Those attending the 28th Annual Conference of SCMA had the privilege of hearing the keynote address of Senator George Mitchell, former Majority Leader of the United States Senate. In his remarks, Senator Mitchell noted how divisive the two presidential campaigns had been, and emphasized the need to change the political climate.
“Thank God for Donald Trump” was a sentiment that derived from a most unlikely source.
I was teaching a conflict resolution workshop to a group of Rotaracts (high school aged pre-Rotarians) at the Rotary International Peace Conference, and — since Rotarians are world renowned do-gooders who put “service before self” — I felt like I had a hall pass to take these young peace advocates deeper than your average high school class. We were moving through a section on emotional intelligence, empathic listening, and exploring what you can learn about someone’s needs if you aren’t preoccupied with being hurt by their language. After an impassioned discussion about cyber bullying and disparaging remarks made about Islam, a young Muslim girl in the front row looked up at me and asked in an inquisitive, challenging tone, “So what you are saying is…thank God for Donald Trump?”
I stood awkwardly in front of the room filled with high schoolers –a firing squad of eyeballs waiting to see if I actually believed what I preached. I took a deep breath, swallowed hard and said, “Yes.” The class giggled acceptingly in response and leaned in closer.
It is, after all, a logical fallacy to think that if Donald Trump were to disappear, so too would racism, bigotry, misogyny and distrust of a centralized government. That all of a sudden, “Poof!”, people would cease to feel marginalized, disenfranchised and dehumanized. After all, the man isn’t saying anything not already growled over dinner tables or joked about in bars. He is simply saying it openly and bombastically over the airwaves, and it echoes unavoidably through every form of media — social or otherwise.
Trump’s fiery rhetoric and his movement expose a deep wound in our country that has existed nearly since its inception. The Civil War was the first manifestation of this divide. Fittingly, that war didn’t end with an actual peace treaty at the Appomattox — merely a forced promise to surrender. For many, the resistance never ended. And, despite the best of intentions, Reconstruction was not reconciliation. The process did little to unite our country in more than words and titles. This chasm is further evidenced in Hollywood film productions; what is the easiest way to make a person sound stupid and low class? Give him a Southern accent.
It is impossible to know if Donald Trump actually believes what is coming out of his own mouth. What he has mastered, however, is the ability to give a voice to his following and to those who have never before felt heard. It has never been okay to speak these concerns out loud; rather, political correctness has banished these sentiments to silence in the public arena. Donald Trump says to hell with those shackles and speaks whatever comes to mind or is channeled from his audience. AND IT FEELS GOOD TO BE HEARD. If you need proof, you need only look at footage of his rallies. Thousands upon thousands of frenzied supporters are ready to go to war for a man because he gives voice to their anger and frustration.
But is anyone outside of the melee truly listening? The befuddled Republican establishment scrabbles to redirect that anger toward Obama, Hillary and the Liberals. The shocked Democrats do their best to marginalize and dismiss the movement with all-encompassing words like “hate speech”, “bigotry”, “racism”, and placing them in a “basket of deplorables.” The shunned and lambasted media fight back by fact-checking and making futile attempts to chip away at his integrity and business dealings — as if his personal character make his words less true to his followers. Again I ask, is anyone truly listening?
One thing I know as a mediator is that no one who feels listened to needs to raise their voice. And no one bothers to raise their voice if they are not passionate about their words. It is clear from the television set that Trump’s followers exemplify BOTH these truths. What we also know about the human brain is that when we feel threatened, our cognitive thought process shuts down and impairs our ability to fully listen. Donald Trump’s words are undeniably offensive to many people. In his proven calculation, unscripted, raw, offensive language is guaranteed to be heard and repeated. The greater the perceived impact, the greater the cheers at the rallies and retweets on his Twitter account. Ironically, the opposite is occurring with respect to others’ ability to truly hear him or his followers. This latter fact may not be Trump’s concern, but it definitely should be ours.
One thing we would hear in the anger (if we could listen) would be fear. REAL FEAR. Fear that we are living in a changing world where our neighbors, employers and leaders no longer look or speak like we do. There is, after all, a black president of the United States and a woman running to succeed him; both would have been inconceivable a generation ago. There are people permanently losing their jobs to foreigners who speak, eat, and act differently than we do, and technology is replacing us through automation. These fears are not unfounded or immaterial — they are real, they are concrete, and they are happening now.
