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today.
Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Rebecca
Ratliff of JAMS, will guide you through dispute prioritization and management. Let's dive
in.
When you're initiating the mediation process as a mediator, and some of you may be aspiring
mediators and some of you may be experienced mediators, everyone has a different style.
So I want to stress to you that what we are sharing here in this seminar is my style,
my perspective, my experience in mediation. And really, I've been involved in the mediation
process for over 30 years. As I'll mention, I am a former commercial insurance claims
professional. So I've seen a lot of different subject matters. And insurance touches everything.
So a lot of what you will hear today is from my experience and knowledge from that field.
So we're going to jump right into the objectives today that we are teaching and exploring.
We're going to introduce and discuss the mediation process, introduce the song, and
maybe teach some new things to others for mediation. And we'll identify some problems
that may arise during the day in a mediation. We'll explore disagreement management. We'll
learn how to establish priorities, what that looks like. We'll talk about how to manage
progress inhibiting issues. As we know, every single case is different. Every party is different.
The circumstances are different. And so there are lots of situations that can arise. And
we'll also explore settlement strategies toward the end. And I'll give some tips and some
tips and strategies maybe from my career. So engaging counsel, when you are chosen as
a mediator, you want to immediately start communicating. And so initiating the mediation
process really involves that contact from day one. You want to start establishing rapport.
And those pre-hearing conversations with counsel are really important to start the conversation.
It's a good opportunity to begin leveraging the psychology of negotiating. We'll talk
a lot about influence and the psychology of communication and agreement and negotiation.
The mediator is the shepherd of the process. So the parties, but the parties control the
outcome. That's important. Some people ask me what I prefer mediation or arbitration.
I am a mediator and arbitrator, but honestly, I prefer mediation because it's self-determining.
And the parties who care most about the case are making the decisions about the outcome.
So the chosen format of participation for any mediation should reflect a consideration
of the preferences from the parties, damages severity, emotional factors and risk based
on the damages, visible and invisible. We know that in dispute resolution, there are
sometimes damages that you cannot see. They are not readily apparent, but they have a
very strong bearing on what will happen in negotiation and whether or not a matter can
be resolved or has to proceed to trial. So you arrange the pre-hearing calls with all
sides if they will. Sometimes depending on the subject matter or the desire of the parties
or representatives, they choose not to meet. But I'm a former claims professional by trade
and I understand the importance of communication from the very start. So you as the mediator
are responsible for planning logistics for the mediation. And you should be asking the
preferences of the parties. It's important to induct and format the mediation around
what the parties want. So setting up effective communications begins before you get to mediation.
I will tell you that I have my case manager send an essential terms document in a word
form the night before mediation because I'm an optimist and I'm starting to get them
to think about resolution before we even get to the table. Most participants that come
to the mediation table are using some type of psychology whether it's bluffing as simple
as that or whatever they deem as an effective strategy to get their interest met. So again,
knowing people the way I do, I have a psychology degree and I'm a risk management professional
by trade. That was my first life. But I still think joint opening caucus is helpful. I know
that a lot of parties and lawyers and mediators are moving away from joint openings, but especially
in insurance matters, I think is very productive unless it will derail the negotiations from
the beginning. I think it's productive to have those communications jointly so that
people can have their feel like they're heard and seen. That's why you want to establish
that before you get to mediation. So again, you're conducting those pre-hearing calls,
you're discussing logistics even all the way down to lunch. Is it going to be a working
lunch? You're going to talk about the case dynamics. Hopefully they have sent pre-hearing
briefs for you as mediator to take a look at their position statements so that you can
begin to see how they see their case. I want to know how the lawyers see their case and
how communications have been prior to mediation. Again, sometimes when you're meeting with
lawyers pre-mediation, they can tell you about client control problems that they can't mention
when they are in front of their client. So it's important to have those conversations.
So now you're starting to communicate. You are introducing them to how you mediate your
style of mediation and process guidelines, how you see it going based on what you know
already and having read the pre-hearing briefs. So again, format should always be the preference
of the parties in front of you, but those calls allow for you to understand some case
dynamics so that you can proceed. So when you're getting to the table at mediation, caucus
we know is a tool for confidential communications where parties can be honest and straightforward
and help the mediator guide the process. So this is a confidential process. It is collaborative,
more collaborative than arbitration and obviously more collaborative than trial where you have
six or 12 strangers deciding the outcome of the case. So here you're meeting, you decide
with the parties whether or not the opening caucus will be joint or separate. And again,
caucus is a tool. Be looking at the caucus process as a tool. I established early on
that there are no time constraints because then later on when parties or representatives
start pushing for a close saying they need to be on a plane, I've established in the
beginning that there are no time constraints and then I'm going to call that back to their
memory. So again, psychology, I'm using now their sense of integrity to keep them at the
table because our job as mediators is not to decide the outcome, but it is to influence
the outcome and it is also to keep them at the table talking. It's important to remember
again that self determination, cannon of mediation, we do not decide the outcome. We don't have
a nickel in the dime. And what we're there for is to guide the process. So you have the
joint opening caucus or separate opening caucus, depending on what the parties want. And then
you'll begin the private caucusing sessions, which is what we call shuttling from room
to room. And one of the things that I want to stress here is that a mediator and the
parties can design how they want this caucus process to go. So this is a basic, what I'm
offering to you today is basic suggestions for probably the most common format for mediation.
But generally sometimes the parties are all kept in the same room. That would be more
in a situation usually where there's an ongoing relationship that you're trying to protect.
So conciliation or relationship repair, but in a traditional mediation usually there will
be private caucusing and the mediator is shuttling from room to room. So effective caucusing
is what I call the business of mediation. You're using your communication skills effectively,
not just talking, but strategizing. The parties have strategized with council representatives,
have strategized for how they are going to conduct themselves and make offers or demands.
And so when you're going from room to room or zoom to zoom as a mediator, having those
private meetings, you want to make sure that your communications are clear and strategic
as well. So I do want to say moving parties to the middle seldom ever happens. That's
aspirational. There's no real such thing as the middle. A case is worth what it settles
for. We'll talk about that. I teach that to my law students at Howard University School
of Law. Really, it's about compromise. And however creative you need to be to get to
that compromise is it's open. It's open for your style. It's open for what is happening
at the mediation. So the psychology of agreement equals progress. So we want to just keep in
mind you are looking to progress negotiations at mediation. And there are various ways to
do that. But effective communication is a key skill. So a little bit about off skills
and technical skills in the mediation context. Soft skills. That skill is about expression
of expectation and optimism. The mediator should be the most optimistic person at that
hearing because you are the only one in all the rooms. The mediator is the only one in
all the rooms all day. So you constantly express expectation and optimism, express your commitment
of time. I actually say I have nowhere else to be today. I say that the art of active listening.
That is a key skill. Showing respect. And you know, we're all human. So we know that
sometimes things are said and we may think something, but it is, you know, again, we're
not a party to the matter. So whatever we think, we're neutrals. It doesn't matter what
we think or how we feel about people. And when you've done this for a long time, you
have encountered a whole lot of different types of people. We'll talk about that a little
bit today. But your job is to garner trust and influence next steps. Those are soft skills
as a mediator. Technical skills are, again, the skills that get it done. So confirm what
is to be conveyed. Confirm what is confidential. As some people's style, as we know, is to
say I'm going to share everything unless you tell me it's confidential. And then other
people's style is I'm going to keep everything confidential and you tell me specifically
what you want me to convey. Now, at some point, the media will need to make decisions about
what should be conveyed next and how those messages should be conveyed. And if it's
confidential, if it's been expressed to you by counsel or the representative as confidential,
then obviously you need to ask if you can share it because as part of your strategy,
you believe that at this time, that information would help you as the mediator get the matter
closer to resolution. So again, timing for messages. Many of us have heard it said the
right offer at the wrong time is the wrong offer. So we want to make sure that we as
the mediator, the shepherd of the process that we're paying attention to the timing
for when messages should be shared or how message maybe should be crafted. You must
always convey a message accurately and honestly. But there are ways that mediators can be creative
in sharing those messages. Reality testing is a key skill in mediation. You are the person
who will test the durability of the positions that has been expressed. Remember, in mediation,
when these people are before you, they have the same set of facts, but they see them differently.
