quietly do. I can usually tell what personality

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style they are. And when people are in front of me in mediation, this is very helpful for

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me to identify the style of personality. It's not because I want to label people. It's because

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I want to understand their motivations and what they need in addition to what they tell

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me they need because we need to be listening. Every person is an individual. And based on

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what their orientation in life is, their backgrounds and experiences, the things they can't see

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and can't unsee and unhear. People are truly individuals. So the exercise that I normally

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do is I ask people to identify a glass bottle of Coca Cola. And you would be surprised those

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four quadrants never disappoint. They are true to the personality styles. Usually the

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I personality, which is the outgoing and people oriented personality quadrant. Those people

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come up with a song or I mean, they have had a full on party. They had the most fun and

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they have come up with the most descriptions of this glass bottle of Coke. And usually

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it is that I personality style that says curvy like a woman, but Coke bottle figure, something

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like that. They are just having a ball that deep personality style may have the least.

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The deep personality style again is direct doer. They want to hear the directions, follow

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the directions and figure out why they did the exercise in the first place. They just

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want to know why are we doing this? What is the value to to this forum? The S personality

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style again, that's the steady personality style supportive. They're going to do exactly

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as I ask, and they are going to come up with answers and they are curious to find out the

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purpose of the exercise, but they are going to follow the directions and it's just that

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simple for them. The C personality style is the cautious calculating personality style.

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And the people from that quadrant generally are very detailed. They don't use just one

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word descriptions. They are going to give me a very, very detailed description and an

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outline and sometimes they may even ask, you know, let me repeat the instructions because

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they are exact. They want to know are we doing this right? We want to we want to get this

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right and we want to do well. So it's just it's always very interesting to observe the

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personalities because obviously this is not an exercise I can do in mediation, but the

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point is knowing what the personality styles are is very, very helpful when they are in

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front of me and we are communicating and trying to probe and craft agreements and understand

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honestly what is what is meant by what is said because remember in the early part of

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the day, depending on the type of damages you are looking at this, depending on the

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basis of the dispute, you may have some pretty emotional people in front of you. And so you

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want to really spend time getting to know those people as well as you can. And sometimes

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I will tell you I am just honest and I'll say we only have a few hours to get to know

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each other. I mean, I'm pretty transparent because what I'm trying to do again is get

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them to trust me and I want to enlist their help in helping me understand how they see

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their dispute and their damages or, you know, the side that's paying hopefully want them

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to understand that I want to understand how they see the case. They know I'm going to

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push back at some point to try to help affect the settlement. But again, I want to know

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the personality styles as best I can in that short amount of time. So motivations influence

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how people negotiate. So here we are back at the quadrants. The D personality style is

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concerned with getting it done. That's their motivation. They are the what people they

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want to know what the I personality style, they want to know who and they want to get

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social recognition. The S personality personality style wants to know the how. Again, these

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are the mechanical people transactional. They care about people, but you know, because

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so they want to get along, but they want to know the how. And then the C personality

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styles concerned with why they want to get it right. So again, the D personality style

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is focused on results. The I personality personality style is focused on enthusiasm. The S personality

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style is focused on support. And the C personality style is focused on accuracy. And then you

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can see the other peripheral factors of characteristics that go into the personality styles. Again,

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the D is going to, you know, they're actively engaged, but you know, they want to their

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focus again as results and you know, enthusiasm, then you got on the people oriented side

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collaboration on the task oriented side, you have challenges. So you want to understand

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a little bit better who you are dealing with and where their motivations come from. And

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in order to do that, you have to do a lot of probing a lot of listening. Really important,

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don't interrupt when they talk. Even though you may have a question, have that pad of

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paper in front of you, write it down. I will tell you, I use this pen. Remember these the

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the blue and white pen with the four colors. I use different colors for the different sides

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who are talking. Another thing is words are important. So because I'm the shepherd of

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the process as a mediator, I'm very careful about the words I use. I never use opposing

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side as a description. I never say that. It's always the other side. I'm very careful about

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again, psychology, how I am planting my influence into the minds of these people who have entrusted

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me for the day with helping them resolve this dispute. And I'm the optimist. I'm the person

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who was in the rooms. And so I want to make sure that every communication that I am offering

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is positive and moving in a direction will help matters be resolved if it's possible.

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And I always believe it's possible. So the art of agreement again, personality styles,

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influence, how people negotiate and in different contexts, just think about even buying a car

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when you go into it helps to understand the context you're in. So obviously there are

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you know, in mediation, different subject matters in that negotiation forum. But if you're

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buying a car, you know that a car salesman, a car dealership wants to sell cars. That

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is why they're in business. So when you go to buy a car, you go at the end of the month,

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they want their car off their inventory. If your credit is good, that's definitely a plus.

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If it's raining during the and during the week, you're going to have make a better deal because

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less people are there during the week there at work. And when it's raining, less people

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feel like coming out to negotiate the price of a car. So those are some really basic,

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you know, in the car buying context, some basic knowledge to have to help you make a

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better deal. A little bit later in the seminar, we'll talk about leverage. But again, that's

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a classic example of leverage is buying a car. They exist for the sole purpose of selling

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cars. And if you are there to buy a car, you will have certain advantages if you understand

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the playing field. So your inclinations in in a mediation context can change over time

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as your knowledge increases. So the more you learn, we'll talk a little bit about cultural

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competency today as well. But the more you learn, the leverage you have or may not have,

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sometimes you think you have leverage you actually don't have. But the more you know,

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it can shape how you negotiate, how you feel about the different concessions that are being

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asked of you reaching an agreement is simply emerging of the information and interest to

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find a mutually agreeable compromise. That's what this is about. It's about compromise.

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And so often when I say is, you know, one side is the defense side, if we're talking

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in just as an example of a two party mediation defense and plaintiff, the defense is going

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to be asked probably to pay more than they plan to pay. And the plaintiff may have to

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accept a little less than they plan to accept. And that's the definition of a good settlement.

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Nobody is supposed to feel as if they won at a mediation. So again, a mediation is is

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collaborative. So now we're going to move to talk a little bit about disagreement management.

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How to manage the options and opportunities that come with this, you know, that come with

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the dispute that exists, whatever that may be. So very simply, ABCs of disagreement management

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are asked, bargain and compromise. So let's let's talk a little bit about that. Because

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as we know, mediators are not magicians. Mediators are again, facilitators of a process. And

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we don't have any authority to make anyone do anything. So it's important to remember

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that if you don't ask, you can't get it. And again, the sides see they have the same amount,

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they have the same facts. They have the same facts, but they see them differently. And

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so skilled lawyers know how to convey messages and obviously leverage the law where where

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it makes sense in order to make the ask of, you know, please, you know, we want you to

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accept this amount or on the plaintiff's side, you know, we want you to pay this amount.

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So what we have to do really as mediators is explore the strengths and weaknesses of

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the positions that are being made. Because again, they have the same set of facts, but

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the bargaining is around how to present those facts and what information to add. Because

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again, one side is trying to incline the other to see it their way, at least to the extent

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that they will make some concessions and agree to get some point resolved. And if you if

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you start to make small point concessions, eventually again, you'll be inclined, the

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psychology of it is that they become inclined to accept larger concessions or to make larger

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concessions. And it really happens over the course of a day. Many of you know that you've

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seen how does it happen that a plaintiff appears at a mediation asking for, you know, $25 million

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and the defense is offering 500,000 and the thing gets settled before the end of the day.

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How does that happen? It happens by communication, by effective caucusing, by compromising, by,

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you know, again, concessions and just, you know, listening and and a great mediator helps.

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So you find points of agreement as the mediator and you are reframing constantly reframing.

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I often I take a lot of notes, even in those pre hearing calls, I'm taking a lot of notes.

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I'm writing down everything they say. And if if you don't have to do that, bless you.

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I write down a lot. I take copious notes because I want to capture really what they said. I

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don't want to to write down my interpretation of it because it is not my case. And I want

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to understand how they see the case. And I know that people have, again, different styles

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and different skills as mediators. But for me, even when I'm taking notes at a seminar,

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I take a lot of notes and people will say, well, you know, they're going to send us the

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slides and I'm like, yeah, but I like to capture my understanding. I can absorb it better if

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I write it down. So again, God bless you if you don't have to. But for those of you who

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are still paper people like me, the dinosaurs, I'm giving you permission to be you. So it's

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OK. So yeah, that bargaining, you have to be the person who is really in charge of the

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bargaining tools. I mean, that's what we are. We're controlling that that tempo and the

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temperature in the room. So we're asking questions, exploring the strengths and weaknesses. We

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want to know, you know, from the parties, you know, tell me more about why you see it

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that way. I heard what you said, but I want to understand why you see it that way. And

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what what is the difference that it will make in your willingness or ability to come to

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an agreement today? So again, you want to explore that, you know, asking, bargaining,

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compromising. You have to ask a lot of questions throughout the day to get people talking so

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that they when they say things out loud, they actually start to hear themselves. And at

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some point during negotiations and during the exchange of information and messages, they

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actually may hear something differently from even themselves. So again, it's also that's

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why it's important to understand who is influencing them. If there's somebody in the room with

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them, then you know, you want to make sure that you're not communicating with a person

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who isn't a party, but that you are including perspective that they have shared that is

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influencing the process. It's important to do that. Because what happens is psychologically,

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you begin to influence them as well. So again, as the mediator, we're paying attention to

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every moving part in that mediation, even the people who are not parties to the matter,

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but have appeared with a party and are influencing them. So you want to make sure that you are

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again, discovering points of agreement and disagreement, but always be revisiting the

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points of agreement, because what you're trying to do is influence, again, the concessions.