If we had the ability to acknowledge this fear, what we might be able to see beneath that fear is care — care for our families, our way of life, our values, our religious beliefs, our identity. It is true, we will not be able to raise our children in the same world, in the same way or in the same environment in which our parents raised us. That fact is terrifying to some people. Moreover, if all I know is how to build cars, how will I feed my family and maintain my sense of purpose when I can be replaced by someone able to work for less or a robot that is twice as efficient? Where can I find hope if I can’t even provide for my family?
How would you respond if instead of hate, anger or even fear, you heard care in their words?
Yes, it can be said that Trump’s words are bigoted, hateful and racist. But why those labels are not helpful — and even naively dangerous — is because they let us off the hook from asking the more important question: what lies behind them? If we label someone a bigot, it gives us a pass from having to ask the deeper, more dangerous questions of how they got there and what is fueling their passion. More importantly and more conveniently, it enables us to excuse ourselves from trying to relate to them. Ironically, we become guilty of the same accusation of exclusion when we make Trump supporters “The Others.” To look at someone who is angry and slinging hurtful, shallow language, and then to take a look at ourselves and recognize our own fears is a risky and challenging proposal. But it is perhaps the only productive solution to start healing the divide that this election season has brought to light in our country and around the word.
We cannot solve a problem if we are unwilling or unable to talk about in a public forum. Pretending that there isn’t a problem isn’t a solution. So yes, thank God for Donald Trump. Thank him for having the unique ability, bravado and fortitude to be the mouth piece for millions of Americans who are living in fear of losing their identity and way of life. I am not advocating that you must like him or his politics, but can we set aside our hurt and outrage long enough to listen with compassion, empathy and an open heart?
I admit empathy does not feel like a trustworthy weapon against hateful slurs, ignorant sounding rants and death threats. Indeed, the path to healing our nation will not be linear, nor will it come quickly. Peace, however, starts in our own hearts and overflows incrementally into our local community before it can happen nationally. If enough of us have the courage to ask authentic questions in the face of anger along with the compassion to truly hear the answer, we might just have a chance.
Friends and Colleagues:
This is my final message as president of SCMA and I would be remiss if I didn’t begin by thanking all of you for your support, encouragement and friendship this past year.
Serving as president of SCMA presents a unique set of challenges because the membership is spread across such a large geographical swath and comes from such diverse backgrounds. When my term as president began, I had one overarching objective — to bring SCMA closer together as a community.
With the help of a truly committed Board of Directors, I think we were largely successful in achieving that goal through a variety of initiatives: we began scheduling some programs on Saturday mornings and/or at locations that were more centrally located and readily accessible; we encouraged and modeled greater use of the listserv; and, most importantly, we expanded the number and reach of SCMA’s Professional Development Groups (PDG).
Credit for the latter belongs to the efforts and enthusiasm of Mark Lewis, chair of the PDG Committee, who, in addition to leading the Westside group, assembled an outstanding cadre of PDG leaders: Jim Cameron in Encino, Susie North and John Irwin in Pasadena, Angela Reddock-Wright in the South Bay, Sayre Macneil and Cindy Brokaw in Santa Barbara, and Richard Lutringer in Palm Springs. And now, thanks to SCMA Board members Dale Ordas and Ana Sambold — both of whom hail from the San Diego area — SCMA is poised to further expand its PDG presence to the south in the coming months!
If that was all we had accomplished this past year, I would have considered the term a success. By every other metric, however, this Board has found ways to exceed all of our expectations.
Financially, we project that SCMA will end the year with more cash on hand than ever before, thanks to the efforts of those who helped secure sponsors for this year’s Annual Conference. Compared to previous years, we more than tripled the amount raised in sponsorships this year, far surpassing even our most optimistic predictions.
Speaking of finances, SCMA owes a debt of gratitude to Stephanie Maloney, who is stepping down from the Board after having served as the organization’s treasurer for the past six years. Stephanie, thank you for your years of service to SCMA. You will be missed!