So what's important to remember is that you are responsible for knowing the subject matter
enough to know what questions to ask. And one of those questions is often, what if a
judge or jury disagrees with you? And when trial is imminent, that question hits a little
harder to parties in every room because they have to consider, you know, I love my case,
but maybe a judge or jury would not agree with me on this point or that point. So you
have to decide the timing for messages, when to convey what to convey, do some reality
testing, asking questions about how they see it versus how the other side sees it. And
also timing for transitions from themes in the mediation, maybe that are running through
the day. There may be themes that come to you from parties about their families. You're
going to be able to glean what those interests are, what people feel they need, and a compromise
at mediation by the things they say. So timing and transition is going to be very important
in order to continue moving towards a compromise. So when you start to communicate, you're getting
information, you're going to start to identify problems because we are working with the parties
to resolve those problems. You want to be able to identify what they are and diffuse
whatever is going on that might be progress inhibiting. The mediator is this facilitator.
We are facilitators. We are not judges. Even if you are a former judge, that is not what
mediation is for. And I'm often asked to talk about that to former judges about the job
really of a mediator because it's hard. They're used to telling people what to do. So it's,
you know, that's not what mediation is. The self-determination canon is very, very important.
And it's why mediation is one of the reasons why mediation is a successful way for resolving
disputes. An effective mediator sets the tone and tempo of the communications at the hearing.
But you've got to be patient. I'm there all day if I need to be. I have mediated cases
12 and 13 hours. And it's been said that I had the same energy in that 12th hour that
I had when the mediation began. I'll tell you it's invigorating work really because
I really believe that people don't want to be in dispute. People do not. Well, I do have
a sister who likes actually to, she likes a good fight. But I tell you people really
don't want to be in dispute. And so we as mediators have to discern the human condition
as a key skill. So you are paying attention. You're listening. You're asking a lot of questions.
You're probing. Again, the role of the mediator is a facilitator and an influencer. So it
is up to the mediator who established that trust, observe herbal and nonverbal communication
in order to make decisions about how to guide on the next step. So verbal communication
can be conversations that you observe with the attorney or other people in the room.
It could also be underlying issues or concerns that they have expressed to you. And it can
be questions that they ask. So you are paying attention to all of the communication that
happens in the room. Nonverbal communication plays to personality style, body language,
facial expressions, and again, interaction with others. Sometimes you can see people
shoot a look between them. Sometimes people have members of their family or significant
others with them at mediation. So you want to be aware of the people who are in front
of you, the parties, but also the people who influence the parties because all of that
goes into the day you're going to have easy or hard in communicating information, conveying
messages, influencing the outcome and reaching a settlement. So you are there again to establish
trust. So do a lot of active listening, again, probing to understand what the motivations
are of the people who are in front of you. So now we're going to have a little fun.
I always like to teach about personality styles because personality styles influence
how people negotiate, what they need, what they want, what is really predominantly their
motivation. So here is a quadrant, there's four quadrants here. And the descriptions
are around outgoing and task oriented people, outgoing and people oriented people, people
who are reserved and task oriented and people who are reserved and people oriented. So
the disk system, some of you are familiar with this. This is one of the personality
style assessments. You can actually find this online and do a free one. You can make sure
you find the one that's free. But what I will say about personality styles is there's no
good or bad personality style. You are usually a combination of two, maybe three personality
styles here. You are usually attracted to the opposite. You've heard the saying opposite
the tract. I'm at to be true in my interactions with people of over 30 years. So the D personality
style is a dominant direct demanding decisive determined doer personality. Really a person
that is pretty much fact oriented, data oriented. The I personality styles inspiring, influencing,
impressive, interested in people interactive. So these are the people who are happy all
the time pretty much bouncing off the walls. Love the socialites in society. Those are
the I personalities. They are happy and they want everybody else to be happy as well. Then
you have the S personality style who is steady, stable, supportive, status quo sensitive and
a specialist. This person generally, again, they are reserved. They like people, but they
are reserved. They are hard to read. This personality style can be very hard to read.
They don't talk a lot. But when they are actively engaged, they are very, very helpful. And
if you back them into a corner, they usually come out really mean because they prefer to
be left alone, even though they like people, they want to be supportive, but they don't
want to be bothered. So that C personality cautious, calculating, competent, compliant,
contemplative and careful. This is the detail oriented person who is reserved and task oriented.
And I can usually tell just in a few minutes who is in front of me by watching them interact.
Again, those verbal and nonverbal communication skills, I'm always watching to glean from
the people and the interactions that I see who I'm looking at and what their motivations
are. And these exercises, if this was an in person seminar or if it was an actual seminar
instead of a webinar, I usually engage people in the meetings. And by the way, they are
communicating in the exercise. We are about to quietly do. I can usually tell what personality
style they are. And when people are in front of me in mediation, this is very helpful for
me to identify the style of personality. It's not because I want to label people. It's because
I want to understand their motivations and what they need in addition to what they tell
me they need because we need to be listening. Every person is an individual. And based on
what their orientation in life is, their backgrounds and experiences, the things they can't see
and can't unsee and unhear. People are truly individuals. So the exercise that I normally
do is I ask people to identify a glass bottle of Coca Cola. And you would be surprised those
four quadrants never disappoint. They are true to the personality styles. Usually the
I personality, which is the outgoing and people oriented personality quadrant. Those people
come up with a song or I mean, they have had a full on party. They had the most fun and
they have come up with the most descriptions of this glass bottle of Coke. And usually
it is that I personality style that says curvy like a woman, but Coke bottle figure, something
like that. They are just having a ball that deep personality style may have the least.
The deep personality style again is direct doer. They want to hear the directions, follow
the directions and figure out why they did the exercise in the first place. They just
want to know why are we doing this? What is the value to to this forum? The S personality
style again, that's the steady personality style supportive. They're going to do exactly
as I ask, and they are going to come up with answers and they are curious to find out the
purpose of the exercise, but they are going to follow the directions and it's just that
simple for them. The C personality style is the cautious calculating personality style.