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So it's a collaborative environment. You want to continue to stress openness, asking them

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to be open. I mean, in this phase, we're talking about options, openness and opportunity, because

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you want to stress, be open with me, help me understand what you need, what happened,

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how it impacted you. Let them talk about how it impacts you. Another really important point,

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as the mediator, always ask the lawyer or the counsel for permission to communicate directly

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with their client. The reason for that is, again, it's psychology, but it's also the

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right thing to do. They are there with their representatives and mediators do not represent

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anybody. We're neutrals. So I never communicate with clients without asking permission from

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their lawyer. And I will tell you, I speak full in Spanish. There's going to be an interpreter

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there. But if I want to communicate, again, to gain trust from a plaintiff or defend that,

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I'm going to ask permission. And again, there is an interpreter there, but I'm going to

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ask for permission to communicate, even in Spanish, but any direct communication. And

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it's usually it's nothing, it's only, you know, I'm just trying to have a brief conversation,

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check in with them, help them understand that there is some relatability between us. It

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just really temperature down. It's just it's amazing how you as the mediator can really

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influence how people feel and how people think by being able to relate to the but by caring

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enough to relate to them. And even if it is in their native language, but again, always,

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always ask for permission from counsel before communicating directly with a party. So here

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you're pushing collaboration. You're asking what is negotiable and what is not negotiable

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as a mediator, we have to know what is negotiable and what is not negotiable. So again, if

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they are communicating what things are confidential at the time, which I may ask to use later,

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I'm going to write that down with a little C, a red C next to it, which means confidential.

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So when I'm going back through my notes to convey the messages, I don't make a mistake

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and repeat what is intended to be confidential. So it's again, conceding what is negotiable

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and what is not is not a concession, but compromising the entire resolution is going to be based

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on give and take. But one of the things when you are taking them through exercises, where

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they have to agree to disagree, you want to make sure that you are interpreting what is

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meant by what is said, because there's a there's one thing to for people to say something,

385
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but often they can't really articulate what they mean if they're emotional. On the defense

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side, often depending on what kind of case it is, the defense is communicating from the

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lens of a business decision maker. That's just the way it is. And I understand that because

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I, you know, again, I'm a former commercial claims professional, and I understood the business

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decision component of being engaged at mediation. But in addition to that, I've done consulting

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around plaintiff counsel, and I also understand the emotion that exists when a party has been

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harmed. And so it has been very eye opening to be able to to see and hear from both sides,

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you know, what is happening in a person's mind. And and to large extent, sometimes what

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is happening in a person's heart. So here, this is where the work begins. This is where

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the work begins. You've got to ask the hard questions. You've got to you've got to make

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some hard points as the mediator. You're going to be the person who they are depending on

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to make certain points, even those that they don't want to hear at the time. That's our

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job. It is not our job as a mediator to just pass messages back and forth. Again, that's

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where reality testing comes in. So the art of reality testing is asking the questions

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that they have to answer for themselves. I'm not the person to say what a judge or jury

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will do or what will happen at a trial. I don't have a crystal ball. So I don't know

401
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the answer to those questions. And it is outside of my scope to try to offer those kinds of

402
00:44:22,800 --> 00:44:28,120
answers and perspectives and insights. That's not my job. My job is to make sure that they

403
00:44:28,120 --> 00:44:36,160
are thinking about those points and that they make decisions based on what they actually

404
00:44:36,160 --> 00:44:41,280
think could happen. So again, I'm listening to what is said, and I'm repeating and I'm

405
00:44:41,280 --> 00:44:47,880
probing and I'm asking questions so that I can understand what is meant by what was said.

406
00:44:47,880 --> 00:44:57,160
But in addition to that, I'm asking hard questions about how it may be seen if the is to escalate

407
00:44:57,160 --> 00:45:03,880
and what that will mean. Time for their life for the people around them. What difference

408
00:45:03,880 --> 00:45:09,600
in on again, mediators don't give legal or financial advice. That's not our job. That's

409
00:45:09,600 --> 00:45:17,880
a violation of ethics. But I'm asking questions. I am again testing the durability of their

410
00:45:17,880 --> 00:45:24,880
arguments, their position, what they think will happen. And I'm constantly exploring

411
00:45:24,880 --> 00:45:31,240
points of agreement using those points and reframing to fit the party's interest. And

412
00:45:31,240 --> 00:45:38,200
this is just a key skill. Again, this is really where the work is happening at mediation.

413
00:45:38,200 --> 00:45:42,360
It's that that digging in because at some point there's going to be a weeping and gnashing

414
00:45:42,360 --> 00:45:47,600
of teeth. And what I want to make sure that I'm doing is making the pills they have to

415
00:45:47,600 --> 00:45:53,480
swallow a little easier to swallow. So I'm trying to provide the water to help it go

416
00:45:53,480 --> 00:46:00,800
down a little easier. So the collaborating and conceding and compromising, that's all

417
00:46:00,800 --> 00:46:06,200
working together. So it's working together. It's, you know, cooperating. And it's, it's

418
00:46:06,200 --> 00:46:13,120
give and take, as I mentioned before. All right. So establishing priorities is a key

419
00:46:13,120 --> 00:46:18,400
skill because as you're doing all this probing and actually you're you're digging up these

420
00:46:18,400 --> 00:46:25,800
raw emotions, the next thing that is going to take place is the coaching. You know,

421
00:46:25,800 --> 00:46:35,080
now you've you have scratched up all of these emotions and issues to be resolved. And now

422
00:46:35,080 --> 00:46:43,360
it is time to to begin establishing priorities to remind them again, reframing. So now we're

423
00:46:43,360 --> 00:46:48,200
going over the needs and negotiables again. I'm using my knowledge of the personality

424
00:46:48,200 --> 00:46:54,440
styles. I am I'm really working from room to room. If I spend more time in one room,

425
00:46:54,440 --> 00:46:58,580
I'm explaining, you know, I've explained in the opening that if I seem like I'm taking

426
00:46:58,580 --> 00:47:03,560
a lot of time in one room, it is because I'm doing probing. I'm using information that

427
00:47:03,560 --> 00:47:12,440
I have to try to to bring that those points of compromise points of agreement together.

428
00:47:12,440 --> 00:47:18,040
So again, you're exploring the needs based on how what they've been telling you and what

429
00:47:18,040 --> 00:47:23,440
they've said in their position statement and who's maybe in the room with them. And you

430
00:47:23,440 --> 00:47:30,360
know, I'm using everything that I have been given and what I know and what I feel like

431
00:47:30,360 --> 00:47:40,120
I need to know to continue assessing how can we get these parties closer in this, you know,

432
00:47:40,120 --> 00:47:46,960
from dispute to resolution. So it's, you know, it is it is an exercise that sometimes it

433
00:47:46,960 --> 00:47:54,840
is cyclical because you you feel like you've made progress. And then there are times when

434
00:47:54,840 --> 00:48:01,280
some information comes up is revealed. New information, you know, there are things that

435
00:48:01,280 --> 00:48:07,560
can happen during a mediation that are a surprise to everybody. So what, you know, we want to

436
00:48:07,560 --> 00:48:15,120
make sure that we're doing as mediators is keeping our finger on that pulse to make sure

437
00:48:15,120 --> 00:48:21,680
that things don't slip by. Now, one of the things that I've had to do is use I always

438
00:48:21,680 --> 00:48:30,360
have an extra mediator room. And I will pull the representatives aside into the principal's

439
00:48:30,360 --> 00:48:37,000
office is what I call it jokingly at media, but that mediation room. And let me tell you

440
00:48:37,000 --> 00:48:43,960
a little secret for those of you who mediate insurance matters. If you have I'll make a

441
00:48:43,960 --> 00:48:51,160
slight distinction between a commercial adjuster and a personal lines adjuster. Most times

442
00:48:51,160 --> 00:48:56,760
that commercial adjuster is the one with the money. So if you are ignoring that commercial

443
00:48:56,760 --> 00:49:03,480
adjuster, that is a mistake. Because sometimes the mediator is focused on the lawyer, the

444
00:49:03,480 --> 00:49:10,240
defense lawyer. And unless much has changed, and I pretty much know that it has not not

445
00:49:10,240 --> 00:49:16,000
much has changed, that commercial adjuster is a pretty sophisticated negotiator. They

446
00:49:16,000 --> 00:49:21,840
have already set a strategy back at the insurance company. And if you ignore them, they may

447
00:49:21,840 --> 00:49:28,720
not use you again. So something that, you know, a lot of people are happy to hear or

448
00:49:28,720 --> 00:49:35,680
surprised to hear from me is, yeah, don't don't ignore the adjuster, because that is

449
00:49:35,680 --> 00:49:40,200
the person who has been given the charge from the insurance company. And they have authority

450
00:49:40,200 --> 00:49:46,080
many times defense lawyers, they are partners, but they don't always know defense lawyers

451
00:49:46,080 --> 00:49:51,960
will tell you that many times they do not know the authority that has been given it

452
00:49:51,960 --> 00:49:57,400
may be different in a personal lines case. It may be different if there are variables.

