Dealing with impasse is an issue that arises in nearly every mediation that I handle. There are many different ways to address impasse depending on the circumstances of the particular mediation. In certain circumstances I like to suggest to the parties what is referred to as a mediator’s proposal. Determining the “certain circumstances” is more an art than a science but I generally consider a mediator’s proposal when all else has failed to break the impasse and when he impasse may be due in my perception to posturing on the part of one or both lawyers. Let me explain the process.
First, this is not something I will unilaterally do. All sides need to consent to the process and want me as a mediator to make this proposal. I will make the suggestion to all parties and if there are no objections I will proceed.
Second, there is a procedure to this process that must be followed in order for it to be effective. As silly as it may sound I insist that this process be followed exactly as outlined. If all parties agree I will ask them what would be a reasonable amount of time to expect a response to the proposal. I will explain that I will provide to them separately, and in writing, my proposal and they will have until the designated time to respond to me that they are ready to provide an answer to the proposal. I do not want the response from any party until all parties are ready to provide a response.
Third, when all parties are ready and able to respond I will ask for a simple “yes” or “no”. If all the responses are “yes” we have a settlement. Anything short of that there is no resolution.
Finally, some seem to think that the mediator’s proposal will always simply be the midpoint of the impasse. That is not necessarily true. I base my proposal on a number of factors. What is a reasonable settlement of this claim? What is a number that will be likely to get this case settled? Which party has the most to lose if the case does not get settled? My proposal is not always simply a midpoint.
As always, let me know if there are any questions.
Anyone that has ever negotiated anything knows the oft repeated phrase “the devil is in the details”.  In my experience as a mediator, I have found that often the parties or their lawyers leave until the very end what are often times significant and important terms of the settlement. I am not suggesting that this is intentional.  In fact most times I believe the terms left until the end are terms that the proposing party is so familiar with that it actually is just an afterthought to bring them up. They assume that these terms are understood because they are so familiar to them – and you know that maxim about what happens when you assume something.
What are these devilish details? The most common one that I encounter is a confidentiality/non-disclosure provision. Such clauses are common place with many corporations but not always viewed as implicit by the plaintiff’s bar. I have seen tempers flare when the parties believe a settlement has been reached but then learn that the defense wants confidentiality which has not been mentioned all day. If confidentiality/non-disclosure is going to be a required term of any agreement bring it up at the start. Better yet, if you are representing the party that is insisting on confidentiality bring a draft of the provision you are going to propose so the other side can have a chance to review it during the mediation.
Another common detail in the employment context are non-disparagement clauses, no re-hire provisions and the details of any reference letter. All of these are important to the overall settlement of an employment claim and deserve serious discussion at the start of the mediation and throughout the mediation session.
What are some others? If the paying party wants to discuss payment terms or payment over time obviously that is something that should be discussed from the beginning. Likewise indemnity and hold harmless clauses as well as liquidated damages provisions should not be left until the end of the day.
While the parties may not want to discuss the terms of settlement until a dollar value settlement has been reached the mediator should make sure these provisions are on the table right off the bat. It is very easy for the mediator to inquire of the parties, either in joint session or in the initial private caucus, whether there are other terms of settlement such as the above that need to be discussed.
As always, if you have questions please let me know.
When you go in to a mediation do you have a plan? If not, I think you are making a big mistake. You would never go in to a trial without a plan. Neither should you enter the mediation room without one. Preparation involves knowing your case – who, when, what, where and why of the case and making sure you have all your documentation together and ready to provide to the mediator and other participants if necessary. Having a plan means having a strategy in place as to how you intend to proceed in the mediation itself.
Many participants think this simply means having decided on what your opening offer is going to be with little to no thought as to what happens after that, other than what the final number or range of settlement will be. Proper planning means first giving serious consideration to what your weaknesses are and having an open and candid discussion with your client regarding those problems. It also means considering the other side’s strengths as well as weaknesses. Good planning entails a game plan of what strength or point you intend and at what point in the process. Saving the best for last is not always the best approach, particularly if it is something that the other side may not be aware of and will need some time to adequately assess. One of the more effective mediation presentations I personally witnessed was a lawyer that put forth a different point with each offer, including a final point that tipped the ultimate settlement to her advantage.
Much like preparation I think it is a big mistake to not spend time developing your plan for mediation in advance. Don’t just show up and wing it.
As always, if there are questions please let me know.