SCMA’s Membership Committee was also enormously successful this past year, thanks to cochairs Wendy Forrester and Jack Goetz. As a result of their vision, creativity and determination, SCMA has added nearly 100 new members since the start of the year!
Kudos, as well, to Victoria Gray and Lee Blackman, who, as co-chairs of SCMA’s Communications Committee this past year, made significant improvements to SCMA’s website, recommended ways to increase SCMA’s social media presence, and kept the membership informed about issues — such as mediation confidentiality — critical to the profession.
Wendy and Victoria are also stepping down from the Board after many years of service to SCMA and, like Stephanie, will also be hugely missed.
SCMA’s Mentorship Program continues to garner glowing reviews from members who have completed the program, thanks to the invaluable contributions of chairperson David Levaton and all those who have graciously offered shadowing opportunities to the mentees.
SCMA’s Outreach Committee deserves accolades for a number of laudable accomplishments this past year. The Public Outreach subcommittee, led by Leslie Kushner with incredible support from Susie North, Gayle Glazer, Marvin Whistler, Maria Simpson, Marie Stein, Richard Hamlin and Alik Segal, produced one PSA video that has already been widely shared on social media, and has another one currently in production. It also designed and disseminated an informational brochure explaining the benefits of mediation. Finally, it has just embarked on an exciting project to create an SCMA Speaker’s Bureau. In addition, the Attorney Outreach subcommittee, chaired by Bill Molfetta, presented a well-attended program to the Desert Bar Association in September.
SCMA’s Programming Committee, chaired by Incoming President Jason Harper, offered an array of outstanding programs this past year including, for the first time, repeat performances of three highly-touted workshops from last year’s Conference: “Lying for the Sake of the Deal,” “Equal Rights for the LGBT Community,” and “Critical Race Theory.” In March, SCMA drew a huge turnout for a Town Hall on two hot-button topics: mediator certification and mediation confidentiality. In April, SCMA hosted its Second Annual Past President’s Breakfast at the Del Rey Yacht Club. In May, SCMA held its annual Employment Mediation Institute at Pepperdine’s West Los Angeles campus. In August, SCMA filled the Faculty Lounge at USC Law School for our Summer Soiree, where we honored Forest Whitaker with the 2015 Cloke-Millen Peacemaker of the Year Award. And just three weeks ago, SCMA hosted its 4th Annual Celebration of Peer Mediation, with more than 100 in attendance!
Speaking of peer mediation, earlier this year the SCMA Education Foundation — which is the charitable and educational arm of SCMA — received a $10,000 grant from the Judicate West Foundation to support the development of peer mediation programs. Congratulations to SCMAEF President Maria Simpson and the entire SCMA-EF Board for all of your successes this year!
My term as president culminates with SCMA’s 28th Annual Fall Conference. Conference chairs Jason Harper and Terri Lubaroff, with the help of committee members Terri Breer, Wendy Forrester and Maurice Attie, have devoted countless hours, putting together what promises to be one of SCMA’s most memorable conferences ever. Beginning with presentation of the 2016 Cloke-Millen Peacemaker of the Year Award to Senator George J. Mitchell and ending with a powerful closing plenary session featuring Franky Carrillo and Dr. Betty Gilmore, with a variety of thought-provoking workshops in between, this year’s Conference will leave you more inspired than ever with an even greater commitment to mediation and peacemaking.
None of what we achieved this past year would have been possible without the dedication of SCMA’s Executive Director Anne Sawyer, who each and every day is called upon to wear a variety of hats. Thank you, Anne, for confronting each day’s new challenge with patience, grace and a ready smile.
Last, but not least, my sincere thanks to the triumvirate of immediate Past Presidents — Robyn Weinstein, Joe Markowitz and Wendy Kramer — who refused to take “no” for an answer back in the summer of 2014. Without your persistence — and gentle persuasion — I would have walked away from a once-in-a-lifetime opportunity: the chance to serve SCMA as its president these past twelve months. I am truly grateful for your friendship and your sage advice.
And now the time has come to pass the baton to Jason. Having worked side-by-side with him this past year, I know that SCMA could not be in better hands. With Jason at the helm, Jack by his side, and the support of the outstanding Board of Directors elected to serve with them, I can’t wait to see what lies ahead for SCMA. With deep appreciation . . .
