As the recent featured speaker, Cumberland School of Law Dean John Carroll shared with those in the audience that, in all his years of attending state and national bar meetings, he had never been to a program sponsored jointly by dispute resolution and litigation sections. It happened at the Alabama State Bar 2011 Annual Meeting, and the joint “Mediation Likes/Dislikes” program was a huge success.
How did this unusual “marriage” occur? When the Alabama State Bar asked the newly-formed Dispute Resolution Section (“DRS”) if it wanted to sponsor a program at the 2011 Annual Meeting, section council immediately said yes. A joint program was suggested, and Nick Gaede, Dispute Resolution Section chair, and Rhon Jones, Litigation Section chair, agreed. Dean Carroll, chair of the Education Committee of the DRS, agreed to take the lead.
Planning lead to a “good” problem
The planning group–Dean Carroll, Nick Gaede and Stephanie Emens Balzli–chose the topic of what practices of lawyers mediators like/dislike and what practices of mediators lawyers like/dislike. A panel format was decided upon with Judge John Ott, former Justice Bernard Harwood, Phil Adams and Cole Portis as the panel members. Required written materials were prepared by Emens.1
The only “problem” presenting itself the day of the program was the size of the meeting room. Even though it was actually a double meeting room, the large turnout made it standing room only. During the lively one-hour program, few, if any, attendees left.
Mediators’ wish list
Adams and Judge Ott (mediator panelists) explained what lawyer practices they disliked. On Judge Ott’s list were lawyers who create false expectations with the client; lawyers who “throw out” numbers without explaining the basis for the numbers, typically an unrealistic demand or offer; and lawyers who want to leave after the handshake deal and not focus on the details needed for a definitive agreement [Message: The ending is as important as the beginning].
Adams agreed with Judge Ott, adding if a lawyer wants the offer number to be considered, he/she must provide reasons for the number that are rational; lawyers who do not have decision-makers, including insurance representatives, at the mediation; lawyers who do not focus on the question of “If I do not resolve at mediation, how will the case turn out in litigation and what are the costs to get there?” [Message: The opponent is not the other side, but what is your option if you do not resolve in mediation]; lawyers who are not willing to acknowledge the client’s case has weaknesses and the other side’s case has strengths; and lawyers must be willing to compromise or mediation will not be successful.
Lawyers’ “most wanted”
Portis and Justice Harwood (lawyer panelists) were asked the same question, but reversed–“What do you dislike about mediators?” Justice Harwood included a mediator who is not persistent; a mediator who does not take the time to learn the facts and the law relevant to the case; in a complex case, a mediator who does not discuss the case with lawyers in advance of the mediation session; and a mediator who does not take time to develop some rapport with the parties.
Portis agreed, adding his dislikes of a mediator who does not establish trust with lawyers and parties; a mediator who gets in a “rut” and follows the same process for every mediation [Message: It is important to tailor the mediation process to the individual case]; and a mediator who does not lead [Message: Mediators, at some point in most mediations, need to be creative and suggest ways to resolve].
Pros and cons of pre-mediation discussions, opening statements
Dean Carroll then asked the mediator panelists if they told lawyers they would be talking to the other side in advance of the mediation sessions and, if so, did they reveal if they had talked to the other side? Both said they covered the likelihood of such contacts and would advise the other party about the contacts but not reveal any substance. Justice Harwood also mediates and said he followed the same practice. All of the panelists agreed pre-mediation discussions with the lawyers (and sometimes parties) was a valuable and essential process in complex cases, feeling they learn more and are better prepared.
The panelists were in general agreement that opening statements were usually of little value. And if lawyers made jury-type arguments, they could be counterproductive. Adams asks lawyers to advise if they want opening statements, but discourages them unless mediation is early in the case. Judge Ott rarely allows opening statements, but will if the parties insist. Justice Harwood recalled experiences when lawyers could not resist a jury-type opening, resulting in his spending several hours getting “back to square one.”
Court-ordered vs. voluntary mediation
The panel members agreed that the success rate for court-ordered mediation was less than the rate for voluntary mediation. However, they all encourage it, with the caveat that it was important for the court to be satisfied the case was “ripe” for mediation. Justice Harwood noted that the appellate order and mediation rate was high–almost 50 percent.
Panelists agreed that asking the lawyers in advance to make a list of likely deal points or even draft what each thought should be in a settlement agreement could be helpful, though Portis said, “I do not like to take the time to prepare a settlement agreement until I know there is likely to be a settlement.” Judge Ott frequently makes a list of the issues he thinks will need to be addressed by each party and provides this to each party before the mediation session.
Settlement numbers don’t always result in settlements
The wisdom of the mediator’s giving the parties a settlement number2 elicited difference responses. Adams rarely provides a mediator’s number and only if the parties request one while Justice Harwood felt a mediator’s number should be a last resort, and, if not accepted by both parties, meant the mediator could do nothing further. Portis noted that if a number given was not accepted, it was more difficult for the parties to further negotiate. Judge Ott added that the mediator’s number should be used as a last resort and only after all other efforts to reach agreement had failed.
Creative, patient, good listener top the list
Portis felt the most important part of any successful mediation is a mediator who does the hard work and is a good communicator. Adams looks for a mediator who is fully engaged, looks at all sides of the case and is creative. He noted that many lawyers have stated they were glad they settled in mediation, but few have said they were sorry they settled. Judge Ott felt patience and persistence were important. Justice Harwood said a mediator should be a good listener and gave this personal example. He and his wife were at a restaurant when a lawyer came up and praised him for a recent successful mediation. After the lawyer left, his wife asked what it takes to be a good mediator. He listed having patience and being a good listener, at which point she informed him that she didn’t feel he was a good listener. His response? “If you paid me $350 an hour, I might be better at it.”
1The materials are on the thumb drive provided at the ASB meeting. Contact Stephanie Emens or Nick Gaede for more information.
2This process–called a mediator’s number–involves the mediator’s providing the same number in confidence to both parties. Then each party tells the mediator, but not the other party, yes or no. If both parties respond yes, the mediator advises that the case is settled. If both respond no, the mediator advises that the case is not settled, but does not tell either party how the other responded. If one party says yes and the other says no, the mediator advises that the case is not settled, but does not tell either party how the other party responded. This way the party who said no does not know if the other party said yes or no.
