Sunday, April 28, 2013

The Importance of Pre-Hearing Telephone Conferences

It's not a new concept, but it always bears repeating.  Prior to every mediation, I try to reach the parties to find out what they have discussed by way of settlement before the mediation.  This week, I was unable to reach the Plaintiff's counsel, but the defense told me that he had been trying to reach his opposing counsel by telephone since the lawsuit was initiated.  He had left over 30 messages--and never received a return phone call in the 6 months that the case was pending! 

The case involved a wage and hour claim brought by a disgruntled employee who was terminated last year after an alleged assault and battery of a co-worker at a car maintenance yard.  Because he had been unable to reach the Plaintiff's attorney, Defense counsel earnestly expected that the opposing party would not show up for the mediation and the case would proceed to a trial or default.  But alas, the attorney did show up with his client, and began by informing me that his client had been offered a significant settlement by his former employer before he filed the lawsuit.  The only fact that had changed since then, was that attorneys fees had mounted, so his demand was now twice as much as it had been at the time this purported offer had been made.  The trouble with that logic was that Defendant had been eager to settle at the exact amount of the alleged wage loss before all of the attorneys time had been incurred.  And they weren't budging from that place--rewarding Plaintiff's attorneys for billing a lot of unnecessary time. 

Ultimately, it did settle at the value of the wage loss and Plaintiff and his attorney lost an opportunity to get full value on the case by their stubborn refusal to answer the telephone calls of the defendant.  Telephones are never further than your pocket these days.  The failure to use them is, in my view, is inexcusable!

Sunday, April 21, 2013

Priming for Likely Range of Outcomes

It's been a tough week, nationwide.  First there was the Boston Marthon Bombing and then the fertilizer plant explosion in West, Texas.  In between, there were shootouts, captures and loads of probing questions.  I found that it put everyone on edge all week as the news streamed throughout our office.  For those reasons, I paid particular attention to attempting to focus the disputants in two of my mediations this week upon the negotiation at hand. 

On Monday, I mediated a challenging race discrimination case.  The challenge, in part, stemmed from the fact that the Plaintiff was still working for the governmental entity, who, he claimed, had discriminated against him, subtly, but hurtfully, for over a decade.   Before commencing that mediation, I had to caution the defense lawyer that he may need to get more monetary authority than he had previously attained if he wanted to get the case settled.  It was simple "priming" so that when the case got settled for something higher than his original authority (but less than the worst case scenario I painted for him), the defense lawyer and his client were well prepared to accept "the deal".  In another case, I had an out-of-state Plaintiff suing her former divorce lawyer and because she was so long embittered and angry, she had communicated to me that she was prepared to go to trial unless she was certain she could get every last cent on the lawyer's malpractice policy.  When she inevitably fell short in the negotiation, I had to prime her for the likelihood that if she chose to reject the offer at hand, she may have been met with an even smaller "pie" after the Defense lawyers spent considerable time and effort preparing for trial while she considered their "almost policy limits" offer. 

Sometimes the only way to strike oil is to prime the pump until it begins to flow.  It takes some effort and foresight, but the result is all the more satisfying.

Sunday, April 14, 2013

Every Disputant Deserves Respect and Empathy

I learned something travelling to Japan last month that I drew upon this week.  Their culture dictates that they bow in greeting one another.  Yes, families bow to one another, employees to one another, employees to customers, business to business, men to women, young to old.  Without even the first meeting, the Japanese greet strangers with a polite and deferential bow.  This evokes a bow in exchange, and sometimes it ricochets into escalating bows until the doors are closed or the elevator has left the floor!

This week I presided as an Arbitrator in a highly contentious hearing.  After handling the matter for almost 1 1/2 years, I had never met the principals, only their attorneys.  My job was to take the process back so that leaving the hearing on Friday afternoon, the parties (and their counsel) felt respected and felt that they had gotten what they had bargained for:  an empathic neutral who listened carefully to all of the evidence, weighed and measured it fairly and delivered a respectful result based upon all of the proof and legal arguments presented.  The Court reporter marveled at how "cool" and polite I remained throughout the hearing when tempers and frustrations flared.  The practice of deliberate deferential-ism through bowing upon greeting, seems to be a cultural acceptance that every person deserves respect.  By summoning my own humility and humanity, these parties, who were embroiled in a long, expensive and sometimes painful legal dispute can finally feel fully heard and gratified that the process of Arbitration in this instance fairly served them.  Though I didn't bow, I held on to the lessons from my visit to Japan in giving every deference to the parties to put on a legal case efficiently, completely and fairly. 

The parties before us in mediation or arbitration deserve no less.

Monday, April 1, 2013

Check Personal Biases at the Door

My family and I just returned from a week's vacation in Japan where I was struck by the crowds of people, the beauty of the fully bloomed "sakura" (Cherry Blossom trees), and being a member of a very observable minority ethnicity (Caucasian).  As a mediator, I occasionally catch myself identifying with a particular participant (a woman lawyer, a mom, a person of my relative age or appearance, for example).  At those times, it's critical to keep my personal biases (whether positive or negative) firmly in "neutral" mode.  Sometimes, it takes some effort to do that.  My strategies include taking a little walk around the office, centering myself with a cup of tea or finding a quiet place to do some deep breathing and a few stretches.  I find that I am unable to "call myself out" without physically walking out and considering how my own personal biases may be affecting my mediation hearing and process.

     What I learned from this trip to such a faraway, foreign land is that people are, in many ways, more alike than different.  Because of the season, for example, there were many weddings and celebrations of young women--who enjoyed getting dressed up and celebrating with family members in Tokyo.  In Kyoto, there were many young people on Spring break, enjoying the fun of the night life, a good beer and an evening of Karaoke.  There were grandparents walking in the park with their grandchildren alongside the river.  There were women in business suits and men entertaining visitors in the restaurants and hotels.  In short, if you take a step back, you can usually find commonalities with nearly everyone--even if you expect otherwise based upon your preconceived biases. 

     Next time I catch myself leaning towards a particular viewpoint, I will remember the lessons from the Sakura season in Tokyo as I sip my tea and call myself on my own biases.