And the people from that quadrant generally are very detailed. They don't use just one
word descriptions. They are going to give me a very, very detailed description and an
outline and sometimes they may even ask, you know, let me repeat the instructions because
they are exact. They want to know are we doing this right? We want to we want to get this
right and we want to do well. So it's just it's always very interesting to observe the
personalities because obviously this is not an exercise I can do in mediation, but the
point is knowing what the personality styles are is very, very helpful when they are in
front of me and we are communicating and trying to probe and craft agreements and understand
honestly what is what is meant by what is said because remember in the early part of
the day, depending on the type of damages you are looking at this, depending on the
basis of the dispute, you may have some pretty emotional people in front of you. And so you
want to really spend time getting to know those people as well as you can. And sometimes
I will tell you I am just honest and I'll say we only have a few hours to get to know
each other. I mean, I'm pretty transparent because what I'm trying to do again is get
them to trust me and I want to enlist their help in helping me understand how they see
their dispute and their damages or, you know, the side that's paying hopefully want them
to understand that I want to understand how they see the case. They know I'm going to
push back at some point to try to help affect the settlement. But again, I want to know
the personality styles as best I can in that short amount of time. So motivations influence
how people negotiate. So here we are back at the quadrants. The D personality style is
concerned with getting it done. That's their motivation. They are the what people they
want to know what the I personality style, they want to know who and they want to get
social recognition. The S personality personality style wants to know the how. Again, these
are the mechanical people transactional. They care about people, but you know, because
so they want to get along, but they want to know the how. And then the C personality
styles concerned with why they want to get it right. So again, the D personality style
is focused on results. The I personality personality style is focused on enthusiasm. The S personality
style is focused on support. And the C personality style is focused on accuracy. And then you
can see the other peripheral factors of characteristics that go into the personality styles. Again,
the D is going to, you know, they're actively engaged, but you know, they want to their
focus again as results and you know, enthusiasm, then you got on the people oriented side
collaboration on the task oriented side, you have challenges. So you want to understand
a little bit better who you are dealing with and where their motivations come from. And
in order to do that, you have to do a lot of probing a lot of listening. Really important,
don't interrupt when they talk. Even though you may have a question, have that pad of
paper in front of you, write it down. I will tell you, I use this pen. Remember these the
the blue and white pen with the four colors. I use different colors for the different sides
who are talking. Another thing is words are important. So because I'm the shepherd of
the process as a mediator, I'm very careful about the words I use. I never use opposing
side as a description. I never say that. It's always the other side. I'm very careful about
again, psychology, how I am planting my influence into the minds of these people who have entrusted
me for the day with helping them resolve this dispute. And I'm the optimist. I'm the person
who was in the rooms. And so I want to make sure that every communication that I am offering
is positive and moving in a direction will help matters be resolved if it's possible.
And I always believe it's possible. So the art of agreement again, personality styles,
influence, how people negotiate and in different contexts, just think about even buying a car
when you go into it helps to understand the context you're in. So obviously there are
you know, in mediation, different subject matters in that negotiation forum. But if you're
buying a car, you know that a car salesman, a car dealership wants to sell cars. That
is why they're in business. So when you go to buy a car, you go at the end of the month,
they want their car off their inventory. If your credit is good, that's definitely a plus.
If it's raining during the and during the week, you're going to have make a better deal because
less people are there during the week there at work. And when it's raining, less people
feel like coming out to negotiate the price of a car. So those are some really basic,
you know, in the car buying context, some basic knowledge to have to help you make a
better deal. A little bit later in the seminar, we'll talk about leverage. But again, that's
a classic example of leverage is buying a car. They exist for the sole purpose of selling
cars. And if you are there to buy a car, you will have certain advantages if you understand
the playing field. So your inclinations in in a mediation context can change over time
as your knowledge increases. So the more you learn, we'll talk a little bit about cultural
competency today as well. But the more you learn, the leverage you have or may not have,
sometimes you think you have leverage you actually don't have. But the more you know,
it can shape how you negotiate, how you feel about the different concessions that are being
asked of you reaching an agreement is simply emerging of the information and interest to
find a mutually agreeable compromise. That's what this is about. It's about compromise.
And so often when I say is, you know, one side is the defense side, if we're talking
in just as an example of a two party mediation defense and plaintiff, the defense is going
to be asked probably to pay more than they plan to pay. And the plaintiff may have to
accept a little less than they plan to accept. And that's the definition of a good settlement.
Nobody is supposed to feel as if they won at a mediation. So again, a mediation is is
collaborative. So now we're going to move to talk a little bit about disagreement management.
How to manage the options and opportunities that come with this, you know, that come with
the dispute that exists, whatever that may be. So very simply, ABCs of disagreement management
are asked, bargain and compromise. So let's let's talk a little bit about that. Because
as we know, mediators are not magicians. Mediators are again, facilitators of a process. And
we don't have any authority to make anyone do anything. So it's important to remember
that if you don't ask, you can't get it. And again, the sides see they have the same amount,
they have the same facts. They have the same facts, but they see them differently. And
so skilled lawyers know how to convey messages and obviously leverage the law where where
it makes sense in order to make the ask of, you know, please, you know, we want you to
accept this amount or on the plaintiff's side, you know, we want you to pay this amount.
So what we have to do really as mediators is explore the strengths and weaknesses of
the positions that are being made. Because again, they have the same set of facts, but
the bargaining is around how to present those facts and what information to add. Because
again, one side is trying to incline the other to see it their way, at least to the extent
that they will make some concessions and agree to get some point resolved. And if you if
you start to make small point concessions, eventually again, you'll be inclined, the
psychology of it is that they become inclined to accept larger concessions or to make larger
concessions. And it really happens over the course of a day. Many of you know that you've
seen how does it happen that a plaintiff appears at a mediation asking for, you know, $25 million
and the defense is offering 500,000 and the thing gets settled before the end of the day.
How does that happen? It happens by communication, by effective caucusing, by compromising, by,
you know, again, concessions and just, you know, listening and and a great mediator helps.
So you find points of agreement as the mediator and you are reframing constantly reframing.
I often I take a lot of notes, even in those pre hearing calls, I'm taking a lot of notes.
I'm writing down everything they say. And if if you don't have to do that, bless you.
I write down a lot. I take copious notes because I want to capture really what they said. I
don't want to to write down my interpretation of it because it is not my case. And I want
to understand how they see the case. And I know that people have, again, different styles
and different skills as mediators. But for me, even when I'm taking notes at a seminar,
I take a lot of notes and people will say, well, you know, they're going to send us the
slides and I'm like, yeah, but I like to capture my understanding. I can absorb it better if
I write it down. So again, God bless you if you don't have to. But for those of you who
are still paper people like me, the dinosaurs, I'm giving you permission to be you. So it's
OK. So yeah, that bargaining, you have to be the person who is really in charge of the
bargaining tools. I mean, that's what we are. We're controlling that that tempo and the
temperature in the room. So we're asking questions, exploring the strengths and weaknesses. We
want to know, you know, from the parties, you know, tell me more about why you see it
that way. I heard what you said, but I want to understand why you see it that way. And
what what is the difference that it will make in your willingness or ability to come to
an agreement today? So again, you want to explore that, you know, asking, bargaining,
compromising. You have to ask a lot of questions throughout the day to get people talking so
that they when they say things out loud, they actually start to hear themselves. And at
some point during negotiations and during the exchange of information and messages, they
actually may hear something differently from even themselves. So again, it's also that's
why it's important to understand who is influencing them. If there's somebody in the room with
them, then you know, you want to make sure that you're not communicating with a person
who isn't a party, but that you are including perspective that they have shared that is
influencing the process. It's important to do that. Because what happens is psychologically,
you begin to influence them as well. So again, as the mediator, we're paying attention to
every moving part in that mediation, even the people who are not parties to the matter,
but have appeared with a party and are influencing them. So you want to make sure that you are
again, discovering points of agreement and disagreement, but always be revisiting the
points of agreement, because what you're trying to do is influence, again, the concessions.
