Help The Mediator Help You

What To Do About Ned?

Help The Mediator Help You

What Makes an Effective Mediation Brief?
 

Try to think like a mediator. Do you know what the mediator needs to help you settle your case? If not, ask. If your mediator is not conducting a pre-mediation conference call with you, initiate that call yourself. Then, retain another mediator for the next case, because any good mediator should be convening these calls as a regular part of the mediation process. A preparatory call with each side separately is part of my process and included in my fee. I do not know a reputable, effective mediator who does not do this.

Of course, your mediator will need to understand the basic facts, law, and procedural posture of the case, but an experienced, effective mediator is really interested in discovering the likely barriers to settlement. I am interested in helping the parties resolve their dispute, and I don’t need detailed briefs to do that.

In most cases, an effective mediation brief should take about five pages (1500 words). That’s it. Seriously. Below is a topic outline.

  1. Summarize the case, bullet point key factual disputes (attach evidence supporting your client’s position), and briefly discuss key legal issues. This does not mean including a paragraph about the McDonnell-Douglas test in every employment discrimination or retaliation case. It means educating the mediator on any point of law that is particularly important in your case.
  2. If you are the plaintiff, summarize the basis for your demand and attach supporting evidence. Demanding $5,000,000 because “that’s what the client wants” (yes, a lawyer told me that) without any rationale is not helpful to the process.
  3. Summarize the procedural posture of the case (if a complaint has been filed). What is the status of depositions and other discovery? What are the key deadlines? When is trial?
  4. Summarize any settlement discussions. Include each party’s last settlement position and any documentation thereof.

    And most importantly:

  5. Summarize perceived barriers to settlement. In other words, why do you need a mediator? If there were no such barriers, presumably, counsel could settle the matter themselves. These usually include personality conflicts, worries about setting a precedent, outside influences, etc. This section will likely be the hardest section for the advocate to prepare and the most useful for the mediator.

What about exchanging briefs? I urge the counsel to exchange briefs in every case. Almost nobody does. If you prepare the type of brief I described above, the only reason not to share the entire brief is if there is something in section 5 that will likely create an additional barrier to settlement if disclosed. In that case, delete that section from the version of the brief you provide to the other side.

I guarantee that submitting a brief like the one I described and exchanging the brief with the opposing party will be invaluable to the mediator you select and make the entire process more efficient and effective.

Ready to book a mediation?

CHECK FOR AVAILABLE DATES ON MY

REAL-TIME CALENDAR

What To Do About Ned?

What To Do About Ned?

What To Do About Ned?

A Family Mediation

The impasse on whether to look for an assisted living facility for Ned or to find caretakers to come into the home was resolved with a simple question. What was that question? By now, I’m sure you’ve figured it out. Neither Jane nor Sharon directly asked Ned, “what would you like to do?” Each made assumptions based on their own preferences and filters. When Marjorie interrupted the discussion to ask Ned his opinion, he said he would prefer to move to an assisted living facility because he felt he would have more opportunity to socialize than he would if he remained in his home. Voila – problem solved! The search has begun for an appropriate assisted living facility for Ned.

There are a number of lessons about conflict resolution that can be drawn from this simple, real-life example. First, a conflict does not have to be acrimonious. Here, Jane and Sharon recognized that the other wanted what was best for Ned. Second, parties to a conflict always bring personal preference (or bias) to the table. Based on their respective perspectives, Jane and Sharon each thought they knew what was best for Ned. Third, there is no such thing as a stupid question. The only stupid thing is not to ask. Once Ned was asked what he wanted to do, the problem was solved. Perhaps Sharon or Jane had asked Ned prior to the meeting. If so, perhaps he gave a different answer. Or, perhaps they hadn’t understood what he wanted. Anyone who knows Ned immediately realizes that his desire to continue to be social is consistent with who he is. The rationale for moving into an assisted living facility seems obvious in hindsight. It should have been the first question asked at the meeting, not the last. Although this was not a litigated matter, there are lessons for attorneys and mediators handling such disputes: always, always, focus on the wants and needs of the parties. Don’t make assumptions. Ask questions and keep asking. Most conflicts are resolved when parties ask questions and really listen to the answers.