453
00:49:57,400 --> 00:50:04,680
So again, just hear what I'm saying from from my lens and my experience. But in personal

454
00:50:04,680 --> 00:50:12,400
lines, many times, the defense lawyer has a little more leeway. But if it's if you're

455
00:50:12,400 --> 00:50:18,400
dealing in a commercial case, a high stakes or severe damages case, the adjuster is the

456
00:50:18,400 --> 00:50:24,160
person. So if you are pulling lawyers out of a room to discuss something, you may want

457
00:50:24,160 --> 00:50:31,560
to drag the adjuster with them, or ask permission, ask how they want to do it. Again, this process

458
00:50:31,560 --> 00:50:37,720
is for the parties and the representatives. It is not the mediators process. And I am

459
00:50:37,720 --> 00:50:44,400
constantly reminding the parties that it is not my show. It is not my process. I am the

460
00:50:44,400 --> 00:50:51,040
shepherd of the process. And that empowers them to remember that the outcome is there.

461
00:50:51,040 --> 00:50:56,760
That's the magic. That's the magic of mediation is that the outcome is their decision. That

462
00:50:56,760 --> 00:51:02,240
is why mediation is successful. And whether it is in person, I will tell you I prefer

463
00:51:02,240 --> 00:51:09,680
in person mediations because that's just my training. But statistics are telling us that

464
00:51:09,680 --> 00:51:15,440
virtual mediations are just as successful. And about 94, I think percent of cases that

465
00:51:15,440 --> 00:51:22,720
go to mediation successfully resolve and do not resolve at mediation. They generally can

466
00:51:22,720 --> 00:51:30,480
resolve through follow-up and continued negotiations after mediation. And that has been my experience

467
00:51:30,480 --> 00:51:39,400
in really my over 30 years of dealing in one area or another with mediation. So again,

468
00:51:39,400 --> 00:51:47,160
you are assessing constantly continuing to assess and reassess the needs and negotiables.

469
00:51:47,160 --> 00:51:51,680
Because remember, people's hearts are changing, hopefully for the better as you move through

470
00:51:51,680 --> 00:51:59,480
the process, people are either worn out or they are digging in or they're strategizing

471
00:51:59,480 --> 00:52:05,560
or they are using psychology. There are many different things going on at mediation. So

472
00:52:05,560 --> 00:52:17,480
you got to know what the parties need to establish those priorities and to get to resolution.

473
00:52:17,480 --> 00:52:23,760
So again, I cannot stress enough, ask a lot of questions, do a lot of probing. The question

474
00:52:23,760 --> 00:52:29,560
that you ask and the answer that you get should be inspiring more questions. You should be

475
00:52:29,560 --> 00:52:37,320
able to think of more questions by the answers that you get. So you want to be sure to be

476
00:52:37,320 --> 00:52:43,760
paying attention to everything that you hear to guide parties towards successful compromises.

477
00:52:43,760 --> 00:52:50,520
And you have to focus on the opportunities for resolution as you're doing that and continue

478
00:52:50,520 --> 00:52:56,080
to say to them, you want to continue saying to them, I believe this can settle. I mean,

479
00:52:56,080 --> 00:53:04,280
if you really believe it can settle and sometimes even when you're not sure, just continue to

480
00:53:04,280 --> 00:53:10,920
plant the idea that it can settle. Because if it doesn't settle at mediation, then it

481
00:53:10,920 --> 00:53:20,880
may be able to settle after mediation. So I'm going to talk some about managing issues

482
00:53:20,880 --> 00:53:30,800
and getting through and maybe what we'll do too is some scenarios around what can happen

483
00:53:30,800 --> 00:53:38,480
at mediation. But when you're managing issues that inhibit the process, you are trying to

484
00:53:38,480 --> 00:53:48,200
make unproductive communications more productive. So personality styles, again, come into play.

485
00:53:48,200 --> 00:53:57,680
Let's talk about this a little bit. This is important. What things can inhibit progress

486
00:53:57,680 --> 00:54:04,520
at mediation? You're dealing with personality styles, you're leveraging communication styles,

487
00:54:04,520 --> 00:54:12,480
you're reframing and reminding. So difficult attorney. So there are sometimes situations

488
00:54:12,480 --> 00:54:21,400
where the attorney is is the piece that is making progress difficult. Sometimes you have

489
00:54:21,400 --> 00:54:28,880
attorneys who are on either side. That's why there's that S there. Attorneys who love

490
00:54:28,880 --> 00:54:36,960
their case or have, you know, they are digging in to the position that they have taken on

491
00:54:36,960 --> 00:54:43,680
a matter. And when that happens, it can be very hard to break through because what happens

492
00:54:43,680 --> 00:54:52,600
is what the other side then starts to dig in as well. So sometimes you move backwards.

493
00:54:52,600 --> 00:55:01,320
So let's say this may be the reason why the decision is made to have separate openings

494
00:55:01,320 --> 00:55:08,400
because maybe the communications prior to getting to mediation have been contentious.

495
00:55:08,400 --> 00:55:13,040
And there hasn't been much progress. There are lots of different reasons why a case is

496
00:55:13,040 --> 00:55:22,520
ripe for mediation. A case may be ripe for mediation because the lawyers cannot make

497
00:55:22,520 --> 00:55:30,120
any progress. Sometimes we know that mediation happens because it's a fact finding mission.

498
00:55:30,120 --> 00:55:34,560
There are lots of different reasons. But what we're finding too is because of the expensive

499
00:55:34,560 --> 00:55:42,080
mediation, some insurance carriers are, you know, slowing down or resisting going to mediation

500
00:55:42,080 --> 00:55:47,440
unless they think that a matter can resolve. But again, there are reasons to go to mediation,

501
00:55:47,440 --> 00:55:52,200
even if a matter is not ready for resolution. Sometimes you want to gather information so

502
00:55:52,200 --> 00:55:57,840
you understand your case better, depending on whether or not trial a trial date has been

503
00:55:57,840 --> 00:56:04,200
set, depending on what kind of judge you have, what venue you're in. I know that what's

504
00:56:04,200 --> 00:56:12,000
become popular now is focus groups. But sometimes attorneys can be the impediment based on how

505
00:56:12,000 --> 00:56:21,320
they are framing the case. And then there can be difficult clients, client control problems.

506
00:56:21,320 --> 00:56:28,120
These different issues, communications, there are so many different types of situations

507
00:56:28,120 --> 00:56:37,360
where a client may have an influencer on a case that really is inhibiting the progress.

508
00:56:37,360 --> 00:56:43,120
It could be people with their own interests in a plaintiff's life, maybe. It could be

509
00:56:43,120 --> 00:56:50,280
commercial. Sometimes there are mediations inside of mediations going on. If you're

510
00:56:50,280 --> 00:56:58,840
talking about a property matter, you may have a dispute around what should be paid, what

511
00:56:58,840 --> 00:57:04,840
is covered, sometimes coverage issues, which is one of the things here is the last bullet

512
00:57:04,840 --> 00:57:11,840
point. But there are different reasons for client issues. In California, that CUMAS

513
00:57:11,840 --> 00:57:19,680
council and insurance matters is really a thing. If there is a coverage reservation

514
00:57:19,680 --> 00:57:28,080
of rights or a coverage problem, that can really create some difficulty in communication

515
00:57:28,080 --> 00:57:37,080
because the insurance company has to pay for separate counsel for the policy holder. So

516
00:57:37,080 --> 00:57:42,560
there are lots of different scenarios where you may have difficult clients. And again,

517
00:57:42,560 --> 00:57:46,560
we've mentioned interfering third party. Sometimes it's a mother. It could be a significant

518
00:57:46,560 --> 00:57:54,920
other. Many of you have seen cases where maybe there's a car accident or some type of, you

519
00:57:54,920 --> 00:58:03,520
know, damages severity. And let's just say a man or woman is injured and they are actually

520
00:58:03,520 --> 00:58:09,400
going through a divorce, but magically their spouse appears as an interested party when

521
00:58:09,400 --> 00:58:17,440
there's a settlement that is being negotiated. There are lots of different things that can

522
00:58:17,440 --> 00:58:25,520
be a factor when you are negotiating these cases. Again, personality clashes. That could

523
00:58:25,520 --> 00:58:32,600
be personality clashes inside the insurance company. It could be a personality clash between

524
00:58:32,600 --> 00:58:40,880
lawyers and clients. It could be co-defendants. It could be co-plagious. Again, sometimes

525
00:58:40,880 --> 00:58:48,000
there are lots of different moving parts that happen and arrive at a mediation table that

526
00:58:48,000 --> 00:58:54,800
are being managed by one side or another. Again, and what's a pop, I will tell you a

527
00:58:54,800 --> 00:59:04,360
popular mechanism that's being used now for varied problems inside mediation are co-mediators.