Floyd J. Siegal, President
Southern California Mediation Association
Advanced Mediation Training
November 5 and 12 @ 8:30 am – 5:00 pm
- Karen Civitate
- Westside Extension Center – West Los Angeles Community College: 9000 Overland Ave, Culver City, CA 90230
Phone: (310) 287-4200
- Become a stronger mediator through lecture, role plays, and individualized coaching.
- Expand your abilities and practice areas by learning how to handle more complex multiple-issue and multiple-party conflicts and intensely emotional situations.
- Discuss how to deal with representatives like attorneys, union officials, and managers; find out about the dynamics of power plus techniques for managing them.
- Complete the Conflict Dynamics Profile assessment so you are aware of your strengths and weaknesses and can create an action plan to become an even more effective mediator and learn from each mediation session.
- You’ll also cover drafting settlements agreements, EEO and how to maintain an effortless flow throughout the mediation session.
- Pre-requisite: a 24-hour course in basic mediation. *$30 material fee, due at registration, for Conflict Dynamics Profile assessment.
- To be held on 2 Saturdays (11-5-16 and 11-12-16).
We saved the best for last!
SCMA has presented some truly exceptional programs this year, but none more inspiring than the final two programs of 2016.
On Thursday, October 13th, SCMA will host the Fourth Annual Celebration of Peer Mediation, from 6:00 – 8:00 p.m., in the Founder’s Room at USC’s Galen Center, 3400 S. Figueroa Street. This is not just a program “about” peer mediation; it is a program actually presented BY peer mediators — middle school and high-school students trained in the art of mediation. The stories they tell will bring a smile to your face and quite possibly a tear to your eye.
If you want to experience the full promise of mediation, please join us for this special evening. There is no cost to attend, dinner is provided and parking is free! Register Here!
Three weeks later, on Saturday, November 5th, SCMA will host it’s 28th Annual Conference at Pepperdine University School of Law. With an opening plenary session that features the presentation of the 2016 Cloke-Millen Peacemaker of the Year Award to Senator George Mitchell, a closing plenary session that features Franky Carrillo (wrongfully convicted of murder at the age of 16 and imprisoned for 20 years before being exonerated) and Dr. Betty Gilmore (co-author of “The Darkest Hour: Shedding Light on the Impact of Isolation and Death Row in Texas Prisons” and recipient of this year’s L. Randolph Lowry Award), and a smorgasbord of outstanding workshops in between, this year’s Conference promises to be one of SCMA’s most memorable!
Early-bird rates ABSOLUTELY, POSITIVELY end this Saturday, October 7th. If you haven’t registered yet, you only have a few more days to do so and save!! Register Here!
And with the money you save, you may want to consider joining us for the Kick-Off Reception and Dinner on Friday, November 4th, at the Huntley Santa Monica Beach Hotel. The dinner will include installation of next year’s President, President-Elect and newly elected Board members; presentation of the SCMA President’s Awards; presentation of the Lowry Award to Dr. Gilmore; and presentation of the SCMA-EF Annual Director’s Award to John Hass. Space is limited and early-bird rates for the Reception and Dinner end on October 15th. Register Here!
I look forward to seeing you at one, two or all three of these very special events!
Floyd J. Siegal, President
Southern California Mediation Association
There was a packed house at the SCMA Summer Soiree.
This was a special opportunity for networking at a beautiful USC Gould School of Law venue with h d’oeuvre on the outside patio as the sun set. The highlight of the evening was the presentation of the Cloke/Millen Peacemaker of the Year Award presented by Ken Cloke to recipient Forest Whitaker.
In his presentation remarks Mr. Cloke commented that in addition to his exceptional career as an actor, Mr. Whitaker’s commitment as an activist is impressive. Not only did he create the Whitaker Peace and Development Initiative (WPDI)with projects in the US, Mexico, Uganda, and South Sudan, he is a UNESCO Special Envoy for Peace.
He next commented on the similarity of work of WPDI and Mediators Beyond Borders (MBBI). Both organizations are currently in Uganda and South Sudan, where the WPDI launched a sport center and a computer center in a strategy to promote peace-building at the local level and MBBI is brining Trauma Informed Peace Building Skills to the grass roots.