Ready to book a mediation?

CHECK FOR AVAILABLE DATES

REAL-TIME CALENDAR

The Taxonomy of Mediators

The Taxonomy of Mediators: Bullies, Butterflies, Status Quo, and Compliance

The Taxonomy of Mediators

Bullies, Butterflies, Status Quo, and Compliance

 

Continuing with our discussion into the four basic mediator personality types, Paul breaks down his taxonomy as follows:

Bullies, as their name suggests, want immediate results. Bullies seek power and authority, prestige and challenge. Inexperienced mediators, especially if they are used to adjudicating as opposed to mediating,  are more likely to adopt this posture than those with more experience. Often a bully is a true expert and demonstrates little tolerance for attorneys who are not quite as versed in the relevant area of the law. If a bully wants others to weigh the pros and cons of an action and calculate risks, he will tell the party what the pros and cons are and refuse to hear a party’s take on the pros and cons. A bully is likely to be extremely evaluative rather than facilitative, and forceful about pushing his evaluation on the parties. The worst bullies are those who simply tell each party:  “you are going to lose,” or “you are going to spend a lot of money” without any cogent analysis.  Bullies are predictable. They try to scare each party into settling rather than persuading them that it’s in each of their interests to do so.

If the mediator is a bully, mediation is more likely to come to a quick, sometimes abrupt, conclusion. Any settlement, if at all, would tend to be accomplished quickly. While this style may be appropriate and successful in some situations, most people end up feeling short-changed in that they often want to air out their grievances.  In these situations, even a settlement can leave a party feeling bad about the process.

Butterflies. Butterflies are articulate “people person” types who make favorable impressions on others. They want to be popular, and social recognition is important to them. Butterflies need others to seek out the facts and focus on the task at hand by being nice, building rapport, and appearing interested in what a party says.

A butterfly-type mediator is often able to keep a dialogue going, even when the parties do not appear to be making much progress, so that parties do not reach an impasse or walk out too soon. The chances for a settlement between two parties is increased with a well-respected, butterfly-type mediator.

Butterflies may challenge you by making you feel bad about your position by contending that it makes you look unreasonable.

Status Quo Mediators. Status quo mediators are patient people who prefer security and social norms, and the generally accepted status quo, unless valid reasons indicate change is necessary. For example, they may look at an email and presume that most people who respond to emails read them. If you contend that you did not get the email, he will suggest that you have responded in bad faith, because a generally accepted social norm is that if you receive and respond to an email you read the original message.

Frequently, status quo mediators will continually ask you “does that make sense?” That statement is always made, because sometimes, a position articulated may not make sense on its face. You must be ready to defend your position with responses that sound reasonable based on social norms.

Compliance Personality. Compliance types tend to concentrate (and sometimes overly focus) on details. They focus on key directives, standards, and timelines. When you are unable to work with them on key details, they will discount your case and make you feel like your case is worth less than what it is.

The message to attorneys and clients is that personalities matter. While not every mediator fits neatly into a single category, the process and outcome of any mediation will depend, in large part, on what type of mediator is at the mediation. Or at least what personality traits come out during mediation. Attorneys should help their clients prepare for a mediation by selecting the mediator whose personality the attorney believes is most likely to facilitate an agreement. Not only that, but attorneys should provide their client an assessment of the mediator’s personality so the client knows what to expect and how to react to what the mediator says and does.

Resolve your case through mediation.

Call me at 626.469.5070

Why Mediations Fail

Why Mediations Fail

Why Mediations Fail

Continuing our conversation, Gene proceeded to ask me several questions around good mediation strategies and tips to settle matters successfully.

GENE: What about the idea of using retired judges as mediators? I do a lot of insurance coverage work for policyholders, and the insurance companies usually insist on it.

