After thirty-two plus years practicing law I have had more than my share of clients tell me that their particular dispute was not about the money. Any lawyer practicing for any length of time has had the same experience and usually when a client says it isn’t about the money it typically is ALL about the money or becomes about the money once the client gets the first bill. One of the reasons I love mediating employment/workplace disputes is that many times these disputes are truly not driven by money and allow for creativity with non-monetary terms.
For example, letters of reference or recommendation can often be negotiated as a part of a settlement many times to include langauage that is different than what the employer may typically use. Mutual nondisparagement clauses are another example – I won’t badmouth you and you don’t badmouth me. Amending the employee’s personnel file to change a termination to a resignation is a simple but effective non-monetary term. Changing shifts, work stations or supervisors can also be considered for current employees.
The list could go on and on depending on the particular case. Do not lose sight of the fact that many times employment disputes truly are about more than money so open your mind and be creative.
While the parties control the outcome of a mediation, the mediator manages the process from which the outcome flows. The preceding post mentioned the fact that a mediator is obligated to conduct a quality mediation and protect the “quality of the process”. What does that mean? Is a quality process simply good coffee and donuts? While good coffee and donuts may very well be desirable, the concept of a quality process is far more than a palate pleasing environment.
The Model Standards of Conduct for Mediators (“Model Standards”) addresses the issue of the quality of the process in Model Standard VI. This particular standard is lengthy which in my opinion emphasizes the importance of the quality of the process in mediation. This post will not attempt to address each subpart of Model Standard VI but rather will address several important concepts that are the cornerstone of quality.
The most important concept to a quality mediation process involves procedural fairness, participation by the parties and mutual respect. The mediation process is about the parties, not the lawyers or the mediator, and the parties should be allowed to have their voices heard in a fair, respectful manner. Many times that requires that ground rules be established at the start that everyone will have an opportunity to speak, uninterrupted by others. Providing a quality process also obligates the mediator to promote honesty and candor between all that are participating and a mediator must not knowingly misrepresent any material fact or circumstance during the mediation.
The concept of timeliness, diligence and presence of the appropriate participants is also important to the quality of the process. Mediation is a form of alternative dipsute resolution and one of the overall goals is to provide a process that can happen in a timely and efficient manner. The mediator must be able to meet the parties expectations as to timing of the mediation and be prepared to devote the time and attention essential to an effective mediation. In short, the mediator should not accept a mediation that will likely last all day when he/she only has a half day available and let his/her ego drive the belief that it can get resolved in a half day.
Having the appropriate participants physically present at the mediation is one of my personal pet peeves. It is so important to the process for an individual to be present. Mediations take on a life of their own and it is impossible to explain to someone on the telephone all of the nuances of what is transpiring. Yet, to save money, most insurance companies do not send a representative to be physically present except in rare cases. As a mediator in the private sector all that I can do is emphasize the importance of physical presence. Judges can order participants with decision making authority to be present. I cannot.
Finally, the mediation process must be safe and ensure that if any of the parties have competency issues that those issues are addressed through appropriate accommodations or other adjustments. Consistent with the preceding paragraph, if any party is having difficulty comprehending or participating in the mediation, procedural fairness requires accommodation to allow that party to exercise their self-determination in the ultimate outcome.
I blew out my knee twice playing college football  As a consequence I have more than a passing familiarity of the anatomy of the human knee. Does that knowledge of the knee’s anatomy mean that I am competent to perform knee surgery? The answer is obvious and despite my personal familiarity with the anatomy of the knee you do not want me operating on your knee. Similarly, mediator competence needs to be viewed as more than familiarity with the subject matter of the matter to be mediated.
The Model Standards for the Conduct of Mediators (“the Model Standards”) obligates a mediator to accept a mediation only when the mediator has the necessary competence to “…satisfy the reasonable expectations of the parties.” Model Standard IV. Does this just mean familiarity with the subject matter to be mediated? The answer is no.  The Model Standards specifically point to training, experience in mediation, skills, cultural understandings and other qualities as factors in determine mediator competence. Model Standard IV does not even specifically mention subject matter familiarity unless that fits generically under the catch all of “other qualities”. Further emphasizing this point is the portion of the rule which encourages the mediator to attend educational programs to maintain and advance the mediator’s knowledge and skills related to mediation as a means of establishing competence in order to meet the reasonable expectations of the parties.  Model Standard IV A2.