So it's a collaborative environment. You want to continue to stress openness, asking them
to be open. I mean, in this phase, we're talking about options, openness and opportunity, because
you want to stress, be open with me, help me understand what you need, what happened,
how it impacted you. Let them talk about how it impacts you. Another really important point,
as the mediator, always ask the lawyer or the counsel for permission to communicate directly
with their client. The reason for that is, again, it's psychology, but it's also the
right thing to do. They are there with their representatives and mediators do not represent
anybody. We're neutrals. So I never communicate with clients without asking permission from
their lawyer. And I will tell you, I speak full in Spanish. There's going to be an interpreter
there. But if I want to communicate, again, to gain trust from a plaintiff or defend that,
I'm going to ask permission. And again, there is an interpreter there, but I'm going to
ask for permission to communicate, even in Spanish, but any direct communication. And
it's usually it's nothing, it's only, you know, I'm just trying to have a brief conversation,
check in with them, help them understand that there is some relatability between us. It
just really temperature down. It's just it's amazing how you as the mediator can really
influence how people feel and how people think by being able to relate to the but by caring
enough to relate to them. And even if it is in their native language, but again, always,
always ask for permission from counsel before communicating directly with a party. So here
you're pushing collaboration. You're asking what is negotiable and what is not negotiable
as a mediator, we have to know what is negotiable and what is not negotiable. So again, if
they are communicating what things are confidential at the time, which I may ask to use later,
I'm going to write that down with a little C, a red C next to it, which means confidential.
So when I'm going back through my notes to convey the messages, I don't make a mistake
and repeat what is intended to be confidential. So it's again, conceding what is negotiable
and what is not is not a concession, but compromising the entire resolution is going to be based
on give and take. But one of the things when you are taking them through exercises, where
they have to agree to disagree, you want to make sure that you are interpreting what is
meant by what is said, because there's a there's one thing to for people to say something,
but often they can't really articulate what they mean if they're emotional. On the defense
side, often depending on what kind of case it is, the defense is communicating from the
lens of a business decision maker. That's just the way it is. And I understand that because
I, you know, again, I'm a former commercial claims professional, and I understood the business
decision component of being engaged at mediation. But in addition to that, I've done consulting
around plaintiff counsel, and I also understand the emotion that exists when a party has been
harmed. And so it has been very eye opening to be able to to see and hear from both sides,
you know, what is happening in a person's mind. And and to large extent, sometimes what
is happening in a person's heart. So here, this is where the work begins. This is where
the work begins. You've got to ask the hard questions. You've got to you've got to make
some hard points as the mediator. You're going to be the person who they are depending on
to make certain points, even those that they don't want to hear at the time. That's our
job. It is not our job as a mediator to just pass messages back and forth. Again, that's
where reality testing comes in. So the art of reality testing is asking the questions
that they have to answer for themselves. I'm not the person to say what a judge or jury
will do or what will happen at a trial. I don't have a crystal ball. So I don't know
the answer to those questions. And it is outside of my scope to try to offer those kinds of
answers and perspectives and insights. That's not my job. My job is to make sure that they
are thinking about those points and that they make decisions based on what they actually
think could happen. So again, I'm listening to what is said, and I'm repeating and I'm
probing and I'm asking questions so that I can understand what is meant by what was said.
But in addition to that, I'm asking hard questions about how it may be seen if the is to escalate
and what that will mean. Time for their life for the people around them. What difference
in on again, mediators don't give legal or financial advice. That's not our job. That's
a violation of ethics. But I'm asking questions. I am again testing the durability of their
arguments, their position, what they think will happen. And I'm constantly exploring
points of agreement using those points and reframing to fit the party's interest. And
this is just a key skill. Again, this is really where the work is happening at mediation.
It's that that digging in because at some point there's going to be a weeping and gnashing
of teeth. And what I want to make sure that I'm doing is making the pills they have to
swallow a little easier to swallow. So I'm trying to provide the water to help it go
down a little easier. So the collaborating and conceding and compromising, that's all
working together. So it's working together. It's, you know, cooperating. And it's, it's
give and take, as I mentioned before. All right. So establishing priorities is a key
skill because as you're doing all this probing and actually you're you're digging up these
raw emotions, the next thing that is going to take place is the coaching. You know,
now you've you have scratched up all of these emotions and issues to be resolved. And now
it is time to to begin establishing priorities to remind them again, reframing. So now we're
going over the needs and negotiables again. I'm using my knowledge of the personality
styles. I am I'm really working from room to room. If I spend more time in one room,
I'm explaining, you know, I've explained in the opening that if I seem like I'm taking
a lot of time in one room, it is because I'm doing probing. I'm using information that
I have to try to to bring that those points of compromise points of agreement together.
So again, you're exploring the needs based on how what they've been telling you and what
they've said in their position statement and who's maybe in the room with them. And you
know, I'm using everything that I have been given and what I know and what I feel like
I need to know to continue assessing how can we get these parties closer in this, you know,
from dispute to resolution. So it's, you know, it is it is an exercise that sometimes it
is cyclical because you you feel like you've made progress. And then there are times when
some information comes up is revealed. New information, you know, there are things that
can happen during a mediation that are a surprise to everybody. So what, you know, we want to
make sure that we're doing as mediators is keeping our finger on that pulse to make sure
that things don't slip by. Now, one of the things that I've had to do is use I always
have an extra mediator room. And I will pull the representatives aside into the principal's
office is what I call it jokingly at media, but that mediation room. And let me tell you
a little secret for those of you who mediate insurance matters. If you have I'll make a
slight distinction between a commercial adjuster and a personal lines adjuster. Most times
that commercial adjuster is the one with the money. So if you are ignoring that commercial
adjuster, that is a mistake. Because sometimes the mediator is focused on the lawyer, the
defense lawyer. And unless much has changed, and I pretty much know that it has not not
much has changed, that commercial adjuster is a pretty sophisticated negotiator. They
have already set a strategy back at the insurance company. And if you ignore them, they may
not use you again. So something that, you know, a lot of people are happy to hear or
surprised to hear from me is, yeah, don't don't ignore the adjuster, because that is
the person who has been given the charge from the insurance company. And they have authority
many times defense lawyers, they are partners, but they don't always know defense lawyers
will tell you that many times they do not know the authority that has been given it
may be different in a personal lines case. It may be different if there are variables.
So again, just hear what I'm saying from from my lens and my experience. But in personal
lines, many times, the defense lawyer has a little more leeway. But if it's if you're
dealing in a commercial case, a high stakes or severe damages case, the adjuster is the
person. So if you are pulling lawyers out of a room to discuss something, you may want
to drag the adjuster with them, or ask permission, ask how they want to do it. Again, this process
is for the parties and the representatives. It is not the mediators process. And I am
constantly reminding the parties that it is not my show. It is not my process. I am the
shepherd of the process. And that empowers them to remember that the outcome is there.
That's the magic. That's the magic of mediation is that the outcome is their decision. That
is why mediation is successful. And whether it is in person, I will tell you I prefer
in person mediations because that's just my training. But statistics are telling us that
virtual mediations are just as successful. And about 94, I think percent of cases that
go to mediation successfully resolve and do not resolve at mediation. They generally can
resolve through follow-up and continued negotiations after mediation. And that has been my experience
in really my over 30 years of dealing in one area or another with mediation. So again,
you are assessing constantly continuing to assess and reassess the needs and negotiables.
Because remember, people's hearts are changing, hopefully for the better as you move through
the process, people are either worn out or they are digging in or they're strategizing
or they are using psychology. There are many different things going on at mediation. So
you got to know what the parties need to establish those priorities and to get to resolution.
So again, I cannot stress enough, ask a lot of questions, do a lot of probing. The question
that you ask and the answer that you get should be inspiring more questions. You should be
able to think of more questions by the answers that you get. So you want to be sure to be
paying attention to everything that you hear to guide parties towards successful compromises.