Cloke added “Having worked myself in Africa and other places around the world, these tiny little things we can do make an enormous difference.” “It’s a great honor to be identified with this award, and an even greater honor to have it bestowed upon someone whose work is so profound.”
He closed with this observation about the impact of individual efforts in peace building: “You can count the number of seeds in an orange, but you can’t count the number of oranges in a seed.
Mr. Whitaker shared that he grew up in South Central Los Angeles and saw many of the kids he knew “…drawn into lives of gangs and drugs and violence, and (he) saw how it robbed them of their futures.” He further observed that “to truly transform a conflict, change must come from within…you have to engage that person as an active partner in his or her own development.”
In creating WPDI he “wanted to build a network of youth peacemakers and mediators
who could act as positive transformers of their communities and countries…” Using the metaphor of working on his grandfather’s farm he reflected on how important it was to protect the seeds you plant to ensure their growth and development and by analogy if “we fail to engage our fellow citizens as partners and peacemakers and not nuture the seeds, then around them weeds will grow and take root…weeds of violence,
extremism, racism and intolerance can sprout through cracks in an sidewalk..penetrate the walls of any seed and corrupt its very identity.
He quoted Desmond Tutu who said: “Do your little bits of good where you are. It’s those bits of good put together that overwhelm the world.” Then Mr. Whitaker closed by acknowledging the importance the work done by mediators stating that “…mediation can be fundamentally an act of goodness.
Through mediation, we can help individuals come together to find moments of human understanding.”
In recognition of Conflict Resolution Day 2016, County Supervisor Mark
Ridley-Thomas will be presenting a scroll to the SCMA Education Foundation at
the county supervisors meeting on October 18, 2016. 9:30 am *
Los Angeles County Board of Supervisors
Kenneth Hahn Hall of Administration Rm. 383
500 W. Temple Street
Los Angeles, CA 90012
Conflict Resolution Day is celebrated nationally on the third Thursday of
Conflict Resolution Day was conceived in 2005 by the Association for Conflict
* Promote awareness of mediation, arbitration, conciliation and other
creative, peaceful means of resolving conflict;
* Promote the use of conflict resolution in schools, families, businesses,
communities, governments and the legal system;
* Recognize the significant contributions of (peaceful) conflict resolvers;
* Obtain national synergy by having celebrations happen across the country and
around the world on the same day.
Space is limited. Please RSVP
Join us for a roundtable lead by expert mediators on the topic of parent-school conflict resolution. Learn about existing programs and share your thoughts on the creation of future programs.
Topics of discussion:
- Overview on mediation and its uses
- Exploring the diversity of mediation programs
- The importance of parents developing good relationships with staff at their children’s schools.
- In-depth discussion: “How Parent-School Mediation Programs Work”
- If money were no object, what would an ideal parent-school mediation program look like and why?
Panel of expert mediators:
Michael Evans, Administrative Coordinator of the Los Angeles City Attorney’s Neighborhood Justice Program (NJP),
Jason Harper, President of the Southern California Mediation Association (SCMA) and founder of Harper Conflict Resolution, LLC.
Marc Purchin, President of mediation firm, Purchin Consulting.
Dr. Anissa McNeil, Court-Appointed Special Advocate for foster youth and CEO of Education Works Consulting Firm, Inc.
Since 1976, the County of Los Angeles Department of Consumer and Business Affairs (DCBA) has served consumers, businesses, and communities through education, advocacy, and complaint resolution. We work every day to educate consumers and small business owners about their rights and responsibilities, mediate disputes, investigate consumer fraud complaints, and enforce Los Angeles County’s minimum wage ordinance. For more information, visit dcba.lacounty.gov
Do you have:
A passion for working with youth √
A want to help break the school to prison pipeline √
A want to reform our juvenile justice system √
Consider becoming a volunteer mediator for CYS!
Centinela Youth Services has become the leading agency in restorative justice utilizing an effective system of services and supports to teach youth to peacefully resolve conflicts at home, school and in their community
Through our 44 hour training commitment, you get:
· Basic mediation training plus victim/offender & parent/teen mediations
· Certified as an LA County mediator
· Access to training with mediation experience
· Skills to enhance your own relationships
Check out CYS’s short documentary!!