528
00:59:04,360 --> 00:59:13,320
The team approach to mediation, I'll mention that because it's becoming more popular. The

529
00:59:13,320 --> 00:59:19,160
co-mediators generally work out the fees so that the parties don't. Depending on how big

530
00:59:19,160 --> 00:59:24,280
the case is, sometimes the parties are paying more, but what I'm seeing is co-mediators

531
00:59:24,280 --> 00:59:31,040
are making arrangements between themselves to manage different parts of a mediation

532
00:59:31,040 --> 00:59:38,000
to get it done. That's something to think about because you may need someone to manage

533
00:59:38,000 --> 00:59:45,320
the coverage issues. Another mediator is handling the underlying coverage. Again, coverage matters,

534
00:59:45,320 --> 00:59:52,200
personality, different parties and issues that exist. Sometimes there is a party that

535
00:59:52,200 --> 01:00:01,880
has a foreign presence, so many different types of situations, competing interests from

536
01:00:01,880 --> 01:00:08,640
the plaintiffs or co-plaintiffs or co-defendants. I'll just say, attorneys work in teams, why

537
01:00:08,640 --> 01:00:19,560
not mediators? That is becoming a thing. Co-mediation is becoming more popular. Unrealistic expectations,

538
01:00:19,560 --> 01:00:27,760
that's another reason why sometimes you hit a speed bump and emotions. Sometimes you spend

539
01:00:27,760 --> 01:00:37,280
hours as a mediator trying to work through and manage the emotions that exist. Again,

540
01:00:37,280 --> 01:00:45,920
this can happen in layers. It could be co-plaintiffs. It could be a division of how to apportion

541
01:00:45,920 --> 01:00:56,880
the limits that exist. Sometimes the insurance policy limits are smaller than the damages.

542
01:00:56,880 --> 01:01:04,120
There are these different issues that have to be managed at mediation. The mediator is

543
01:01:04,120 --> 01:01:11,840
responsible for being really the ringmaster in the circus that can be mediation on any

544
01:01:11,840 --> 01:01:20,680
given day. There are also biases, conscious and unconscious. We'll talk a little bit about

545
01:01:20,680 --> 01:01:32,600
cultural competency. The ability to hear and understand issues that exist from people

546
01:01:32,600 --> 01:01:39,280
who come to the table from different cultures is very, very important for a mediator. There

547
01:01:39,280 --> 01:01:46,840
is a lot of training going on about this now because it is so important. Many times, the

548
01:01:46,840 --> 01:01:57,000
mediator as the shepherd of the process isn't in tune with different cultural differences.

549
01:01:57,000 --> 01:02:00,680
One thing that I will say is people in the same family sometimes have different cultures.

550
01:02:00,680 --> 01:02:08,560
Cultures is not just us talking about ethnicity. People have heard and seen over the course

551
01:02:08,560 --> 01:02:16,600
of their life different things that have affected them and framed out who they are. It could

552
01:02:16,600 --> 01:02:23,720
be ethnicity or it could be a professional work environment. It could be family. There

553
01:02:23,720 --> 01:02:31,680
are lots of traumas that are going on in people's lives. Everyone is managing something. I don't

554
01:02:31,680 --> 01:02:37,120
think anybody will disagree that COVID changed everything. Whoever would have guessed that

555
01:02:37,120 --> 01:02:47,280
we could have a worldwide epidemic that would go as long as it did and would have affected

556
01:02:47,280 --> 01:02:53,680
just about everybody in some way. Everyone really was affected in some way by COVID.

557
01:02:53,680 --> 01:02:59,680
That's why we're seeing different disputes arise in employment cases there because of

558
01:02:59,680 --> 01:03:07,040
the workplace. This is an entirely different world. The new normal is still evolving.

559
01:03:07,040 --> 01:03:16,080
There are biases that have emerged. Lots of different, again, mental illness. So many

560
01:03:16,080 --> 01:03:23,640
different classifications now that have been added to diverse classifications that have

561
01:03:23,640 --> 01:03:32,760
to be respected and have to be dealt with and managed at the mediation table. Thank

562
01:03:32,760 --> 01:03:40,240
goodness that there is a forum like mediation to address the issues in conversation so that

563
01:03:40,240 --> 01:03:48,880
people can be seen and heard collaboratively. That is what mediation is for. These biases

564
01:03:48,880 --> 01:03:56,160
that we're seeing, some are conscious and some are unconscious. Generally, I'm sure

565
01:03:56,160 --> 01:04:02,680
many of you have by now been to an unconscious bias training, implicit bias. There are

566
01:04:02,680 --> 01:04:13,680
so many different types, confirmation bias and familiarity. We tend to, so our brains

567
01:04:13,680 --> 01:04:20,480
attract us to things familiar. That's the way the brain works. Our brain processes

568
01:04:20,480 --> 01:04:30,880
trillions of bits of information in a second. We can't process all of that consciously.

569
01:04:30,880 --> 01:04:36,840
So what ends up happening is the amygdala is the part of the brain that attracts us

570
01:04:36,840 --> 01:04:44,080
to the things familiar. We are just biased towards things that we are familiar with.

571
01:04:44,080 --> 01:04:51,720
We are more comfortable with things that we are familiar with. We all have unconscious

572
01:04:51,720 --> 01:04:57,120
or implicit bias. If you don't believe me, take the free Harvard test. Just look up Harvard

573
01:04:57,120 --> 01:05:02,160
implicit bias free test and take that test and you will find out something about yourself

574
01:05:02,160 --> 01:05:13,000
that you may not already know. Biases do inhibit progress in a mediation. It's not all about

575
01:05:13,000 --> 01:05:20,240
race and culture. It could be a bias really about how the facts are seen. There are so

576
01:05:20,240 --> 01:05:30,520
many different interferences that happen in these mediation. So timing could be bad.

577
01:05:30,520 --> 01:05:36,080
Sometimes there are mediation that happen a little too early. Although I will say early

578
01:05:36,080 --> 01:05:44,480
dispute resolution is becoming a welcome mechanism to start talking about issues. Usually there's

579
01:05:44,480 --> 01:05:50,640
an agenda and there is a reason to have those kinds of mediation. There are lots of different

580
01:05:50,640 --> 01:05:59,920
conciliation methods that are an alternative to trial that help to hash out the different

581
01:05:59,920 --> 01:06:06,240
issues that are happening out there in society. Personally or professionally, there is conflict.

582
01:06:06,240 --> 01:06:16,800
I just finished writing an article about cradle to corporation conflict resolution.

583
01:06:16,800 --> 01:06:24,360
Children have conflict. We start dealing with conflict really from the day we are born. Children

584
01:06:24,360 --> 01:06:32,640
are manipulating their parents, babies, infants are manipulating their parents from day one.

585
01:06:32,640 --> 01:06:42,680
Eric Erickson has a theory out there about psychosocial needs. So human beings from the

586
01:06:42,680 --> 01:06:53,840
day they are born start these communications to express a need that they have a basic human

587
01:06:53,840 --> 01:07:01,200
psychological need, but also the conflicts that exist from that need or in concert with

588
01:07:01,200 --> 01:07:10,840
that need from a social perspective. So again, at mediation, we are dealing with conflict

589
01:07:10,840 --> 01:07:18,600
resolution, but conflict resolution is a human experience that happens even when infants

590
01:07:18,600 --> 01:07:23,720
are born. And the doctor for new parents, the doctors tell you run to the baby every

591
01:07:23,720 --> 01:07:29,680
time the baby cries because they need to learn trust. The baby learns trust by the repetition

592
01:07:29,680 --> 01:07:38,960
of them crying and then there being a response to them crying. So it's really a pretty basic,

593
01:07:38,960 --> 01:07:45,360
but it's not something that we really think about when we are thinking about conflict

594
01:07:45,360 --> 01:07:52,520
resolution and expressing need and getting those needs and interests met. So it's really

595
01:07:52,520 --> 01:08:00,360
an important concept that people just really don't think about. And what happens is as

596
01:08:00,360 --> 01:08:10,040
you start to make small concessions and agreements, it influences larger concessions and agreements

597
01:08:10,040 --> 01:08:16,960
because that's the psychology of negotiating the power of suggestion. That is the way it

598
01:08:16,960 --> 01:08:22,160
works. And if you think about it, you can think of different situations where, yeah,

599
01:08:22,160 --> 01:08:29,080
you became more inclined to agree with something else because there was something that started,

600
01:08:29,080 --> 01:08:35,720
something maybe smaller that started all rolling. So this is an important point that I want

601
01:08:35,720 --> 01:08:45,160
to make about listening skills. You can hear someone say something. This also goes back

602
01:08:45,160 --> 01:08:53,160
to what is said versus what is meant. I heard you, but I wasn't listening. Often plaintiffs

603
01:08:53,160 --> 01:09:01,240
cannot articulate what is underlying their anger, frustration or fear. They are emotional.

604
01:09:01,240 --> 01:09:12,920
And so that dynamic can be very difficult to navigate. It's again, human need, psychological

605
01:09:12,920 --> 01:09:22,720
need and then for conflict that exists, that society tells us that we have to address and

606
01:09:22,720 --> 01:09:30,040
resolve. So it's the mediator's job to figure out what it is that is really being said

607
01:09:30,040 --> 01:09:35,800
and ask enough questions to get to the root cause. And it can take hours to even just

608
01:09:35,800 --> 01:09:42,680
get to that point. Sometimes you get frustrated because you started at 9 a.m. and by 2 p.m.

609
01:09:42,680 --> 01:09:48,280
it doesn't feel like it's coming in for a landing yet, but progress has been made if

610
01:09:48,280 --> 01:09:52,800
you just stay the course. Keep them at the table as a mediator. That's our job. Ask

611
01:09:52,800 --> 01:09:58,320
a lot of questions. Do more listening than talking, especially in those first few rounds.

612
01:09:58,320 --> 01:10:06,200
And establish that trust. Do it. You need to do to establish that trust. You're leveraging

613
01:10:06,200 --> 01:10:12,200
how people think about the small wins. If they feel like they're getting small wins,

614
01:10:12,200 --> 01:10:19,720
then the larger wins will come. People tend to become more agreeable. The little things

615
01:10:19,720 --> 01:10:27,040
they agree to turn into the bigger things that they are willing to agree to. So again,

616
01:10:27,040 --> 01:10:34,200
guiding the process of compromise through the use of psychology and the art of agreement.