Having substantive knowledge of the subject matter of the mediation can certainly be helpful but far too many people looking to hire a mediator place almost exclusive emphasis on subject matter experience. Such substantive knowledge alone does not mean necessary competence to satisfy the expectations of the parties for purpose of mediation. The most important aspect, however, when looking for a mediator is to find one that is competent in the skills and knowledge of mediation. After all the mediator has a duty to conduct a quality process and that is hard to do if the mediator does not know or understand what a quality process entails.
It is likely no coincidence that self-determination is listed as the first standard in the Model Standards of Conduct for Mediators (“the Model Standards”). The Model Standards were designed to “…serve as fundamental ethical guidelines for persons mediating in all practice contexts.” Self-determination is not just a discretionary academic principle: a mediator is required to conduct a mediation based on this principle and this principle applies at any stage of the mediation, “including mediator selection, process design, participation in or withdrawal from the process, and outcomes.”
Self-determination is defined by the Model Standards as “…the act of coming to a voluntary uncoerced decision in which each party makes free and informed choices as to process and outcome”. A mediator is still allowed, however, to conduct a “quality process” in accordance with the Model Standards and the parties are to be reminded of the “…importance of consulting other professionals to help them [the parties] make informed choices”. The professionals often consulted and relied upon to help the parties make informed choices are most often the lawyers representing them in the matter.
The fact that mediation is not about the mediator is underscored in the last portion of Section I of the Model Standards. Self-determination may not be undermined for reasons such as “…higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”  Mediation is about the parties, not the mediator.
I mediated many cases before ever having had any training, formal or otherwise, as a mediator. My impression of a good mediator before training was of someone who didn’t engage in any of the “touchy feely” stuff like joint sessions, interests of the parties or self-determination. A good mediator was forceful, got right to business and imposed his will on the parties if necessary to get the case resolved. A good mediator was judged by how successfully they got cases settled. That is what I expected from a mediator in my role as a lawyer participating in a mediation and that is how I would handle mediations as a mediator. If getting cases resolved was the measure of success then I was pretty successful. I felt good. It was all about me.
My eyes were opened in March of 2016 when I completed my formal mediation training. I learned the fundamental concepts of confidentiality and self-determination. I learned that a good mediator was a good listener.  Most memorable was what occurred in one of the many role playing sessions during the training. It happened during a scenario that was closest to what I had been doing the past ten years – mediating a personal injury action. I was in my element and would “wow” everyone with my prowess and ability to get this case resolved.
 During the opening joint session in this role play I asked the plaintiff wife a very pointed, personal question about the whereabouts of her husband. The role playing fact pattern had revealed his whereabouts – he had split from his wife earlier. I knew the answer and simply wanted to reinforce in her mind the impact this fact would have on her case. “So, why isn’t your husband here with you today ma’am?” I asked. The trained mediator moderating the exercise nearly flew out of his chair and stopped the entire scenario. I was confused. “Why in the world would you ask that question”?, he demanded. “Because I believed it to be important in getting this case resolved,” I replied in anger. “It’s not about you!”, he replied.
I will admit to being more than a little bit upset and embarrassed by the events as well as flustered for the balance of the role play. But this single incident over two years ago has stuck in my mind in every mediation I have handled since that time. This is not about me. Mediation is about the parties resolving their dispute in a manner that they come up with. My job as a mediator is not to forcefully impose my will in order to get the case resolved. My job is to listen to the parties and their wishes. My job is to protect the process as best I can to allow the parties an opportunity to be heard, have their interests considered and reach a result that they craft and can live with. None of this is about me. And my success as a mediator should not judged by the number of cases that “I get resolved”. This is not about me.
 Most of the mediations that I handle involve parties that are represented by legal counsel. Many of the lawyers are impatient with the process and seem to view mediation like any other adversarial proceeding, allowing their egos to define their role as crucial to the mediation and without which the mediation would not exist. Sorry, but it’s not about you either.
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.