MICHAEL: I mean no disrespect to retired judges, but really, I would rather pick 12 mediators off the street than 12 retired judges to mediate. Retired judges are accustomed to settlement conferences where they often suggest to each side privately, very early in the process, that their case has huge problems, and they need to get the case resolved. Effective mediation requires a lot more than that. I don’t view my role as simply carrying numbers back and forth. I’m usually on the phone with both sides well before the actual mediation to start getting information and to try to position the case for a favorable outcome. One other thing I’d like to say, though. For a matter to settle, all parties have to have skin in the game. That’s why I’m not a fan of mandatory mediation in the court system. It’s simply checking a box.

GENE: What kind of information do you look for in a pre-mediation submission or discussion?

MICHAEL: The first thing I want to know is, what is the procedural posture of the case? Have there been discovery motions? What’s been done? If one side claims they don’t have enough information, I will nicely ask them why a discovery motion hasn’t been filed. I also want to know about each side’s relationship with opposing counsel. Have you worked with them before? I find that there is less animosity between lawyers these days. But if there are issues, I need to know about them so that I can do my best to remove roadblocks. But with so many lawyers, often I get into a situation in which the lawyers don’t know each other. But I basically want to know about the personalities involved so I can begin identifying potential obstacles to getting the matter resolved. I also want to know whether there are any client control issues involved, because I can help with that as a mediator. I generally like to get the mediation briefs and review them before I call the lawyers from both sides and begin working the phones before the actual mediation session.

GENE: Are there some specific negotiation tips you can give?

MICHAEL: The most important thing is to do your homework thoroughly. I like to analogize to the issues with buying a car. Car salesmen like to have you drive the car first and picture yourself in it, so they can begin getting you hooked. Then a lot of them use the “4-square” method. You may be familiar with it. The salesman divides a sheet of paper into four boxes: your trade value, the purchase price, down payment, and monthly payment. This is supposed to help you and the dealership come to an agreement, but it’s really kind of a scam. The numbers are generally nonsense and are designed to distract you from the overall price of the car. They almost always lead to the old “good cop/bad cop” scenario where the salesperson tries to convince you that he’s negotiating on your behalf with the sales manager. To avoid getting the wool pulled over your eyes, you should do serious homework before going in. How long has the been on the lot? What’s the going rate is for that kind of car? Stay focused on the actual price of the car. Complex negotiations aren’t much different. You have to stay focused on the actual goals and not get distracted by all the noise, and the only way to do that is through serious homework. All the wonderful negotiation strategies in the world won’t help you if you didn’t do your homework. And I would say the second most important thing is patience. Don’t be in such a hurry to get to resolution. Take your time, ask your questions, get information so you can make good decisions.

GENE: What do you do when one side in a mediation is being unreasonable, especially with the first number? Because I do insurance coverage work, I often see that. Insurance companies and their lawyers like to prove how tough they are by coming in with lowball offers, even in horrific cases with clear coverage. I expect it after doing this for 37 years, so it doesn’t faze me, but clients, even sophisticated business clients, sometimes get angry and the negotiation goes off the rails.

MICHAEL: It’s an interesting question. I handle a lot of employment cases, and as a rule of thumb, plaintiffs’ lawyers usually come in with demands that are 3 to 5 times what they believe the claim is worth. But if I think an initial demand is so high that it may throw the discussion off the rails, I will take the lawyer aside and say, “that is not a productive first offer.” I will try to get them focused on turning the map around, which usually helps if they are really interested in getting the matter settled. I may say something like “if you demand $1.3 million, what do you think their counter will be?” If they’re honest, they will generally tell me a number that is quite a bit removed from the demand. My next question will be “how is that helpful then?” Also, I will usually spend time before the mediation working on getting numbers into a reasonable range. If one side or the other insists on an unreasonable first number, I will say something like, “I just spent time getting them into a better range. The number they’re giving you is just a signal.” My theory is that if I can do the groundwork in getting the first demand and counter into a somewhat reasonable range, I’m serving both parties well. My goal is to settle the case and not let either lawyer look bad in front of their client.