While I have written previously about the use of “Med-Arb”, the concept of binding mediation was foreign to me until recently.  I read an article written by Peter Gene Merrill entitled “Binding Mediation: The Time Has Come for This ADR Process.”  The process is quite simple as described by Mr. Merrill:

“Binding mediation commences with a standard mediation process.  Should the parties reach impasse any issue(s) through the standard mediation process, the mediator will be called upon to make a final and binding decision that will settle the unresolved issues.”

Binding mediation is a concept that should be attractive to both insurance companies and plaintiffs’ lawyers alike.  This process seems perfectly suited for the smaller damage personal injury cases to save the costs and expenses with either arbitration or a court proceeding.  I can also envision this process working well in smaller, less complicated workers’ compensation claims.

This process may not be appropriate in every situation but it is absolutely something to consider.  Binding mediation is a tool that I am adding to my list of services.  If you have any questions, please let me know.

I mentioned in the last blog the importance in my opinion of having a pre-mediation caucus (fancy mediator jargon for a phone call) with the lawyers involved in the case. I do not always have the mediation submissions by the time of that call – it is helpful if I do, but not required. I always learn something about the case in these calls that is helpful. Every single time.
The lawyers representing the parties are far more at ease in this context than in front of the client in the actual mediation session. I hesitate to say that they are more honest with me in this call but they are certainly more objective in their assessment of the case than they are in either the mediation submission or during the actual mediation session.
After exchanging pleasantries (or grumbling about the weather), I usually just ask for the elevator explanation of the case and what it is all about. If I have had the benefit of reading the mediation submission before this call I will ask any fact specific questions that might be raised by what I have read. This is also my chance to explore and make sure that the lawyer I am talking with has all the documentation he or she needs to be ready for mediation day.
From facts and documents the conversation will then switch to whether the lawyer believes that settlement is possible. If the mindset coming in to a mediation is that settlement is not possible it will make for a very long (or short) day. This is my chance to begin to address the possibility of impasse and how we might deal with that inevitability. It is also my chance to find out if the client has unreasonable expectations and/or the lawyer has client control issues. Telling the mediator about those issues is not a sign of weakness but rather a sign of being a good lawyer. As a mediator the more I know about those issues the easier my job becomes.
I will also ask the lawyer for any suggestions as to how to approach the mediation. I strongly encourage having a joint opening session. I know that this is frowned upon by some lawyers and I think the reason is less a fear of potential tension between the parties and more a fear by the lawyer of losing control. I have mediated cases where the parties hated each other so much it would have been a disaster to have them in the same room across the table from each other. Those situations are the exception rather than the rule, however, and I do my best to get the lawyers on board with meeting together at least for a short time.
Finally, I will ask the open ended question of whether there is anything else the lawyer thinks I should know. Some enlightening responses often come form that question. I also will ask who is planning to come to the mediation. I want to know this so I am not surprised by who or the number of folks in attendance.
As always contact me if you have any questions.
The more mediations I handle the more I learn how much mediation is a service business and the more I understand the services I can provide to distinguish my practice from that of others.
As I have said before, a mediation does not just start at the designated time and place and end when it either settles or impasse is reached. Mediation is a process that starts at the initial contact with the parties seeking my services as a mediator.
At contact I learn the names of the participants and the general nature of the dispute. As my mediation practice is out of my office with a longstanding Sioux Falls law firm after getting that information I check to see if there are any conflicts of interest: Can I truly be a neutral in this particular dispute? Assuming no conflicts exist the next step in the process is to get more information from the parties including more details about the dispute and when and where the parties would prefer to hold the mediation. One of the advantages of practicing where I practice is the availability of many conference rooms to accommodate the parties. Many times the lawyers prefer to hold mediations at my office because of the conference rooms and because it truly is a neutral location – no “home field” advantage for anyone (although I don’t believe there really is such a thing in mediation).
After those details are obtained I discuss with the parties the costs of the mediation and how those costs will be paid. I have started handling mediations on a flat fee plus tax and costs. There are two reasons for this decision. First, I have spent over thirty years of my professional life keeping track of my time is six minute increments and it finally drove me over the edge. More importantly, though, I have found that the participants like to know with certainty what this will cost them.  In insurance covered matters it used to be common for the insurance company to agree to pay the full cost of the mediation as a final term of settlement. That practice has changed and is the exception rather than the rule.
The next step in the process is to send out the confirming letter to the participants along with the Agreement to Mediate. In this letter I confirm my billing arrangement and how the bill will be paid and give the participants instructions on what I would like to get from them by way of a mediation submission. It never ceases to amaze me how many people either do not read the letter I send or simply choose to ignore my instructions. Please read the letter and send me what I am asking for. It will make the process much smoother.
The next thing that I do before the actual mediation itself is to spend fifteen minutes or so on the phone with the participants or their lawyers discussing the case and the issues. I always learn something valuable about the case in this call. It also gives me a chance before we are all in the same room to start addressing the possibility of impasse and how we might want to deal with that. I believe that impasse and how to avoid it should be addressed early in the process.
I have covered the process of the actual mediation itself in earlier articles and will not go in to detail on that again. When the day of mediation has ended we either will have a settlement or not. If the case has settled at mediation I will have the parties reduce the verbal agreement to writing and I have a Memorandum of Agreement that can used to effectuate this written confirmation.  I will also confirm the settlement via email that same day or at the latest the next day.
If settlement is not reached and the parties ask me to, I will stay involved in the process. Most of the time that involves follow up via email or phone. Occasionally we have reconvened for another session but I would say that is the exception rather than the rule. I think an important part of the service I provide is that continued follow up if necessary.
As always, please contact me if there are any questions.

