About DIAMOND DISPUTE RESOLUTION
WHO I AM, AND WHY I’M A MEDIATOR
I grew up in Los Angeles, but discovered the Bay Area in 1967 when I entered Cal (Berkeley) as a freshman. I graduated with Honors in 1971, and then attended Boalt Hall School of Law, where I was Associate Editor of the California Law Review. I graduated from law school in 1974, by which time I’d become a Bay Area transplant, and I’ve been here ever since. I became a civil litigator because of the opportunity to help people with legal problems, the “chess game” challenges presented by the adversary system, the opportunity to learn about the diverse issues involved in the wide range of cases I handled, and the drama of the courtroom.
Over the years, I also found that the best result for a client was not always achieved through full-blown litigation and trial. Instead, a well-timed analysis of the risks and costs of going forward, and a frank and professional dialog with the opposition, usually resulted in settlement. I learned early on that settlement skills were as important for a litigator as were courtroom skills – and perhaps even more important, since the vast majority of civil cases are in fact settled before trial.
Having participated as a lawyer in hundreds of settlement conferences and mediations over the years, I decided to take the plunge and re-focus my practice from litigation to mediation in 2004. I have found that, as a mediator, I get an immeasurable amount of personal and professional satisfaction from assisting parties in resolving their disputes.
MY APPROACH TO MEDIATION
- THE RESOLUTION TEAM
As a mediator, I consider myself to be the captain of the resolution team. The team consists of the parties, the lawyers, and the mediator. Each of us has a unique role to play in the process. While the parties have the common goal of voluntary resolution, they necessarily also bring their unique, and by definition diverging, needs and interests. The lawyers bring to the process their separate but equally important roles as advocates for, and advisors to, their clients. I in turn provide the leadership that is necessary to:
- ensure that the parties have sufficient information on which to base settlement decisions;
- assist the parties in analyzing their positions, making negotiation decisions, and communicating those decisions to the other side; and
- keep the process moving forward from initial retention to final resolution.
- ANATOMY OF A DDR MEDIATION
Every mediation I handle has its own unique needs and considerations. By way of example, multi-party, multi-insurance carrier construction defect disputes have issues that are not present in intra-family trust disputes, and vice versa. Each mediation is therefore tailored to meet the needs of each case. Having said that, the life of a typical DDR mediation looks like the following:
- PRE-MEDIATION COMMUNICATIONS
Some of the most important work in mediation occurs well before the parties ever actually get together in person. For me, the mediation process begins with the first communication from the parties, and ends only when the process has been completed. Once advised that all parties have agreed to retain me to mediate their dispute, I obtain from all parties a signed AGREEMENT TO MEDIATE, in order to start the process. I always speak with all lawyers (and parties who are self-represented) well in advance of mediation, sometimes separately and sometimes in one or more conference calls, to make sure that the potential for resolution at mediation is maximized. The subject of these pre-mediation conferences vary by case, but may include the following representative topics:
- Insurance-related issues. Is there insurance involved? Are there reservation of rights issues that might impact settlement? Are all appropriate insurance carriers participating in the resolution process? If not, what needs to be done to address these issues, and how long will it take to do so?
- Information gathering. Have the parties obtained all information (whether by way of documents, interviews, or formal depositions or other discovery) they need in order for them to have a sufficient “database” on which to make settlement decisions? If not, what more needs to be done, and how long will it take to do it? Can I assist the parties in obtaining information or documents from each other, or from entities or individuals who are not parties to the dispute?
- Necessary parties to the dispute. Are there other parties who may be involved in the dispute but who are also not currently involved in the mediation process? If so, can the matter be resolved without them?
- Necessary decision-makers at mediation. Who will attend the mediation on behalf of the parties with full decision-making authority? Do the parties have any concerns about who is – or is not – attending from the other side? How can those issues be resolved?
- Impediments to resolution. Are there any impediments to resolution (such as lack of insurance or assets, or personality conflicts between the parties or their lawyers) that need to be addressed?
- Prior settlement efforts. Have there been any prior offers or demands? If so, do the parties intend to start from those settlement positions at mediation? Why were past settlement efforts unsuccessful?
- MEDIATION BRIEFS I believe that Mediation Briefs are an important tool in the information-exchange process, and I always ask the parties to provide me with, and exchange with each other, Mediation Briefs. I ask that the briefs provide an overview of the disputed facts and legal issues, and any other relevant information which the parties feel would be helpful for me or the other side to know. I ask that the briefs be exchanged one week in advance of mediation, giving not only the lawyers, but (as importantly) the parties themselves an opportunity to review them, and to be prepared to respond at mediation. If either side wants to provide me with confidential information in advance of mediation, I ask that it be provided to me either in a separate pre-mediation phone call, or in a separate confidential writing.
- THE MEDIATION
- Initial private caucus. Although each case is different, in most cases I ask the parties to meet with me initially separately, with staggered start times. This gives me and the parties an opportunity to get to know each other, and for the parties to get a “comfort level” for the process going forward. (We are better listeners and thinkers if our “forebrains” are not impeded by anxiety or fear.) This also gives me an opportunity to discuss in private any unique issues that should – or should not – be disclosed to the other side. This separate initial meeting is also an opportunity to confirm the parties’ willingness, and ability, to participate in a joint session. In the initial private caucus I also obtain signatures on a standard CONFIDENTIALITY AGREEMENT, confirming that all statements made during the course of mediation, and all documents prepared for mediation, are confidential.