617
01:10:34,200 --> 01:10:39,720
So as we determine the party's interests, we continue to build our toolbox for understanding

618
01:10:39,720 --> 01:10:45,360
the points in common and being able to remind the parties of those points in common that

619
01:10:45,360 --> 01:10:55,000
can be leveraged towards mediation. Important to remember, concessions begin before mediation

620
01:10:55,000 --> 01:11:01,600
because again, as a mediator, you are the separate or the one guiding the mediation.

621
01:11:01,600 --> 01:11:08,000
Again, using that power of suggestion, this can settle saying things in the, you know,

622
01:11:08,000 --> 01:11:13,240
in the pre-hearing calls to understand their, you know, understanding their position, asking

623
01:11:13,240 --> 01:11:19,520
questions in the pre-hearing call. I ask, what are your soft points? And the reason I ask

624
01:11:19,520 --> 01:11:24,320
that before I get to mediation is because I want them thinking about that before they

625
01:11:24,320 --> 01:11:30,480
get to the table because I have had lawyers say to me, I don't have any, I don't have

626
01:11:30,480 --> 01:11:36,080
any soft points. I don't have any weaknesses. I don't see that I have any weaknesses. And

627
01:11:36,080 --> 01:11:43,240
that is, that's information that actually lets me know that I have some work to do as

628
01:11:43,240 --> 01:11:51,080
the mediator to try to help them understand that there are very, very few cases where

629
01:11:51,080 --> 01:12:00,520
a side doesn't have any soft spots or weaknesses because perception, how information is received

630
01:12:00,520 --> 01:12:08,520
by the fact finder determines whether or not there is a weakness. So again, concessions

631
01:12:08,520 --> 01:12:16,120
begin before mediation and compromises happen one decision at a time. You are as the mediator

632
01:12:16,120 --> 01:12:25,040
continuing to bring up points in common to help the parties come to conclusions about

633
01:12:25,040 --> 01:12:32,720
what can happen, what is possible, what their position is, how that position may be seen

634
01:12:32,720 --> 01:12:38,480
by someone else. And then it's your responsibility as a mediator to affirm and reaffirm the progress

635
01:12:38,480 --> 01:12:46,320
that's been made during those conversations in both rooms and to, again, timing to determine

636
01:12:46,320 --> 01:12:51,240
when is it time to ask if I can share that confidential information? How might I frame

637
01:12:51,240 --> 01:12:58,880
that? How can we frame information to show that there has been progress? If they're still

638
01:12:58,880 --> 01:13:04,600
moving, those numbers are moving closer, even if the increments are small, any movement

639
01:13:04,600 --> 01:13:14,680
is a win. So going to talk about settlement strategies and closing, how do you get to

640
01:13:14,680 --> 01:13:23,840
the point where you are closing? What does that look like when you are talking to the

641
01:13:23,840 --> 01:13:31,320
parties and you are influencing those compromises and those concessions and you are addressing

642
01:13:31,320 --> 01:13:37,840
biases that may exist and you're doing all this reality testing, honing in on points

643
01:13:37,840 --> 01:13:46,120
of agreement so that they can collaboratively make settlement decisions, dealing with setbacks.

644
01:13:46,120 --> 01:13:53,280
We talked about that, managing issues that can slow things down or seem to halt the progress

645
01:13:53,280 --> 01:14:02,680
of negotiations at mediation. And our goal is to turn those concessions to agreements.

646
01:14:02,680 --> 01:14:11,960
So now is the time where you are focused on, again, points of agreement. You've worked

647
01:14:11,960 --> 01:14:21,480
through a lot of what would inhibit the progress, but now you're focused on the agreement points,

648
01:14:21,480 --> 01:14:28,160
you are framing out the messages and your goal is to finish, you're finishing. So when

649
01:14:28,160 --> 01:14:32,800
I say at the bottom, use the mediator room, the S.D.A.P. principles office that I was

650
01:14:32,800 --> 01:14:39,560
talking about, sometimes I have to, I'm not ashamed to admit that sometimes I have to

651
01:14:39,560 --> 01:14:44,520
think for a minute. I just need a minute, something has happened, there's been a setback,

652
01:14:44,520 --> 01:14:50,800
there's been a message that may be a hard message that I need to communicate and figure

653
01:14:50,800 --> 01:14:56,160
out how to do that. And I just need a few quiet moments. Don't be afraid to do that

654
01:14:56,160 --> 01:15:03,920
because what happens if you become frustrated, what happens to the process, it can get derailed.

655
01:15:03,920 --> 01:15:09,760
And I am never the first person to say, we're done for the day ever as a mediator. It is

656
01:15:09,760 --> 01:15:17,960
our job to keep them at the table. So in complex disputes, there can be mediations inside the

657
01:15:17,960 --> 01:15:26,560
mediation I mentioned to you. Those things can be with personal counsel or CUMAS counsel,

658
01:15:26,560 --> 01:15:34,720
they can be again, co-defendants, there can be coverage problems, co-plaintiffs, where

659
01:15:34,720 --> 01:15:41,720
there are disagreements going on. Hopefully the mediation isn't happening before you figure

660
01:15:41,720 --> 01:15:48,560
out that there are competing interests and you need to separate maybe parties into different

661
01:15:48,560 --> 01:15:53,160
rooms because sometimes they start off in different rooms. If you have co-plaintiffs

662
01:15:53,160 --> 01:15:56,880
with different interests, you know that hopefully the counsel should know that and they should

663
01:15:56,880 --> 01:16:02,080
be different. Sometimes it's the same counsel, but if there's a conflict, there would be

664
01:16:02,080 --> 01:16:09,480
different counsel there. But again, coverage issues, personality clashes, apportionment

665
01:16:09,480 --> 01:16:15,600
challenges, sometimes there's not enough money. If you're dealing with an insurance matter,

666
01:16:15,600 --> 01:16:22,920
for instance, and you've got $500,000 worth of damage, but you only have $100,000 worth

667
01:16:22,920 --> 01:16:32,360
of limits. So there can be problems like that that just may not make it easy to settle a

668
01:16:32,360 --> 01:16:39,760
case. But people will have to, unless there are punitive issues and the trial is imminent,

669
01:16:39,760 --> 01:16:48,440
there are lots of different scenarios where there could be a difficulty getting it settled

670
01:16:48,440 --> 01:16:52,000
or it actually gets settled because people are motivated to just go ahead and get it

671
01:16:52,000 --> 01:16:58,200
done and not take the gamble at trial. Trial is always a risk. Again, at trial, if you

672
01:16:58,200 --> 01:17:05,560
have a jury of six to 12 people telling you what to do with your case and they are not

673
01:17:05,560 --> 01:17:13,160
qualified to decide that case for the parties. And that is something that I am constantly

674
01:17:13,160 --> 01:17:21,280
hammering away at when I'm in the phase where we're trying to bring it in for a settlement.

675
01:17:21,280 --> 01:17:27,680
I have been known to say, remember, because I'm trying to influence it, I'm the only person

676
01:17:27,680 --> 01:17:32,440
in all the rooms. I'm the only person that's been in all the rooms today. And you just

677
01:17:32,440 --> 01:17:41,080
see this light bulb come on sometimes because they realize that, yeah, okay, she knows what

678
01:17:41,080 --> 01:17:47,480
the other side has said, even if she has been unable to share everything. And again, you

679
01:17:47,480 --> 01:17:54,280
can use the mediated room to have a private thought and strategize yourself or sometimes

680
01:17:54,280 --> 01:18:02,200
counsel are speaking two different languages and you need to bring them into a room where

681
01:18:02,200 --> 01:18:08,240
you say, you know, tell tell tell this other lawyer what you said to me, you know, because

682
01:18:08,240 --> 01:18:13,880
sometimes as the mediator, because I'm in, you know, all the rooms, I'm hearing some

683
01:18:13,880 --> 01:18:23,160
disconnect and I know that that disconnect could be bad timing or it could be some misinformation

684
01:18:23,160 --> 01:18:29,720
that just has had a misfire. And so it's my responsibility to make sure that I explore

685
01:18:29,720 --> 01:18:42,520
every single angle that might inhibit progress. So one of the things I'll mention when we're

686
01:18:42,520 --> 01:18:49,360
when we're going, you know, through this process is adjourned versus impasse. So that's down

687
01:18:49,360 --> 01:18:53,080
in the bullet points, but I want to I want to make this point because it's another point

688
01:18:53,080 --> 01:19:00,960
at leveraging psychology. Unless they make me, I don't declare impasse. I will say the

689
01:19:00,960 --> 01:19:08,800
mediation is adjourned. And I offer myself for follow up for a reasonable amount of time.