And you have to focus on the opportunities for resolution as you're doing that and continue
to say to them, you want to continue saying to them, I believe this can settle. I mean,
if you really believe it can settle and sometimes even when you're not sure, just continue to
plant the idea that it can settle. Because if it doesn't settle at mediation, then it
may be able to settle after mediation. So I'm going to talk some about managing issues
and getting through and maybe what we'll do too is some scenarios around what can happen
at mediation. But when you're managing issues that inhibit the process, you are trying to
make unproductive communications more productive. So personality styles, again, come into play.
Let's talk about this a little bit. This is important. What things can inhibit progress
at mediation? You're dealing with personality styles, you're leveraging communication styles,
you're reframing and reminding. So difficult attorney. So there are sometimes situations
where the attorney is is the piece that is making progress difficult. Sometimes you have
attorneys who are on either side. That's why there's that S there. Attorneys who love
their case or have, you know, they are digging in to the position that they have taken on
a matter. And when that happens, it can be very hard to break through because what happens
is what the other side then starts to dig in as well. So sometimes you move backwards.
So let's say this may be the reason why the decision is made to have separate openings
because maybe the communications prior to getting to mediation have been contentious.
And there hasn't been much progress. There are lots of different reasons why a case is
ripe for mediation. A case may be ripe for mediation because the lawyers cannot make
any progress. Sometimes we know that mediation happens because it's a fact finding mission.
There are lots of different reasons. But what we're finding too is because of the expensive
mediation, some insurance carriers are, you know, slowing down or resisting going to mediation
unless they think that a matter can resolve. But again, there are reasons to go to mediation,
even if a matter is not ready for resolution. Sometimes you want to gather information so
you understand your case better, depending on whether or not trial a trial date has been
set, depending on what kind of judge you have, what venue you're in. I know that what's
become popular now is focus groups. But sometimes attorneys can be the impediment based on how
they are framing the case. And then there can be difficult clients, client control problems.
These different issues, communications, there are so many different types of situations
where a client may have an influencer on a case that really is inhibiting the progress.
It could be people with their own interests in a plaintiff's life, maybe. It could be
commercial. Sometimes there are mediations inside of mediations going on. If you're
talking about a property matter, you may have a dispute around what should be paid, what
is covered, sometimes coverage issues, which is one of the things here is the last bullet
point. But there are different reasons for client issues. In California, that CUMAS
council and insurance matters is really a thing. If there is a coverage reservation
of rights or a coverage problem, that can really create some difficulty in communication
because the insurance company has to pay for separate counsel for the policy holder. So
there are lots of different scenarios where you may have difficult clients. And again,
we've mentioned interfering third party. Sometimes it's a mother. It could be a significant
other. Many of you have seen cases where maybe there's a car accident or some type of, you
know, damages severity. And let's just say a man or woman is injured and they are actually
going through a divorce, but magically their spouse appears as an interested party when
there's a settlement that is being negotiated. There are lots of different things that can
be a factor when you are negotiating these cases. Again, personality clashes. That could
be personality clashes inside the insurance company. It could be a personality clash between
lawyers and clients. It could be co-defendants. It could be co-plagious. Again, sometimes
there are lots of different moving parts that happen and arrive at a mediation table that
are being managed by one side or another. Again, and what's a pop, I will tell you a
popular mechanism that's being used now for varied problems inside mediation are co-mediators.
The team approach to mediation, I'll mention that because it's becoming more popular. The
co-mediators generally work out the fees so that the parties don't. Depending on how big
the case is, sometimes the parties are paying more, but what I'm seeing is co-mediators
are making arrangements between themselves to manage different parts of a mediation
to get it done. That's something to think about because you may need someone to manage
the coverage issues. Another mediator is handling the underlying coverage. Again, coverage matters,
personality, different parties and issues that exist. Sometimes there is a party that
has a foreign presence, so many different types of situations, competing interests from
the plaintiffs or co-plaintiffs or co-defendants. I'll just say, attorneys work in teams, why
not mediators? That is becoming a thing. Co-mediation is becoming more popular. Unrealistic expectations,
that's another reason why sometimes you hit a speed bump and emotions. Sometimes you spend
hours as a mediator trying to work through and manage the emotions that exist. Again,
this can happen in layers. It could be co-plaintiffs. It could be a division of how to apportion
the limits that exist. Sometimes the insurance policy limits are smaller than the damages.
There are these different issues that have to be managed at mediation. The mediator is
responsible for being really the ringmaster in the circus that can be mediation on any
given day. There are also biases, conscious and unconscious. We'll talk a little bit about
cultural competency. The ability to hear and understand issues that exist from people
who come to the table from different cultures is very, very important for a mediator. There
is a lot of training going on about this now because it is so important. Many times, the
mediator as the shepherd of the process isn't in tune with different cultural differences.
One thing that I will say is people in the same family sometimes have different cultures.
Cultures is not just us talking about ethnicity. People have heard and seen over the course
of their life different things that have affected them and framed out who they are. It could
be ethnicity or it could be a professional work environment. It could be family. There
are lots of traumas that are going on in people's lives. Everyone is managing something. I don't
think anybody will disagree that COVID changed everything. Whoever would have guessed that
we could have a worldwide epidemic that would go as long as it did and would have affected
just about everybody in some way. Everyone really was affected in some way by COVID.
That's why we're seeing different disputes arise in employment cases there because of
the workplace. This is an entirely different world. The new normal is still evolving.
There are biases that have emerged. Lots of different, again, mental illness. So many
different classifications now that have been added to diverse classifications that have
to be respected and have to be dealt with and managed at the mediation table. Thank
goodness that there is a forum like mediation to address the issues in conversation so that
people can be seen and heard collaboratively. That is what mediation is for. These biases
that we're seeing, some are conscious and some are unconscious. Generally, I'm sure
many of you have by now been to an unconscious bias training, implicit bias. There are
so many different types, confirmation bias and familiarity. We tend to, so our brains
attract us to things familiar. That's the way the brain works. Our brain processes
trillions of bits of information in a second. We can't process all of that consciously.
So what ends up happening is the amygdala is the part of the brain that attracts us
to the things familiar. We are just biased towards things that we are familiar with.
We are more comfortable with things that we are familiar with. We all have unconscious
or implicit bias. If you don't believe me, take the free Harvard test. Just look up Harvard
implicit bias free test and take that test and you will find out something about yourself
that you may not already know. Biases do inhibit progress in a mediation. It's not all about
race and culture. It could be a bias really about how the facts are seen. There are so
many different interferences that happen in these mediation. So timing could be bad.
Sometimes there are mediation that happen a little too early. Although I will say early
dispute resolution is becoming a welcome mechanism to start talking about issues. Usually there's
an agenda and there is a reason to have those kinds of mediation. There are lots of different
conciliation methods that are an alternative to trial that help to hash out the different
issues that are happening out there in society. Personally or professionally, there is conflict.
I just finished writing an article about cradle to corporation conflict resolution.
Children have conflict. We start dealing with conflict really from the day we are born. Children
are manipulating their parents, babies, infants are manipulating their parents from day one.