Mediation is a process which starts at the initial contact with the parties or their lawyers. In that initial contact I want to find out how interested the parties actually are to resolving the case. I also want to start dealing with expectations and the possibility of impasse and how to deal with it. The mediation process runs smoother if the parties have exchanged necessary information, documents, etc. sufficiently in advance of the mediation. Nothing puts an end to constructive progress faster than a piece of important evidence surfacing during the mediation. In my view the parties should be encouraged to share at least part of their mediation submission with the other side in advance of the mediation. If there are matters that for trial strategy reasons need to remain confidential prepare a separate submission to just the mediator addressing those issues. The mediation process works best when all necessary information has been exchanged.

 

The parties to every mediation have interests that they are trying to satisfy. Whether those interests are substantive or procedural or more of a psychological nature (an apology, acknowledgement of wrong doing, respect etc.) there is always an underlying reason why they want what they want. Ascertaining those interests is the job of the mediator and many times can be uncovered by simply asking the party to explain why their position is important to them.

In contract to an interest, a position is probably best described as being the demand being made on the other party – what they want out of this claim. In the common case of a injury action that is almost always money, “I want $100,000 to settle my claim”. An interest though is deeper than that. An interest is the need or motivation justifying the position – the reason the party wants something. So, in the example of the personal injury action the injured party wants money (position) and the reason they want the money (interest) is to cover medical bills, catch up on their mortgage payments, pay college tuition, start a business etc. When parties negotiate only based on positions settlement can become very difficult and impasse often results. When the interests of the parties are considered negotiating a mutually acceptable result is far easier and results in a more satisfactory agreement.