690
01:19:08,800 --> 01:19:13,440
That's the way you get more business by not nickeling and diming them. If you really feel

691
01:19:13,440 --> 01:19:18,480
like the matter can settle, you offer yourself and you follow up with an email. Don't just

692
01:19:18,480 --> 01:19:26,840
offer yourself and then disappear because follow up can actually be very fruitful. So I'll

693
01:19:26,840 --> 01:19:34,720
say again, keep them at the table. Do not take results personally. You don't have a

694
01:19:34,720 --> 01:19:42,240
stake in the case as the mediator. We are not decision makers. We are facilitators. And

695
01:19:42,240 --> 01:19:49,360
we take that very seriously by conducting the negotiations. You know, the way we do staying

696
01:19:49,360 --> 01:19:55,440
involved. Don't be the first one to give up guiding them, crafting messages, making sure

697
01:19:55,440 --> 01:20:01,720
that you don't share confidential information. But if it does not settle, it is not a failure

698
01:20:01,720 --> 01:20:06,240
on your part unless you didn't try to keep them at the table. Because I have had people

699
01:20:06,240 --> 01:20:14,120
say, I think we're done. We're leaving. And then I'm able to influence them to stay. And

700
01:20:14,120 --> 01:20:20,200
I'm a former adjuster. So I'm a claims professional whisperer. You know, I'm able to talk to a

701
01:20:20,200 --> 01:20:24,920
colleague and try to, you know, get them to stay at the table. There are different ways

702
01:20:24,920 --> 01:20:33,360
of keeping the parties or people who are decision makers engaged. But I don't take the results

703
01:20:33,360 --> 01:20:39,200
personally if it doesn't settle, because I know that I have done everything possible

704
01:20:39,200 --> 01:20:45,520
to keep them at the table. We cannot make them stay at the table. But I use words like

705
01:20:45,520 --> 01:20:55,320
because words matter. Please reconsider. Please consider this. Again, I'm asking them to cooperate

706
01:20:55,320 --> 01:21:02,080
with my idea for how the continuation can occur. So again, I don't have any authority

707
01:21:02,080 --> 01:21:10,320
to make them stay. But the power of suggestion is really, it really is a thing. But you have

708
01:21:10,320 --> 01:21:15,840
to have the courage to do it. And you, you know, ask them again, that may be, you know,

709
01:21:15,840 --> 01:21:20,360
when you see things falling apart, that may be when you go into the mediator room and

710
01:21:20,360 --> 01:21:26,480
just think quietly about what you should do next to keep them at the table. Help parties

711
01:21:26,480 --> 01:21:31,760
focused, focused on the points in common throughout the mediation. You've heard me say that over

712
01:21:31,760 --> 01:21:38,680
and over again, because again, we are influencers, we are the facilitators, but we're not decision

713
01:21:38,680 --> 01:21:44,160
makers. We are the optimists in the room, though. So I'm the person who is going to

714
01:21:44,160 --> 01:21:49,440
make that suggestion continually for, well, this is what you agreed on this, though, we're

715
01:21:49,440 --> 01:21:55,440
making progress. So I keep affirming that we are making progress. If there is a compliment

716
01:21:55,440 --> 01:22:01,480
to be paid from one room to the other, I am the person who is I'm the conduit. I'm the

717
01:22:01,480 --> 01:22:07,440
person making that, you know, Mr. Amiz is so-and-so. The lawyer, you know, said that

718
01:22:07,440 --> 01:22:14,880
you presented very well at your deposition. I mean, whatever I can say again, to influence

719
01:22:14,880 --> 01:22:22,320
goodwill, we are the goodwill ambassadors. We are the facilitators. We are the shepherds

720
01:22:22,320 --> 01:22:28,600
of the process. So whatever I can do throughout the day, I am doing all those things that

721
01:22:28,600 --> 01:22:35,040
I can think of to make sure that people feel like, you know, this is not personal. This

722
01:22:35,040 --> 01:22:41,720
is a business decision. They understand they are hearing good faith. And, you know, just

723
01:22:41,720 --> 01:22:48,920
to convey those messages of goodwill, that's our job. Never embarrass an attorney in front

724
01:22:48,920 --> 01:22:56,080
of their client. Sometimes I know that our colleagues are inclined, you want to fix something.

725
01:22:56,080 --> 01:23:00,600
That's not our job. That's not our role. It's outside the scope. You know, to fix the

726
01:23:00,600 --> 01:23:05,960
I can see this attorney was not prepared. I can see that this attorney doesn't know

727
01:23:05,960 --> 01:23:11,200
the case. Maybe it's a partner and the associate really has worked on the case. And now the

728
01:23:11,200 --> 01:23:19,960
partner appears at mediation. It is very unfortunate, but that is not our role. And that as a mediator

729
01:23:19,960 --> 01:23:29,240
will will get you talked about negatively. And it may prohibit it. It may be the thing

730
01:23:29,240 --> 01:23:35,000
that makes them not call you again. So again, a mediator is a neutral. We don't advocate

731
01:23:35,000 --> 01:23:40,040
for any particular side. And we definitely don't take over people's clients because we

732
01:23:40,040 --> 01:23:47,720
see deficiencies in the lawyers. It is our role to manage the process and not the people.

733
01:23:47,720 --> 01:23:59,560
I cannot make that point any stronger than to say, be very, very careful of your inclinations

734
01:23:59,560 --> 01:24:07,760
to take control of something that you think is a miss. That is not our role. And it can

735
01:24:07,760 --> 01:24:13,360
be borderline and ethics violation. So be very, very careful about that. And I know,

736
01:24:13,360 --> 01:24:19,840
you know, people are tempted, mediators can be tempted. And sometimes it's sympathy. But

737
01:24:19,840 --> 01:24:25,800
we have to use emotional intelligence as mediators and then stay in the lane that we're in as

738
01:24:25,800 --> 01:24:32,200
facilitator. So again, adjourn versus impasse. Psychologically, it just does something. It

739
01:24:32,200 --> 01:24:42,080
just it is a very effective way to keep them engaged and to keep parties believing that

740
01:24:42,080 --> 01:24:46,840
it's still possible that this might resolve at some point. Now, if trial is imminent,

741
01:24:46,840 --> 01:24:53,360
that's different, maybe depending on their motivations. Again, what do they need? What

742
01:24:53,360 --> 01:25:00,600
do they want? But that is why the focus now is on, you know, what they need, what is going

743
01:25:00,600 --> 01:25:09,200
on in their lives. And I will also say, yeah, the follow up, I've made that point, follow

744
01:25:09,200 --> 01:25:15,120
up with the attorneys if the case doesn't settle and never if it does settle, never

745
01:25:15,120 --> 01:25:24,400
leave the settlement table without a signed agreement. People go to Bible class or wherever

746
01:25:24,400 --> 01:25:30,240
they go and talk to people, they go to dinner with friends. And if you don't have a signed

747
01:25:30,240 --> 01:25:35,800
agreement of essential terms, it's not a I'm not speaking of a release, but a signed degree.

748
01:25:35,800 --> 01:25:43,000
That's why I sent it the night before. If they don't have an agreement, that thing can

749
01:25:43,000 --> 01:25:50,320
fall apart. And then you are scrambling to get people to get the parties to agree. They

750
01:25:50,320 --> 01:25:55,080
go, they look at the file, they find something else. And then, you know, you don't have that

751
01:25:55,080 --> 01:26:03,040
agreement. I never, ever, ever leave a settlement table without a signed agreement if that case

752
01:26:03,040 --> 01:26:11,160
has settled ever. And again, I've said before, no one is supposed to feel as if they won.

753
01:26:11,160 --> 01:26:15,960
Nobody's supposed to feel as if they won. So while, you know, we're we're doing the

754
01:26:15,960 --> 01:26:22,640
framing, you know, we're focusing on points in common now. We are we have used the caucus

755
01:26:22,640 --> 01:26:29,440
process to create terms for settlement. If it settles, we are using the power of suggestion

756
01:26:29,440 --> 01:26:37,880
in psychology. And then there are different ways. There are different ways to come to

757
01:26:37,880 --> 01:26:45,600
an agreement. Sometimes there is I want to make this point is just a huge point that

758
01:26:45,600 --> 01:26:53,880
we that we must make self determination. So there are different ways that you can influence

759
01:26:53,880 --> 01:27:01,360
as the mediator how the case is going to be, you know, what the terms of settlement are.

760
01:27:01,360 --> 01:27:07,080
Sometimes it's brackets. So a very basic what I have figured out is that some lawyers don't

761
01:27:07,080 --> 01:27:13,640
actually understand the use of brackets. Brackets have to be used at the right time. Early in

762
01:27:13,640 --> 01:27:19,560
the mediation is not is never the right time. Well, I shouldn't say never. I guess it depends

763
01:27:19,560 --> 01:27:25,040
on how you come in and what what the demands and offers are. So I'll take that back. I

764
01:27:25,040 --> 01:27:34,320
won't say never. But very rarely is a bracket effective in the beginning at mediation. So

765
01:27:34,320 --> 01:27:40,000
the bracket can be I'll just use a really simple example. It is a high low, basically,

766
01:27:40,000 --> 01:27:48,840
it's a high low offer to move negotiations along. There have been concrete offers. But

767
01:27:48,840 --> 01:27:58,000
one side said, let's just say the defense side says we will come up to 100. I'm just

768
01:27:58,000 --> 01:28:04,280
going to use really simple numbers. And so is not to confuse anybody. We will come up

769
01:28:04,280 --> 01:28:12,600
to $100. If the plaintiff will come down in their demand to 300. So our offer will be

770
01:28:12,600 --> 01:28:24,160
conditionally $100. If the plaintiff will come to $300. Now, the indication there is

771
01:28:24,160 --> 01:28:32,600
100 plus 300 is $400. And most people will read that most lawyers will read that as a

772
01:28:32,600 --> 01:28:39,640
midpoint of 200. So you take the average. So defense is offering 100. If the plaintiff

773
01:28:39,640 --> 01:28:47,000
will demand 300, like come come from 800,000 down to 300. We want to cut to the chase.