By: Jeffrey Krivis
“Us and them. And after all we’re only ordinary men.
Me and you. God only knows it’s not what we would choose to do.
With, without. And who’ll deny that’s what the fighting’s all about.” Pink Floyd
Historically our civilization has evolved primarily as successful hunters and gatherers. This evolution has been largely shaped by our environment, which gives us new resources and technology to continue our journey. But make no mistake about it, we are and will always be hunters and gatherers. It is embedded in our DNA. In this role our instincts require us to do what prior generations did which is to take as much of the resources available that we can get at any given time because they might not be available in the future. This explains a lot about what has happened to cases that jump into early mediation without analyzing the readiness or actual value of a case. This piece will address those issues.
The current thinking is that a lawsuit gets filed and the court encourages the parties to jump into mediated negotiations, whether or not discovery has taken place or legal issues have been sorted out through law and motion. This is contrary to our hunter and gatherer instinct and has contributed to some awkwardness on the part of trial lawyers engaged in early settlement discussions. While early negotiation does work in some instances and has been embraced institutionally in the past, it has led to a lethargic approach by some litigators to settlement. By this I mean that some folks simply show up and hope that their adversary comprehends the real value of their case without a proper exchange of data critical to an evaluation. This lethargy is due to what some commentators have described as the failure to consider the “intermediate steps between filing a case and mediating” that are critical to a successful mediated negotiation.
The Conflict Continuum
It is helpful to consider a dispute as a continuum of conflict where on one end is the “dispute” and the other end is “resolution”. In the middle are a number of signposts where the parties have real and substantive moments to reach closure.
On the right end of the continuum is a jury trial, which is the most effective and elegant approach developed by our judicial system. It has succeeded for centuries and is the cornerstone for everything else that flows from the system. The real challenge with the jury trial is that it is only available for less than 3% of all cases. That means the civil justice system had to create other methods to deal with the 97% of cases that are in need of resolution.
On the left end of the continuum is self-help. While it is not encouraged in the face of breaking the law, it is a common form of dispute resolution where parties take matters into their own hands. Early hunters and gatherers used this approach instinctively until it became illegal in most civilized countries. In the U.S. legal system we see it used in zero sum financial matters such as wage and hour class action cases where employers settle directly with their workforce (Chindarah v. Pick Up Stix, (2009)171 Cal App 4th 796) before the other side is aware of their action. It is also used in employment matters where offers of reemployment are offered, and in family matters particularly where children are involved.
In between the two ends of the continuum lie the bulk of processes that are primarily designed to get cases settled. Following “self-help,” the parties absolutely need these two intermediate steps before engaging in Mediation:
1. Self Help – Explained above.
2. Communication – This is the part where lawyers are supposed to talk to the other side to gauge their desire for resolution. It might be a friendly exchange of data, a simple question about how their client feels about early resolution, or a firm “this case is going all the way.” In any event, some type of communication is warranted before taking the bait and going to mediation where bad news is expensive.
3. Negotiation – More often than not I am told by parties to mediation that there is no demand to settle and they have no sense of where the other party is coming from. Instead of pre-qualifying the case in advance, they use their best instincts and knowledge of the other lawyer’s leanings to surmise expectations. When they hear the first demand at the mediation that same hunter and gatherer instinct kicks in and they threaten to leave. We begin flailing to keep parties at the negotiation table. To say it is exhausting is an understatement.
4. Mediation – Trials are vetted way in advance because parties have exchanged substantial information about their case. The jury is now ready to hear the entire story and can make an informed decision on the outcome. Mediation, particularly early mediation, is often not vetted in this manner which is why it sometimes fails. That is not say that early mediation is not useful for settling cases. It’s just that our hunter and gatherer instinct forces us to ask for value that might not be present, or have more optimism in our position than we should if our case was fully vetted. How to properly appraise a case for mediation is similar to how you might vet a case for trial, but you have compressed all the time and expense into smaller arena.
5. Jury Trial (or Arbitration) – Explained above.
Here is a simple checklist when vetting a case for mediation that can be considered as a starting point that I suspect will be supplemented for by your firm.