- Joint session. Although there are some rare situations in which bringing the parties together can be like pouring kerosene on an open flame, I believe there is almost always something to be gained by bringing the parties together in the same room. At a minimum, this provides an opportunity for the parties, with my assistance, to explore and acknowledge the issues they have in common (such as bringing certainty and closure to the uncertain and expensive litigation process, in a manner that is controlled by the parties themselves rather than by a judge or jury of strangers). If the parties are willing, this also provides an opportunity for each side to hear the “other side of the story” directly from the other side, and to engage in a meaningful, facilitated discussion of the facts and issues. Since successful mediation by definition means that the case will never reach a courtroom, the joint session can also provide a party who needs to have his “day in court” the opportunity of telling his side of the story, so that he can then move on to closure. Joint sessions vary in length, but there is usually a point when it becomes apparent to all that we have made as much progress as possible together.
- Follow-up private caucuses. The joint session is typically followed by separate, private caucuses with each side. During these caucuses, the issues are further explored and analyzed, and I assist the parties in evaluating their respective positions. I also assist the parties in developing their negotiating positions. I go back and forth from one side to the other, communicating issues, offers, and counter-offers, until resolution is reached. Sometimes it is also helpful to bring the parties, or the attorneys, back together again during this phase of the process to, among other things, clarify positions or issues.
- Execution of Settlement Agreement. Once the parties reach agreement, I bring the attorneys back together to either fill in the blanks in the SETTLEMENT AGREEMENT form I provide, or to put their own written settlement agreement together. This process may give rise to additional issues that had not been considered before reaching agreement on key terms, and these issues are dealt with in the same manner as with the earlier process, until agreement is reached. When all key terms are agreed upon, a SETTLEMENT AGREEMENT is printed and signed by all parties. In the unlikely event that one side or another has a “change of heart” after the mediation has concluded, the signed, written agreement is enforceable by motion (if the matter is already in litigation), or by way of a breach of contract action if a lawsuit has not yet been filed.
- POST-MEDIATION FOLLOW-UP Although most cases are resolved while the parties are together in the mediation session (and I make every effort to help make that happen), on some occasions it is necessary to adjourn the session and to follow up either by phone or by a further in-person session, or both. (This may happen, for example, if the parties need to get additional information that could not have been obtained before the original session, or if we have reached a point where it would be helpful for the parties to “take a break” in order to assess their positions, or if we simply run out of time and one side or the other has to leave.) In the post-mediation follow-up process I will continue to take the lead on keeping the process moving forward, by communicating with counsel, setting timeframes for response, and conveying settlement positions from one side to the other, until resolution has been reached. Because it is human nature for the attorneys and parties to get caught up in the press of other matters following the initial session, having someone “herding the cats” to keep the momentum moving forward is critical, and I fill that role. I try not to mediate more than three days a week, and I avoid mediating on consecutive days, in order to have sufficient time available for pre-mediation and post-mediation work. I do not consider the matter over until we have either reached resolution, or until a party unequivocally communicates that the process has ended.
- PRE-MEDIATION COMMUNICATIONS
- MY MEDIATION “STYLE” I’m sometimes asked about my mediation “style,” and whether, for example, I would describe myself as “facilitative” or “evaluative,” with these terms roughly defined as follows: “Facilitative” mediators typically focus primarily on assisting the parties, usually in joint session, in understanding the needs and interests of both sides, and exploring options for resolution, without the mediator’s input as to potential litigation outcomes and the risks associated with decisions to not settle. “Evaluative” mediators typically focus on litigation risks and costs, and potential trial outcomes, usually in separate caucuses with the parties, and assist the parties in “risk-benefit” analyses based on the strengths and weaknesses of their case.I believe that a mediator must be flexible in his approach, and be sensitive to the needs of each dispute, and to the time within each mediation when it may be helpful to move from one approach to another, and perhaps back again. For example, an inter-family dispute over property or trust proceeds may be better served by, at least initially, focusing more on the respective needs and interests of the parties (a “facilitative” approach) and the (hopefully) common goal of preserving the family relationship, than on the respective strengths and weaknesses of the parties’ legal positions (an “evaluative” approach), which might serve to harden the parties’ already emotionally-charged positions. On the other hand, a real estate non-disclosure or construction defect dispute is usually best served by focusing, at least initially, on the “risk analysis” associated with an “evaluative” approach.I’m also sometimes asked whether I use the “mediator’s proposal” approach to resolve an impasse in negotiations. With a “mediator’s proposal,” the mediator separately proposes to both sides a compromise outcome, usually although not always in the form of a monetary amount. Each side then separately tells the mediator, either right away or within an agreed-upon time frame, whether the proposal is accepted. If both sides tell the mediator that they accept the proposal, the mediator then tells both sides that an agreement has been reached. If both sides reject the proposal, or if one side accepts it but the other side rejects it, there is no agreement. If one side accepts the proposal but the other side does not, the mediator does not disclose to the side that rejected the proposal that the other side has accepted it, so as to not jeopardize the accepting side’s negotiating position in the event of further settlement discussions. I will typically use a “mediator’s proposal” only as a “last resort” to break an otherwise unbreakable impasse in the parties’ positions, after the “gap” between the parties’ positions has been narrowed to the fullest extent possible, and only after both sides have authorized me to do so.I believe the key is for the mediator to use all the tools at his disposal, at the appropriate time, in order to maximize the potential for resolution.