774
01:28:47,000 --> 01:28:56,240
$400 total divided by two is $200. So the the indication is that there is a midpoint

775
01:28:56,240 --> 01:29:03,800
where you know the signal is that the midpoint it can settle at $200. Now, that is a conditional

776
01:29:03,800 --> 01:29:13,000
offer. But if it is accepted by the other side, those are the new numbers 100 for the

777
01:29:13,000 --> 01:29:21,520
defense offer and 300 for the plaintiff's demand. Now, the message that might be delivered

778
01:29:21,520 --> 01:29:29,800
with such an offer of a bracket might be tell them not to focus on the midpoint. But they

779
01:29:29,800 --> 01:29:38,000
always do. No matter what you say, they are they're going to focus on that $200 midpoint.

780
01:29:38,000 --> 01:29:47,160
Defense might ideally want to pay 150 or 180. But you do kind of you really have to do after

781
01:29:47,160 --> 01:29:53,880
that some incremental signaling to indicate that 200 is not the number because once you

782
01:29:53,880 --> 01:30:02,760
have indicated that midpoint, then you are you know, you might be stuck with that. Or

783
01:30:02,760 --> 01:30:08,240
you're going to have to do a lot of work in communicating that that that 200 is absolutely

784
01:30:08,240 --> 01:30:15,960
not the number. So some that that's bracketing. Some people love it and some people hate it.

785
01:30:15,960 --> 01:30:22,000
I think it can be effective depending on when it is introduced in negotiations. There is

786
01:30:22,000 --> 01:30:29,200
also pure midpoint signaling, which sometimes happens from the very beginning. So it's not

787
01:30:29,200 --> 01:30:38,040
bracketing, but based on the the counter number that is given by the defense or the plaintiff,

788
01:30:38,040 --> 01:30:43,320
there can be a signaling. Maybe it's a four hour mediation, maybe it's an eight hour mediation,

789
01:30:43,320 --> 01:30:49,160
but there can be signaling really from almost the beginning that a certain number is where

790
01:30:49,160 --> 01:30:57,640
they are planning to end up. Many times it is a signal by the plaintiff lawyer. But there

791
01:30:57,640 --> 01:31:03,760
are also times when the defense is also signaling a number that may happen halfway through the

792
01:31:03,760 --> 01:31:11,080
day. It could happen from the beginning. But it is important to know that this signaling

793
01:31:11,080 --> 01:31:19,080
can happen and is based on it's all mathematical. So whatever numbers are being demanded or

794
01:31:19,080 --> 01:31:26,040
offered, the counter is indicating somewhere in a vicinity of the number that they plan

795
01:31:26,040 --> 01:31:36,000
to pay or or off to offer or to take. So split the difference is a this usually a tactic

796
01:31:36,000 --> 01:31:44,400
that happens at the end. If you know, you get to a number and so for example, my original

797
01:31:44,400 --> 01:31:54,040
example of a bracket occurs and the numbers are just not it's not 200. The number that

798
01:31:54,040 --> 01:32:02,000
the defense side, for instance, is willing to pay is not 200. Whatever numbers are being

799
01:32:02,000 --> 01:32:09,480
fought over at the point where maybe another round or two has happened after the bracket.

800
01:32:09,480 --> 01:32:13,600
Sometimes the parties just agree to split the difference. And then that's the number

801
01:32:13,600 --> 01:32:20,440
for settlement. But it's an agreement. So one of the concepts that I kind of hinted

802
01:32:20,440 --> 01:32:29,600
at was anchoring, which is a common term that people or parties use is they start they kind

803
01:32:29,600 --> 01:32:37,080
of anchor at a number or an area or range really from the beginning at the mediation.

804
01:32:37,080 --> 01:32:42,200
And they just they ride that same messaging throughout. So it's kind of the same concept

805
01:32:42,200 --> 01:32:48,800
as as a midpoint that could be a number that is used for anchoring. But it is it is a number

806
01:32:48,800 --> 01:32:57,280
that is being used by one or the other side. And it is if that's the consistent message

807
01:32:57,280 --> 01:33:02,600
throughout they just you know want to send that consistent message. And that's those

808
01:33:02,600 --> 01:33:10,160
are these are basic explanations of these concepts. Leverage is also an important concept

809
01:33:10,160 --> 01:33:19,360
to to think about and remember leverage may exist or it may not exist. It's timing focused.

810
01:33:19,360 --> 01:33:28,320
It can be a messaging that is that is sent or offer that is made or demand that is made

811
01:33:28,320 --> 01:33:34,040
based on your thought that the other side is motivated by something that they may or

812
01:33:34,040 --> 01:33:40,040
may not be motivated by. So you're using leverage that you think you have. It could be time.

813
01:33:40,040 --> 01:33:47,280
Maybe the trial is coming up. It's a Friday mediation and trial is coming up on Monday.

814
01:33:47,280 --> 01:33:53,360
And so the side that really feels like they have the upper hand maybe there is a motion

815
01:33:53,360 --> 01:33:59,840
pending that the judge is going to decide on right before trial depending on how you

816
01:33:59,840 --> 01:34:07,360
know procedurally things have happened. But there could be motivation to try to get it

817
01:34:07,360 --> 01:34:14,840
resolved at mediation because one side or the other or both sides are concerned about

818
01:34:14,840 --> 01:34:21,560
emotion that is pending what's going to happen or the you know picking the jury. There could

819
01:34:21,560 --> 01:34:27,920
just be so many reasons why one side feels like they have leverage. They may use the

820
01:34:27,920 --> 01:34:36,520
principle of scarcity. It could be that there is a limited again. Co-plaintiffs more damages

821
01:34:36,520 --> 01:34:44,080
than money. And sometimes if you have co-plaintiffs a leverage can be used one plaintiff against

822
01:34:44,080 --> 01:34:52,680
the other by the defense by settling out or offering to settle out with one party and

823
01:34:52,680 --> 01:34:58,880
leaving the other party in and trial may be imminent. But it's again these are psychological

824
01:34:58,880 --> 01:35:06,760
games as well. So it's you know tactics to try to get what you want whatever side you're

825
01:35:06,760 --> 01:35:16,720
on you want to incline the other side to do by some pressure tactic in leverage. You know

826
01:35:16,720 --> 01:35:23,160
you're trying to get to incline them to to go along with what you are offering or what

827
01:35:23,160 --> 01:35:31,800
you are demanding. So these are ways that a matter can be brought to to a finish brought

828
01:35:31,800 --> 01:35:41,400
to a close. And during that time the mediator has the responsibility of making sure that

829
01:35:41,400 --> 01:35:46,440
you know the communications are being made that it's communications are consistent that

830
01:35:46,440 --> 01:35:51,640
they are understood that everybody sometimes you're listening as the mediator and you can

831
01:35:51,640 --> 01:36:00,440
tell that people don't understand maybe the impacts again more reality testing these these

832
01:36:00,440 --> 01:36:06,800
skill sets from the mediator go in cycles through the phases of mediation and negotiation.

833
01:36:06,800 --> 01:36:14,920
So you must always you know keep in mind that it's our job as the mediators to make sure

834
01:36:14,920 --> 01:36:21,920
that everybody understands what's going on all time. So and not stress enough a case

835
01:36:21,920 --> 01:36:25,400
is worth what it settles for. I said that early on the mediation I teach that to my

836
01:36:25,400 --> 01:36:33,480
class and Howard Law. Mediation is is a vehicle. And what's important in what should motivate

837
01:36:33,480 --> 01:36:40,360
us as mediators is that you never really know what will get the parties to arrive at the

838
01:36:40,360 --> 01:36:48,240
same spot on that journey. Again, mediation is a vehicle. So I never assume I was taught

839
01:36:48,240 --> 01:36:55,120
never assume anything. It's really important to understand that this process belongs to

840
01:36:55,120 --> 01:37:03,240
the parties and the outcome belongs to the parties. And I am a facilitator who has been

841
01:37:03,240 --> 01:37:10,640
invited and selected to take them through this usher them through this process and to

842
01:37:10,640 --> 01:37:19,360
try to help them see the points in common and to compromise on those points in common.

843
01:37:19,360 --> 01:37:28,880
So again, the art of affirming and reaffirming and being creative to try different different

844
01:37:28,880 --> 01:37:36,360
things in order to get them to settle. I want to make sure that I say this to when you are

845
01:37:36,360 --> 01:37:44,520
dealing with different parties, again, back to cultural competency. Sometimes what will

846
01:37:44,520 --> 01:37:53,360
bring that matter to conclusion is again, something that they need that you cannot see.