After over 400 mediations I had finally stumbled upon why so many of those mediations often turned on issues that had nothing directly to do with the dispute – things that were important to the participants and were crucial to getting the case resolved but many times had little or nothing to do with the claim at hand. I had made that very comment in my initial orientation session with the parties more times that I can count, often with amazement: “why many times what is important to the parties has nothing to do with the claim we are mediating…”. And then it finally hit me: what I was experiencing and describing was the fundamental difference between positions and interests.

I have never claimed to be the brightest bulb on the tree and most mediators probably had this “Aha” moment far sooner than 400 plus mediations. Even though I wasn’t able to pigeon hole what I realized into the category of positions versus interests I am relieved that I at least recognized there was more going on behind the scenes of the cases I mediated.

Twenty plus years ago when I was first exposed to mediation as a means to resolve disputes the practice was limited almost exclusively to resolving disputes within the judicial system. Pending lawsuits or threatened lawsuits seemed to be the only use we could imagine at the time for mediation. Resolving disputes that are within the judicial system is still firmly entrenched in the practice of most mediators but the efficacy of mediation has caused society to expand it’s collective imagination far beyond that limited boundary. Presently, it seems the use of mediation as a means to resolve disputes is nearly limitless. Disputes outside the court system are increasingly (and successfully) handled through the mediation process.

Possibly the best example of this involves issues commonly faced by families involving the elderly: estate planning and distribution, financial independence, guardianships, long term care and other related issues. These issues are now regularly being resolved through mediation rather than costly and protracted family fights. Mediation in this setting provides a safe place for family members to find solutions that all can live with and allows for the exercise of the very hallmarks of mediation: self-determination and confidentiality. Pilot programs currently exist in several states that are dealing with this very issue:

https://www.americanbar.org/content/dam/aba/administrative/senior_lawyers/session%205%20-%20ACR%20Eldercaring%20Coordination%20Initiative-Mission-Purpose.authcheckdam.pdf

While South Dakota is not one of the pilot states at this time mediation can still be used to deal with these difficult issues between family members.

For similar reasons, mediation is also being used on a regular basis to handle issues pertaining to special education disputes between parents, teachers and administrators; to handle disputes between neighbors; issues that are presented to homeowner’s associations, Better Business Bureaus, Chambers of Commerce; workplace disputes between employers and employees; and a multitude of disputes involving organizations of all types. It is an exciting time to be a mediator as the possibilities for mediation are unlimited.

Corey Denevan and I would be happy to discuss with any of you any of the issues addressed in this blog. Please do not hesitate to contact us for your mediation needs.

I spent over thirty years litigating claims and it simply wore me out – physically and mentally. It was my job over that time to fight and try to win for my clients. In the course of that time in an adversarial system I witnessed first hand how an adversarial system negatively impacts all involved in the process: clients, lawyers, judges and juries. The system is particularly hard on the clients and witnesses – it is no fun to have nosy lawyers or insurance companies picking through your life, often times the most personal of details, and only then after enduring that ordeal to have to bare your soul to a judge or jury. Money is spent prosecuting and defending the case over a lengthy time with the result ultimately being one that makes no one happy because of the costs and most importantly because the end result is out of the parties’ control. In most litigated and tried cases, no one wins.

Whether it is mediation or arbitration or some combination or variant thereof, alternative dispute resolution works. In my opinion and experience the success of ADR is well established – anecdotally and otherwise. It saves money and time and wear and tear on all involved. And ADR leads to results that the parties can live with.

ADR can happen quickly and is relatively inexpensive. Most mediations that I do cost about $2000 in mediation fees which is typically split between the parties. With mediation, the end result is one the parties design and control. It is not a decision made by anyone other than the parties. While arbitration involves a decision made by an arbitrator, the end result is designed to occur quicker and with less expense and hassle than a full-blown trial.

I want to see you avoid what I described in the first paragraph above. I want to see you save money and time and wear and tear and craft a result that you can live with. This is why I believe in what I am trying to do by establishing a full-time practice as a mediator or arbitrator.