Eric Erickson has a theory out there about psychosocial needs. So human beings from the
day they are born start these communications to express a need that they have a basic human
psychological need, but also the conflicts that exist from that need or in concert with
that need from a social perspective. So again, at mediation, we are dealing with conflict
resolution, but conflict resolution is a human experience that happens even when infants
are born. And the doctor for new parents, the doctors tell you run to the baby every
time the baby cries because they need to learn trust. The baby learns trust by the repetition
of them crying and then there being a response to them crying. So it's really a pretty basic,
but it's not something that we really think about when we are thinking about conflict
resolution and expressing need and getting those needs and interests met. So it's really
an important concept that people just really don't think about. And what happens is as
you start to make small concessions and agreements, it influences larger concessions and agreements
because that's the psychology of negotiating the power of suggestion. That is the way it
works. And if you think about it, you can think of different situations where, yeah,
you became more inclined to agree with something else because there was something that started,
something maybe smaller that started all rolling. So this is an important point that I want
to make about listening skills. You can hear someone say something. This also goes back
to what is said versus what is meant. I heard you, but I wasn't listening. Often plaintiffs
cannot articulate what is underlying their anger, frustration or fear. They are emotional.
And so that dynamic can be very difficult to navigate. It's again, human need, psychological
need and then for conflict that exists, that society tells us that we have to address and
resolve. So it's the mediator's job to figure out what it is that is really being said
and ask enough questions to get to the root cause. And it can take hours to even just
get to that point. Sometimes you get frustrated because you started at 9 a.m. and by 2 p.m.
it doesn't feel like it's coming in for a landing yet, but progress has been made if
you just stay the course. Keep them at the table as a mediator. That's our job. Ask
a lot of questions. Do more listening than talking, especially in those first few rounds.
And establish that trust. Do it. You need to do to establish that trust. You're leveraging
how people think about the small wins. If they feel like they're getting small wins,
then the larger wins will come. People tend to become more agreeable. The little things
they agree to turn into the bigger things that they are willing to agree to. So again,
guiding the process of compromise through the use of psychology and the art of agreement.
So as we determine the party's interests, we continue to build our toolbox for understanding
the points in common and being able to remind the parties of those points in common that
can be leveraged towards mediation. Important to remember, concessions begin before mediation
because again, as a mediator, you are the separate or the one guiding the mediation.
Again, using that power of suggestion, this can settle saying things in the, you know,
in the pre-hearing calls to understand their, you know, understanding their position, asking
questions in the pre-hearing call. I ask, what are your soft points? And the reason I ask
that before I get to mediation is because I want them thinking about that before they
get to the table because I have had lawyers say to me, I don't have any, I don't have
any soft points. I don't have any weaknesses. I don't see that I have any weaknesses. And
that is, that's information that actually lets me know that I have some work to do as
the mediator to try to help them understand that there are very, very few cases where
a side doesn't have any soft spots or weaknesses because perception, how information is received
by the fact finder determines whether or not there is a weakness. So again, concessions
begin before mediation and compromises happen one decision at a time. You are as the mediator
continuing to bring up points in common to help the parties come to conclusions about
what can happen, what is possible, what their position is, how that position may be seen
by someone else. And then it's your responsibility as a mediator to affirm and reaffirm the progress
that's been made during those conversations in both rooms and to, again, timing to determine
when is it time to ask if I can share that confidential information? How might I frame
that? How can we frame information to show that there has been progress? If they're still
moving, those numbers are moving closer, even if the increments are small, any movement
is a win. So going to talk about settlement strategies and closing, how do you get to
the point where you are closing? What does that look like when you are talking to the
parties and you are influencing those compromises and those concessions and you are addressing
biases that may exist and you're doing all this reality testing, honing in on points
of agreement so that they can collaboratively make settlement decisions, dealing with setbacks.
We talked about that, managing issues that can slow things down or seem to halt the progress
of negotiations at mediation. And our goal is to turn those concessions to agreements.
So now is the time where you are focused on, again, points of agreement. You've worked
through a lot of what would inhibit the progress, but now you're focused on the agreement points,
you are framing out the messages and your goal is to finish, you're finishing. So when
I say at the bottom, use the mediator room, the S.D.A.P. principles office that I was
talking about, sometimes I have to, I'm not ashamed to admit that sometimes I have to
think for a minute. I just need a minute, something has happened, there's been a setback,
there's been a message that may be a hard message that I need to communicate and figure
out how to do that. And I just need a few quiet moments. Don't be afraid to do that
because what happens if you become frustrated, what happens to the process, it can get derailed.
And I am never the first person to say, we're done for the day ever as a mediator. It is
our job to keep them at the table. So in complex disputes, there can be mediations inside the
mediation I mentioned to you. Those things can be with personal counsel or CUMAS counsel,
they can be again, co-defendants, there can be coverage problems, co-plaintiffs, where
there are disagreements going on. Hopefully the mediation isn't happening before you figure
out that there are competing interests and you need to separate maybe parties into different
rooms because sometimes they start off in different rooms. If you have co-plaintiffs
with different interests, you know that hopefully the counsel should know that and they should
be different. Sometimes it's the same counsel, but if there's a conflict, there would be
different counsel there. But again, coverage issues, personality clashes, apportionment
challenges, sometimes there's not enough money. If you're dealing with an insurance matter,
for instance, and you've got $500,000 worth of damage, but you only have $100,000 worth
of limits. So there can be problems like that that just may not make it easy to settle a
case. But people will have to, unless there are punitive issues and the trial is imminent,
there are lots of different scenarios where there could be a difficulty getting it settled
or it actually gets settled because people are motivated to just go ahead and get it
done and not take the gamble at trial. Trial is always a risk. Again, at trial, if you
have a jury of six to 12 people telling you what to do with your case and they are not
qualified to decide that case for the parties. And that is something that I am constantly
hammering away at when I'm in the phase where we're trying to bring it in for a settlement.
I have been known to say, remember, because I'm trying to influence it, I'm the only person
in all the rooms. I'm the only person that's been in all the rooms today. And you just
see this light bulb come on sometimes because they realize that, yeah, okay, she knows what
the other side has said, even if she has been unable to share everything. And again, you
can use the mediated room to have a private thought and strategize yourself or sometimes
counsel are speaking two different languages and you need to bring them into a room where
you say, you know, tell tell tell this other lawyer what you said to me, you know, because
sometimes as the mediator, because I'm in, you know, all the rooms, I'm hearing some
disconnect and I know that that disconnect could be bad timing or it could be some misinformation
that just has had a misfire. And so it's my responsibility to make sure that I explore
every single angle that might inhibit progress. So one of the things I'll mention when we're
when we're going, you know, through this process is adjourned versus impasse. So that's down
in the bullet points, but I want to I want to make this point because it's another point
at leveraging psychology. Unless they make me, I don't declare impasse. I will say the
mediation is adjourned. And I offer myself for follow up for a reasonable amount of time.