847
01:37:53,360 --> 01:38:00,320
And that is why it's so important to ask a lot of questions to try to understand how

848
01:38:00,320 --> 01:38:08,800
a matter has impacted them personally, not just, you know, depending, you know, obviously,

849
01:38:08,800 --> 01:38:13,280
if it's an employment case, then we're talking about, you know, personal and professional,

850
01:38:13,280 --> 01:38:18,080
probably implications, but also in, you know, in a personal injury case, for instance, or

851
01:38:18,080 --> 01:38:24,120
bodily injury, which is the terminology used by insurance companies for personal injury

852
01:38:24,120 --> 01:38:30,160
and bodily injury are one and the same, because an insurance policy refers to bodily injury

853
01:38:30,160 --> 01:38:38,360
as, you know, bodily physical damages. Personal injury is in the insurance policy is libel

854
01:38:38,360 --> 01:38:43,080
and slander, you know, that's a personal defamation. That's what personal injury is by insurance

855
01:38:43,080 --> 01:38:51,760
terms. But depending on the type of damages that you're dealing with and how it has impacted

856
01:38:51,760 --> 01:38:58,800
someone's life and what that means to how they to how they live and it could be ethnic

857
01:38:58,800 --> 01:39:08,600
culture. Those are all motivators that you may or may not hear about. And so you have

858
01:39:08,600 --> 01:39:16,200
to be paying attention, again, to the different interactions that occur at the mediation table

859
01:39:16,200 --> 01:39:25,000
and the different things that are being said. So when you're finalizing settlement terms,

860
01:39:25,000 --> 01:39:33,880
know that everything that's been asked for or included has to, you know, has a personal,

861
01:39:33,880 --> 01:39:42,000
has a very personal implication or indication of, you know, what that person needs going

862
01:39:42,000 --> 01:39:48,640
forward. And, you know, everybody's supposed to feel equally uncomfortable. No one is supposed

863
01:39:48,640 --> 01:39:55,640
to feel like they won at mediation. So it's important to keep that in mind. We are going

864
01:39:55,640 --> 01:40:01,240
to have some questions and answers, but I want to talk a little bit before we get to

865
01:40:01,240 --> 01:40:14,280
that about some of the scenarios that happen at mediation and how how mediators react or

866
01:40:14,280 --> 01:40:23,520
or don't react to scenarios. If you have, for instance, an insurance matter that will

867
01:40:23,520 --> 01:40:29,560
insurance touches everything. So it could be medical malpractice. I'll give an example

868
01:40:29,560 --> 01:40:39,920
of medical malpractice and how sometimes mediators are called in to manage some of the the issues

869
01:40:39,920 --> 01:40:50,760
that happen in a in a mediation that involves medical malpractice. You could have a variety

870
01:40:50,760 --> 01:41:01,800
of doctors and now, you know, there are concerns around the tort reform in different states

871
01:41:01,800 --> 01:41:08,720
and you know, how mediators manage, I guess I said react, but how mediators manage the

872
01:41:08,720 --> 01:41:15,960
various moving parts in these different types of subject matters and how mediators really

873
01:41:15,960 --> 01:41:24,640
should be subject matter experts to know what is what questions to ask and how how to manage.

874
01:41:24,640 --> 01:41:32,000
So I'll give an example on a medical malpractice case. So in medical malpractice cases, many

875
01:41:32,000 --> 01:41:37,240
of you know that you have there has to be in order for litigation to even be filed,

876
01:41:37,240 --> 01:41:46,000
there has to be a an affidavit signed by whatever doctor is is allegedly negligent. There has

877
01:41:46,000 --> 01:41:52,440
to be a doctor in the same discipline, the same area of medicine that writes an affidavit

878
01:41:52,440 --> 01:41:57,160
for the intent to sue. Medical malpractice cases don't happen and litigate don't get

879
01:41:57,160 --> 01:42:04,320
litigated initially in the same way that personal injury cases or bodily injury cases do. So,

880
01:42:04,320 --> 01:42:13,440
you know, when if a medical malpractice case may be one of those cases where it could be

881
01:42:13,440 --> 01:42:20,360
right for an early mediation, depending on what questions needs to be need to be answered.

882
01:42:20,360 --> 01:42:28,080
There are so many different situations where doctors have either hospital privileges, or

883
01:42:28,080 --> 01:42:34,920
they have their own clinic where they have their own medical malpractice or personal

884
01:42:34,920 --> 01:42:41,720
liability policies. These are things that a mediator may have to manage when coverage

885
01:42:41,720 --> 01:42:49,440
issues arise. There are different moving parts, different professionals that that are part

886
01:42:49,440 --> 01:42:58,400
of a medical malpractice matter. So, it could be nurses if there's a surgery involved, I'm

887
01:42:58,400 --> 01:43:05,200
just trying to give some perspective on the depth of some cases. Every case is different.

888
01:43:05,200 --> 01:43:09,520
And again, all the parties are different, but medical malpractice, the more you do,

889
01:43:09,520 --> 01:43:16,840
the more you need to do is what you discover. And so, those are cases where they are very

890
01:43:16,840 --> 01:43:25,520
in depth, lots of, you know, very expert intensive. And those are factual pieces that

891
01:43:25,520 --> 01:43:32,200
the expert reports, those are those are pieces that the mediator has to manage. And so, it

892
01:43:32,200 --> 01:43:36,800
may be a case that's right for early mediation, it may be a case as good for co mediation

893
01:43:36,800 --> 01:43:42,080
where you have maybe a doctor and nurses, you may have a hospital, you may have different,

894
01:43:42,080 --> 01:43:46,440
depending on what the ledged, you may have different interests that have to be managed

895
01:43:46,440 --> 01:43:53,360
by not the same attorney. It's kind of, I'll also mention a construction case. Construction

896
01:43:53,360 --> 01:43:59,320
cases can be very complex, construction defect, lots of different parts because you have maybe

897
01:43:59,320 --> 01:44:06,200
a general contractor and then you have different subcontractors. You may also, depending on

898
01:44:06,200 --> 01:44:13,680
construction cases and what the alleged defect is, have different companies that have manufactured

899
01:44:13,680 --> 01:44:23,840
parts that are used in and then subcontractors to them for component parts. So, mediation

900
01:44:23,840 --> 01:44:33,160
in an insurance context can be, those are just two examples. Products is another one.

901
01:44:33,160 --> 01:44:44,200
These cases can involve different component parts. It can involve the different regulatory

902
01:44:44,200 --> 01:44:52,320
bodies. So, you have to know as a mediator, when you take the cases, what questions to

903
01:44:52,320 --> 01:44:58,280
ask and have perspective really around the subject matter and the complexity of the subject

904
01:44:58,280 --> 01:45:07,240
matter and also damages that arise from the different losses that are alleged. So, I want

905
01:45:07,240 --> 01:45:15,880
to encourage you to develop subject matter expertise. Take training to understand and

906
01:45:15,880 --> 01:45:24,720
in your field, many of you, I'm sure, are lawyers who have handled these kinds of cases.

907
01:45:24,720 --> 01:45:29,080
The advice that I was given as a new mediator was play to your strengths. So, yeah, the

908
01:45:29,080 --> 01:45:38,480
point that I want to make is it is important to take on cases where you understand how

909
01:45:38,480 --> 01:45:46,600
to help these clients, these parties come to resolution. I can't stress that enough

910
01:45:46,600 --> 01:45:54,280
because it's important in order to get repeat business to develop our expertise in areas,

911
01:45:54,280 --> 01:46:02,280
but to also be responsible ethically as mediators. And as we take on these different types of

912
01:46:02,280 --> 01:46:09,960
cases, know how to really usher. Because if we're the shepherds of the process, you've

913
01:46:09,960 --> 01:46:18,680
got to understand the terrain that you're on. So, I want to stress that as well. And

914
01:46:18,680 --> 01:46:27,640
I'm just trying to make sure that I hammer home the point of how important it can be

915
01:46:27,640 --> 01:46:37,640
to use psychology in your communications with the lawyers and with the clients because you

916
01:46:37,640 --> 01:46:46,920
are the influencer as the mediator. And I thank you for your time and attention today.

917
01:46:46,920 --> 01:46:53,280
And I hope that you have learned something from me about this mediation field that we

918
01:46:53,280 --> 01:46:58,360
all love so well. Thank you.

919
01:46:58,360 --> 01:47:16,080
Okay. So, it looks like we only have one question here from the beginning. Let's see. I, hmm,

920
01:47:16,080 --> 01:47:21,800
the question asks from Carol Scott today, what are our essential terms and an essential

921
01:47:21,800 --> 01:47:27,560
terms document? Do you know what that's in regards to Rebecca?

922
01:47:27,560 --> 01:47:35,400
Yes. Okay. So, the essential terms document is a settlement agreement. It is and it outlines

923
01:47:35,400 --> 01:47:41,920
what the style of the case is, but you know, how it's, how it's framed in the docket. And

924
01:47:41,920 --> 01:47:47,840
what the settlement was, what date, also how much, when it's going to be paid. It's, it's

925
01:47:47,840 --> 01:47:54,400
an any confidentiality statement that needs to be made. It is the essential terms of the

926
01:47:54,400 --> 01:48:00,960
settlement and everybody signs it before they leave. And the reason that's important that

927
01:48:00,960 --> 01:48:08,680
I was stressing, we never walk away without having something signed is if you don't have

928
01:48:08,680 --> 01:48:14,320
that, you're not going to have the release. So, it's, you know, essential terms just outlines

929
01:48:14,320 --> 01:48:18,600
what's been agreed to and when, how much is going to be paid and when the payment is going

930
01:48:18,600 --> 01:48:24,120
to be made and everybody signs it. And then the lawyers work together. So, the lawyers

931
01:48:24,120 --> 01:48:32,320
work together on crafting the essential terms document. They work. It could be, well, it

932
01:48:32,320 --> 01:48:38,640
is before you get off that, before you get off of that zoom or before you leave the mediation.

933
01:48:38,640 --> 01:48:45,080
If they mock up a word document and they are emailing it or passing it back and forth until

934
01:48:45,080 --> 01:48:52,280
the terms have been agreed to and the signatures have before you leave the mediation. And that

935
01:48:52,280 --> 01:49:09,680
is just to secure the agreement before the release is done.