GENE: What do you do if you get the sense that either lawyer is being unreasonable?

MICHAEL: Well, the truth is that sometimes the clients can be smarter than the lawyers. I don’t try to drive a wedge between the lawyer and the client. I don’t think that’s productive. What I usually say is something like, “You’re paying the lawyers for their expertise, and they’re very good lawyers. But let me tell you how I’m looking at this, and how a court might look at it. I want you to be aware of the risks.”

GENE: You talked to me earlier about your “mediation bingo card.” I thought that was hilarious. What does it mean?

MICHAEL: It’s a collection of the sayings I often hear. “This is extortion” is a big one. The other big one, which is actually the center square on my bingo card, is “This is not about money, it’s about principle.” We all know it’s almost always about money. Sometimes I’ll ask the person who says this, “Are you rich enough to litigate on principle? Because litigation is pretty expensive.” So, I try to ask pointed questions to keep people focused on the goal, which is to reach resolution. I also try to give both sides as much control as possible over what the settlement looks like. Going back to my car analogy, I want them to see themselves driving the car. I personally try to keep focused on the fact that 95% of cases settle anyway, without mediators, so what’s my value add? My value add is to help deliver both sides a settlement that gives them confidence that they weren’t taken advantage of and eliminates any buyer’s remorse.

GENE: Mike, this has been great. Thank you so much.

MICHAEL: My pleasure.

Resolve your case through mediation instead.

Call me at 626.469.5070

The Bonus Claim

I'll Never Use That Mediator Again

The Bonus Claim

The client had worked for the company for about five years.  He resigned in January 2021 to take a job with another company.  Once at the other company, he talked with the General Counsel of that company and told him that his prior employer had refused to pay his bonus for 2020 claiming the company had no obligation to do so because the employee had voluntarily resigned, the bonus plan was discretionary, and it provided that a person had to be employed at the time the bonus was paid in order to be eligible.  The General Counsel called my colleague who called me and asked if I would take a look at the issue.  I did and decided to represent the client.  I was told the bonus should have been about $50,000 and that bonuses had been paid, historically, in December as the company was on an October 1 fiscal year.

Pre-Litigation Settlement Efforts

After reviewing the facts, I thought this would be a pretty easy case to resolve.  The company was a large company whose General Counsel had practiced at a top law firm.  The client had received a bonus in each year of his employment.  The bonus had always been accompanied by a letter from the CEO.  The most recent bonus letter described the formula on which the bonus was based.

The client told me his bonus was not paid in December because of an ongoing internal investigation.  The CFO told the client his bonus would be delayed until the investigation was completed, although the company would not provide him any estimate of when that was expected to happen. The CFO also told the client he was not paid his bonus at the same time as virtually all other bonus-eligible employees, as the company did not want to allow bonuses for people involved in an internal investigation while such investigation was ongoing.  Subsequently, the CFO said the client would not be paid his bonus because he had to be employed with the company “when the bonus is paid out in order to receive it.”

As I pointed out, if the investigation took five years to complete, the client would have had to remain employed with the company for 5 years in order to be paid the bonus he earned for 2020. I asserted that the company’s position “defies basic common sense, fairness and most important for our purposes, California law.”

The company referred the case to outside counsel who requested more time to evaluate the case, which I naturally granted.  About a month after I first contacted the company I heard from outside counsel, who told me the company was not going to pay the bonus because not only had the client left the company, but also that he had failed to disclose what he knew about the internal issue being investigated, an issue for which he was responsible.

As it turns out and, as the company knew at the time, the client was the person who brought the issue forward in the first place and disclosed the issue that lead to the investigation and eventually, to a large settlement with a government entity. In other words, what had started out as a simple failure to pay a bonus had become a whistleblower case.

After going back and forth with outside counsel, I finally made a settlement demand of $75,000 with indications that the client would settle for the amount of the bonus plus a “kicker” to cover my fee.  The company did not offer a penny.  Then, I suggested mediation.  The company declined.  So I filed a demand for arbitration asserting claims based on the failure to pay the bonus, but also CCP 1102.5 and a defamation claim.