That's the way you get more business by not nickeling and diming them. If you really feel
like the matter can settle, you offer yourself and you follow up with an email. Don't just
offer yourself and then disappear because follow up can actually be very fruitful. So I'll
say again, keep them at the table. Do not take results personally. You don't have a
stake in the case as the mediator. We are not decision makers. We are facilitators. And
we take that very seriously by conducting the negotiations. You know, the way we do staying
involved. Don't be the first one to give up guiding them, crafting messages, making sure
that you don't share confidential information. But if it does not settle, it is not a failure
on your part unless you didn't try to keep them at the table. Because I have had people
say, I think we're done. We're leaving. And then I'm able to influence them to stay. And
I'm a former adjuster. So I'm a claims professional whisperer. You know, I'm able to talk to a
colleague and try to, you know, get them to stay at the table. There are different ways
of keeping the parties or people who are decision makers engaged. But I don't take the results
personally if it doesn't settle, because I know that I have done everything possible
to keep them at the table. We cannot make them stay at the table. But I use words like
because words matter. Please reconsider. Please consider this. Again, I'm asking them to cooperate
with my idea for how the continuation can occur. So again, I don't have any authority
to make them stay. But the power of suggestion is really, it really is a thing. But you have
to have the courage to do it. And you, you know, ask them again, that may be, you know,
when you see things falling apart, that may be when you go into the mediator room and
just think quietly about what you should do next to keep them at the table. Help parties
focused, focused on the points in common throughout the mediation. You've heard me say that over
and over again, because again, we are influencers, we are the facilitators, but we're not decision
makers. We are the optimists in the room, though. So I'm the person who is going to
make that suggestion continually for, well, this is what you agreed on this, though, we're
making progress. So I keep affirming that we are making progress. If there is a compliment
to be paid from one room to the other, I am the person who is I'm the conduit. I'm the
person making that, you know, Mr. Amiz is so-and-so. The lawyer, you know, said that
you presented very well at your deposition. I mean, whatever I can say again, to influence
goodwill, we are the goodwill ambassadors. We are the facilitators. We are the shepherds
of the process. So whatever I can do throughout the day, I am doing all those things that
I can think of to make sure that people feel like, you know, this is not personal. This
is a business decision. They understand they are hearing good faith. And, you know, just
to convey those messages of goodwill, that's our job. Never embarrass an attorney in front
of their client. Sometimes I know that our colleagues are inclined, you want to fix something.
That's not our job. That's not our role. It's outside the scope. You know, to fix the
I can see this attorney was not prepared. I can see that this attorney doesn't know
the case. Maybe it's a partner and the associate really has worked on the case. And now the
partner appears at mediation. It is very unfortunate, but that is not our role. And that as a mediator
will will get you talked about negatively. And it may prohibit it. It may be the thing
that makes them not call you again. So again, a mediator is a neutral. We don't advocate
for any particular side. And we definitely don't take over people's clients because we
see deficiencies in the lawyers. It is our role to manage the process and not the people.
I cannot make that point any stronger than to say, be very, very careful of your inclinations
to take control of something that you think is a miss. That is not our role. And it can
be borderline and ethics violation. So be very, very careful about that. And I know,
you know, people are tempted, mediators can be tempted. And sometimes it's sympathy. But
we have to use emotional intelligence as mediators and then stay in the lane that we're in as
facilitator. So again, adjourn versus impasse. Psychologically, it just does something. It
just it is a very effective way to keep them engaged and to keep parties believing that
it's still possible that this might resolve at some point. Now, if trial is imminent,
that's different, maybe depending on their motivations. Again, what do they need? What
do they want? But that is why the focus now is on, you know, what they need, what is going
on in their lives. And I will also say, yeah, the follow up, I've made that point, follow
up with the attorneys if the case doesn't settle and never if it does settle, never
leave the settlement table without a signed agreement. People go to Bible class or wherever
they go and talk to people, they go to dinner with friends. And if you don't have a signed
agreement of essential terms, it's not a I'm not speaking of a release, but a signed degree.
That's why I sent it the night before. If they don't have an agreement, that thing can
fall apart. And then you are scrambling to get people to get the parties to agree. They
go, they look at the file, they find something else. And then, you know, you don't have that
agreement. I never, ever, ever leave a settlement table without a signed agreement if that case
has settled ever. And again, I've said before, no one is supposed to feel as if they won.
Nobody's supposed to feel as if they won. So while, you know, we're we're doing the
framing, you know, we're focusing on points in common now. We are we have used the caucus
process to create terms for settlement. If it settles, we are using the power of suggestion
in psychology. And then there are different ways. There are different ways to come to
an agreement. Sometimes there is I want to make this point is just a huge point that
we that we must make self determination. So there are different ways that you can influence
as the mediator how the case is going to be, you know, what the terms of settlement are.
Sometimes it's brackets. So a very basic what I have figured out is that some lawyers don't
actually understand the use of brackets. Brackets have to be used at the right time. Early in
the mediation is not is never the right time. Well, I shouldn't say never. I guess it depends
on how you come in and what what the demands and offers are. So I'll take that back. I
won't say never. But very rarely is a bracket effective in the beginning at mediation. So
the bracket can be I'll just use a really simple example. It is a high low, basically,
it's a high low offer to move negotiations along. There have been concrete offers. But
one side said, let's just say the defense side says we will come up to 100. I'm just
going to use really simple numbers. And so is not to confuse anybody. We will come up
to $100. If the plaintiff will come down in their demand to 300. So our offer will be
conditionally $100. If the plaintiff will come to $300. Now, the indication there is
100 plus 300 is $400. And most people will read that most lawyers will read that as a
midpoint of 200. So you take the average. So defense is offering 100. If the plaintiff
will demand 300, like come come from 800,000 down to 300. We want to cut to the chase.
$400 total divided by two is $200. So the the indication is that there is a midpoint
where you know the signal is that the midpoint it can settle at $200. Now, that is a conditional
offer. But if it is accepted by the other side, those are the new numbers 100 for the
defense offer and 300 for the plaintiff's demand. Now, the message that might be delivered
with such an offer of a bracket might be tell them not to focus on the midpoint. But they
always do. No matter what you say, they are they're going to focus on that $200 midpoint.
Defense might ideally want to pay 150 or 180. But you do kind of you really have to do after
that some incremental signaling to indicate that 200 is not the number because once you
have indicated that midpoint, then you are you know, you might be stuck with that. Or
you're going to have to do a lot of work in communicating that that that 200 is absolutely
not the number. So some that that's bracketing. Some people love it and some people hate it.
I think it can be effective depending on when it is introduced in negotiations. There is
also pure midpoint signaling, which sometimes happens from the very beginning. So it's not
bracketing, but based on the the counter number that is given by the defense or the plaintiff,
there can be a signaling. Maybe it's a four hour mediation, maybe it's an eight hour mediation,
but there can be signaling really from almost the beginning that a certain number is where
they are planning to end up. Many times it is a signal by the plaintiff lawyer. But there
are also times when the defense is also signaling a number that may happen halfway through the
day. It could happen from the beginning. But it is important to know that this signaling
can happen and is based on it's all mathematical. So whatever numbers are being demanded or
offered, the counter is indicating somewhere in a vicinity of the number that they plan
to pay or or off to offer or to take. So split the difference is a this usually a tactic
that happens at the end. If you know, you get to a number and so for example, my original
example of a bracket occurs and the numbers are just not it's not 200. The number that
the defense side, for instance, is willing to pay is not 200. Whatever numbers are being
fought over at the point where maybe another round or two has happened after the bracket.
Sometimes the parties just agree to split the difference. And then that's the number
for settlement. But it's an agreement. So one of the concepts that I kind of hinted
at was anchoring, which is a common term that people or parties use is they start they kind
of anchor at a number or an area or range really from the beginning at the mediation.
And they just they ride that same messaging throughout. So it's kind of the same concept
as as a midpoint that could be a number that is used for anchoring. But it is it is a number
that is being used by one or the other side. And it is if that's the consistent message
throughout they just you know want to send that consistent message. And that's those
are these are basic explanations of these concepts. Leverage is also an important concept
to to think about and remember leverage may exist or it may not exist. It's timing focused.
It can be a messaging that is that is sent or offer that is made or demand that is made
based on your thought that the other side is motivated by something that they may or
may not be motivated by. So you're using leverage that you think you have. It could be time.
Maybe the trial is coming up. It's a Friday mediation and trial is coming up on Monday.