Settlement

I won’t bore anyone whose has taken the time to read this far with all the gory details of the arbitration process.  Shortly before Christmas (about a month ago), a year after the client’s bonus should have been paid, the company settled for about $200,000.  Thus, it’s likely the company spent close to half a million dollars on a claim it could have settled for less than $50,000.

Moral of the story.  Make a realistic evaluation of your case.  Don’t throw good money after bad.  A mediator might have helped the company lawyers take a more objective view of the case early on.  One of the problems in the case is that the lawyer who was responsible for determining whether the case settled early was involved in some of the initial advice. It is always harder to settle a case directly with one of the decision makers because that person has to eventually concede, at least to him/herself, that the initial advice might have been problematic from the start.

Resolve your case through mediation instead.

Call me at 626.469.5070

I Will Never Use That Mediator Again

I'll Never Use That Mediator Again

I Will Never Use That Mediator Again

6 Mistakes All Mediators Should Avoid

Prejudging or Evaluating too Early

Especially in an area where a mediator is a bona fide expert in the issues involved in the case, it is easy and tempting for the mediator to reach a conclusion and attempt to drive the parties to that predetermined conclusion.  Even if the case ends up there, the worst mistake is for the mediator to drive the train rather than act as the conductor.

 

Personalizing

The mediator’s job is to assist the parties in reaching a settlement.  It’s not to be well-liked.  Nor is it to demonstrate that the mediator is the smartest person in the room.  Avoid petty personal conflicts with counsel.

 

Coming Unprepared to the Mediation

Mediators complain about lawyers who are unprepared.  One of the biggest sins a mediator can make is not preparing for the mediation.  I conduct premediation calls with each side separately so I can prepare for both legal issues and personal issues that are likely to arise.

 

Giving up too Early

Achieving a negotiated resolution in a litigated case is hard work.  Persistence is required.  A mediator who is perceived as punching a time clock or watching the clock to bill for every second of time is unlikely to be rehired.  Often, after a lengthy session, the parties are primed to settle.  They just need a cooling off period.  Perhaps they cannot concede in person after heated, protracted negotiations.  The mediator who does not make the timely follow up phone call is unlikely to get repeat business.

 

Embarrassing the Lawyer in front of the Client

Oops.  I did this once by mistake.  Counsel had been sanctioned by the court in a discovery dispute.  During the mediation, she repeatedly cast aspersions on opposing counsel.  I eventually reminded her that opposing counsel was not the one sanctioned by the court.  Apparently, counsel had not told her client about the sanctions.  Didn’t settle that case.  Didn’t get hired again.  Mediators need to be aware of when to discuss issues with attorneys outside the presence of the client.  I am now keenly aware of what I should and should not say to attorneys in the presence of a client.

 

Appearing to be anything other than Neutral

A settlement does not necessarily equal a successful mediation.  I am aware of cases which have settled when the parties kicked the mediator out of the room.  Most parties and counsel care about the process.  Were they treated with respect?  Did the mediator empathize with their position?  Did the mediator allow each party to say everything the party wanted to say?  Did the mediator understand the legal issues?  Did the mediator give best efforts in trying to persuade the other party?  Mediators who provide a good process will be hired again.  Those who do not won’t.

What would you add to the list?

626.469.5070

Could This Have Been Avoided?

Case Study - Apartment Complex

Could This Have Been Avoided?

In my quarterly newsletter I referred to a headline which recently caught my eye:

A Los Angeles jury has ordered an apartment building owner and property management company to pay $7.6 million to two former live-in apartment managers who claimed to have been wrongfully terminated and discriminated against based upon a medical condition and disability (thyroid cancer).

September 2021

That same month, I mediated a case where the putative plaintiff was a woman who had been a resident manager of a large apartment complex for over 22 years. This was the first mediation in quite some time where I detected that providing an opportunity for her to air her “real” concerns (as opposed to those translated by counsel into potential legal claims) directly to her boss would be productive. It was. As we only had half-day, the matter has not yet settled. I devised a potential solution and asked the parties, both of whom were initially reluctant, to seeing if they could negotiate something along the lines I suggested. They agreed. The case ultimately settled based on my proposal.

Oh yeah. The real issues? Dignity and respect, not discrimination.

The Facts According to the Plaintiff

Jane began working for Defendant on or around January 3, 2000, as a Resident Manager. She has worked more than forty hours per week and earns $36,000.00 per year. Jane is sixty-eight years old.

In 2020, Jane began noticing that she was being treated disparately on the basis of her race. Specifically, Jane was given a harder time changing her schedule than Caucasian employees and was made to report to her general manager daily.

In January 2021, Jane was required to take a medical leave to tend to her arthritis, chronic obstructive pulmonary disease (COPD), and congenital heart failure. While she was out, Defendant attempted to replace Jane with a younger, healthier employee. Upon Jane’s return, Defendant retaliated against her by putting her on a six-day probationary period.
Defendant misclassified Jane as an exempt employee. Defendant also failed to provide Jane with the appropriate meal periods and rest breaks. Defendant further failed to provide Jane overtime wages and accurate and itemized wage statements.

When Jane returned to work, Defendants were visibly upset as her return made it more difficult to give her position to the younger employee. Jane was called into a meeting with representatives of Defendant. During the long meeting Jane was told how inconvenient it had been for her to take her medical leave, as it had increased others’ workload. Defendant largely disregarded that her health had been in jeopardy. Instead, immediately upon her return, her boss told Jane that she was being put on a thirty-day probationary period.

Jane had no choice but to abide by the thirty-day probationary period. She met with her boss the end of it. He gave her an arbitrary list of twenty-nine things to grade herself on, which Jane completed honestly. Rather than accepting her self-grade or giving her clear feedback, the boss decided to further discriminate against Jane and extend her probationary period for an additional thirty days.

At the completion of the sixty-day probationary period, Jane’s health deteriorated again. She was forced to take another medical leave in June 2021 for approximately three weeks. Upon her return from her second medical leave, Defendant further retaliated against her by increasing her workload, targeting her, and pressuring her to complete an unreasonable number of tasks. When the employee who was meant to help Jane with her task list quit, Defendant failed to hire someone else, leading to greater stress for Jane.

Jane often was required to work more than forty hours per week to complete her work. When she discussed overtime pay with her boss, he stated that he did not believe in paying overtime wages. Employees were required to get permission to work overtime hours. As a Resident Manager, Jane often had to work overtime for emergencies and was unable to wait to get permission from her boss. The boss maintained that he would not pay her for overtime hours worked, and Jane felt she was unable to add the overtime hours she worked to her time sheets.

 

Jane’s Legal Claims

Jane asserted claims for Discrimination, Retaliation and Harassment under the FEHA. CFRA/FMLA Violations and Retaliation and Wage/Hour Claims.

 

The Mediation

I spent most of the mediation asking questions of the parties in separate rooms to understand what was really underlying this dispute. The building owner was adamant that Jane was not able to do the work required and had numerous examples. Not surprisingly, there had been very little documentation of any problems over Jane’s 20-year career. The truth is, the owner actually liked Jane, thought she was good with the tenants, and had tolerated her less than stellar performance for 20 years. Even Jane admitted that she was not able to keep up with all the work. She attributed this failure to her health issues.

After several hours, it appeared to me that both parties could benefit if Jane was permitted to “speak her mind” to her boss outside the presence of the lawyers. I persuaded counsel that this would help the process. I then moderated the discussion between the principals to make sure it stayed on track and that the parties spoke respectfully, If candidly, to each other.

That dialogue seems to open the door to a solution I proposed that allowed both parties’ interests to be served and avoided a lawsuit. After a week or so of consideration, the parties signed an agreement based on my proposal.

Moral of the story. Use mediation to uncover underlying interests, not positions and craft a solution that addresses as many of the interests as possible.

Give me a call about your case

626.469.5070