And so the side that really feels like they have the upper hand maybe there is a motion
pending that the judge is going to decide on right before trial depending on how you
know procedurally things have happened. But there could be motivation to try to get it
resolved at mediation because one side or the other or both sides are concerned about
emotion that is pending what's going to happen or the you know picking the jury. There could
just be so many reasons why one side feels like they have leverage. They may use the
principle of scarcity. It could be that there is a limited again. Co-plaintiffs more damages
than money. And sometimes if you have co-plaintiffs a leverage can be used one plaintiff against
the other by the defense by settling out or offering to settle out with one party and
leaving the other party in and trial may be imminent. But it's again these are psychological
games as well. So it's you know tactics to try to get what you want whatever side you're
on you want to incline the other side to do by some pressure tactic in leverage. You know
you're trying to get to incline them to to go along with what you are offering or what
you are demanding. So these are ways that a matter can be brought to to a finish brought
to a close. And during that time the mediator has the responsibility of making sure that
you know the communications are being made that it's communications are consistent that
they are understood that everybody sometimes you're listening as the mediator and you can
tell that people don't understand maybe the impacts again more reality testing these these
skill sets from the mediator go in cycles through the phases of mediation and negotiation.
So you must always you know keep in mind that it's our job as the mediators to make sure
that everybody understands what's going on all time. So and not stress enough a case
is worth what it settles for. I said that early on the mediation I teach that to my
class and Howard Law. Mediation is is a vehicle. And what's important in what should motivate
us as mediators is that you never really know what will get the parties to arrive at the
same spot on that journey. Again, mediation is a vehicle. So I never assume I was taught
never assume anything. It's really important to understand that this process belongs to
the parties and the outcome belongs to the parties. And I am a facilitator who has been
invited and selected to take them through this usher them through this process and to
try to help them see the points in common and to compromise on those points in common.
So again, the art of affirming and reaffirming and being creative to try different different
things in order to get them to settle. I want to make sure that I say this to when you are
dealing with different parties, again, back to cultural competency. Sometimes what will
bring that matter to conclusion is again, something that they need that you cannot see.
And that is why it's so important to ask a lot of questions to try to understand how
a matter has impacted them personally, not just, you know, depending, you know, obviously,
if it's an employment case, then we're talking about, you know, personal and professional,
probably implications, but also in, you know, in a personal injury case, for instance, or
bodily injury, which is the terminology used by insurance companies for personal injury
and bodily injury are one and the same, because an insurance policy refers to bodily injury
as, you know, bodily physical damages. Personal injury is in the insurance policy is libel
and slander, you know, that's a personal defamation. That's what personal injury is by insurance
terms. But depending on the type of damages that you're dealing with and how it has impacted
someone's life and what that means to how they to how they live and it could be ethnic
culture. Those are all motivators that you may or may not hear about. And so you have
to be paying attention, again, to the different interactions that occur at the mediation table
and the different things that are being said. So when you're finalizing settlement terms,
know that everything that's been asked for or included has to, you know, has a personal,
has a very personal implication or indication of, you know, what that person needs going
forward. And, you know, everybody's supposed to feel equally uncomfortable. No one is supposed
to feel like they won at mediation. So it's important to keep that in mind. We are going
to have some questions and answers, but I want to talk a little bit before we get to
that about some of the scenarios that happen at mediation and how how mediators react or
or don't react to scenarios. If you have, for instance, an insurance matter that will
insurance touches everything. So it could be medical malpractice. I'll give an example
of medical malpractice and how sometimes mediators are called in to manage some of the the issues
that happen in a in a mediation that involves medical malpractice. You could have a variety
of doctors and now, you know, there are concerns around the tort reform in different states
and you know, how mediators manage, I guess I said react, but how mediators manage the
various moving parts in these different types of subject matters and how mediators really
should be subject matter experts to know what is what questions to ask and how how to manage.
So I'll give an example on a medical malpractice case. So in medical malpractice cases, many
of you know that you have there has to be in order for litigation to even be filed,
there has to be a an affidavit signed by whatever doctor is is allegedly negligent. There has
to be a doctor in the same discipline, the same area of medicine that writes an affidavit
for the intent to sue. Medical malpractice cases don't happen and litigate don't get
litigated initially in the same way that personal injury cases or bodily injury cases do. So,
you know, when if a medical malpractice case may be one of those cases where it could be
right for an early mediation, depending on what questions needs to be need to be answered.
There are so many different situations where doctors have either hospital privileges, or
they have their own clinic where they have their own medical malpractice or personal
liability policies. These are things that a mediator may have to manage when coverage
issues arise. There are different moving parts, different professionals that that are part
of a medical malpractice matter. So, it could be nurses if there's a surgery involved, I'm
just trying to give some perspective on the depth of some cases. Every case is different.
And again, all the parties are different, but medical malpractice, the more you do,
the more you need to do is what you discover. And so, those are cases where they are very
in depth, lots of, you know, very expert intensive. And those are factual pieces that
the expert reports, those are those are pieces that the mediator has to manage. And so, it
may be a case that's right for early mediation, it may be a case as good for co mediation
where you have maybe a doctor and nurses, you may have a hospital, you may have different,
depending on what the ledged, you may have different interests that have to be managed
by not the same attorney. It's kind of, I'll also mention a construction case. Construction
cases can be very complex, construction defect, lots of different parts because you have maybe
a general contractor and then you have different subcontractors. You may also, depending on
construction cases and what the alleged defect is, have different companies that have manufactured
parts that are used in and then subcontractors to them for component parts. So, mediation
in an insurance context can be, those are just two examples. Products is another one.
These cases can involve different component parts. It can involve the different regulatory
bodies. So, you have to know as a mediator, when you take the cases, what questions to
ask and have perspective really around the subject matter and the complexity of the subject
matter and also damages that arise from the different losses that are alleged. So, I want
to encourage you to develop subject matter expertise. Take training to understand and
in your field, many of you, I'm sure, are lawyers who have handled these kinds of cases.
The advice that I was given as a new mediator was play to your strengths. So, yeah, the
point that I want to make is it is important to take on cases where you understand how
to help these clients, these parties come to resolution. I can't stress that enough
because it's important in order to get repeat business to develop our expertise in areas,
but to also be responsible ethically as mediators. And as we take on these different types of
cases, know how to really usher. Because if we're the shepherds of the process, you've
got to understand the terrain that you're on. So, I want to stress that as well. And
I'm just trying to make sure that I hammer home the point of how important it can be
to use psychology in your communications with the lawyers and with the clients because you
are the influencer as the mediator. And I thank you for your time and attention today.
And I hope that you have learned something from me about this mediation field that we
all love so well. Thank you.
Okay. So, it looks like we only have one question here from the beginning. Let's see. I, hmm,
the question asks from Carol Scott today, what are our essential terms and an essential
terms document? Do you know what that's in regards to Rebecca?
Yes. Okay. So, the essential terms document is a settlement agreement. It is and it outlines
what the style of the case is, but you know, how it's, how it's framed in the docket. And
what the settlement was, what date, also how much, when it's going to be paid. It's, it's
an any confidentiality statement that needs to be made. It is the essential terms of the
settlement and everybody signs it before they leave. And the reason that's important that
I was stressing, we never walk away without having something signed is if you don't have
that, you're not going to have the release. So, it's, you know, essential terms just outlines
what's been agreed to and when, how much is going to be paid and when the payment is going
to be made and everybody signs it. And then the lawyers work together. So, the lawyers
work together on crafting the essential terms document. They work. It could be, well, it
is before you get off that, before you get off of that zoom or before you leave the mediation.
If they mock up a word document and they are emailing it or passing it back and forth until
the terms have been agreed to and the signatures have before you leave the mediation. And that
is just to secure the agreement before the release is done.