Intermediate Step Checklist
a. Insurance – No matter the type of case, knowing the identity of the insurer, their policy limits, the deductible, whether there is a reservation of rights and their position on coverage is a basic first step. This applies across the board and could include class actions, business disputes and routine tort cases. Gathering intelligence about the insurer and it’s propensity to resolve cases early, who they use as counsel, whether they will attend a settlement conference in person or handle via phone are all critical considerations.
b. Ability to pay – In the employment litigation arena, particularly wage and hour class actions, having a great case with large penalties is not enough to save the day. Understanding the nature of the employer and their business, and whether they can respond to “reasonable” settlement proposal is just as important.
c. Company on the market to be sold – How often do we read in the Business section of the newspaper that certain companies are merging or being bought by other companies. This information is readily available on the internet, particularly when dealing with public companies. This information creates a dynamic that is sometimes useful for settlement, depending on the timing of the negotiation.
d. Claims administrator needs to move files – Surprisingly, many lines of disputes involve insurers have plenty of funds in reserve but are literally backed up in their claims department with files. These files are waiting to be settled but we often don’t know it. If a defense lawyer reaches out on a case, it might not be a bad idea to find out if the carrier is in a “run off” type business or simply needs to move files.
e. Mood of the marketplace – With the exchange of electronic information via listserv and other electronic bulletin boards, lawyers are able to gauge which lines of disputes are settling and the range of value. That being the case, consider where your case stands in the marketplace. It might be that your case is such a unique outlier that you would not want to negotiate early because the value will only come after certain damage depositions are taken. On the other hand, you might need to move the case quickly because of the many minefields it has such that you are more than willing to settle for market value or less.
f. Current state of legal defense – This is really a question of uncertainty in the law. In wage and hour class action litigation there are usually a number of areas where an employer simply can’t rely on a clear rule or approach in paying wages. The uncertainty opens the door to settlement opportunities, particularly where the plaintiff is reasonable. It does not give rise to settlement opportunities for hunters and gathers who want to eat all the vegetables they find in the garden.
g. Opposing counsel – Reasonable counsel usually means reasonable clients. Follow the cues when counsel opens the door to discussions about the case. It is hardly a sign of weakness to want to discuss settlement.
h. Case facts – Some facts speak for themselves and others require a lot of explanation. Most cases fall into the latter category. If your case speaks for itself, offer up transparency in providing whatever information your opposition requires to fully evaluate the merits.
i. Information needed to evaluate – Put yourself in the shoes of your opponent. What would they need to advise their client about the case? Imagine they are drafting a formal report that goes through the strengths and weaknesses, and provides a financial quantification of your dispute. It would certainly be in your best interest to arm your adversary with whatever information might lead to a fair evaluation that opens the door to a reasonable negotiation. In other words, tee it up for the other side so that they can be your champion with their client.
j. Future cases with adversary – Are you a frequent flyer with this defendant or law firm? If so, make sure they know that the case at hand is either an outlier or falls within the scope of what they are accustomed to getting from your firm. Failure to do so will result in an evaluation that is mediocre.
k. Symbols matter – The Confederate flag became a symbol of hate in our country. It stood in several government buildings in the south until people used “self-help” to eliminate the symbol. Your confederate flag consists of nasty emails, defamatory statements about lawyers and their clients on electronic bulletin boards and so on. These symbols inevitably get into the hands of your adversary so be forewarned. Communicating in a respectful and principled manner in writing is the only way to properly vet a case for mediation.
Terms of Engagement
After considering the above checklist (which will no doubt be supplemented to adapt to your case), it’s now time to negotiate the terms of engagement to mediate. Here are a few quick things to remember:
a. Scheduling – Mediators who understand how to close deals are in high demand, meaning that getting a last minute case onto their calendar is challenging. Consider reserving a couple of dates which select mediators a year in advance with an understanding that those dates will be returned to the mediator with ample notice if not used. Take advantage of the administrator for the mediator who usually knows how to herd cats;
b. Who will attend the mediation – When insurance is involved, particularly carriers from geographic distances outside your jurisdiction, do you need them at the table or will telephonic availability be acceptable? In a commercial setting, is the Chief Executive Officer attending or is s/he sending a subordinate? Discuss the pros and cons with your adversary and make it work for them.
c. Where will this mediation occur? – Generally speaking, a mediator is more effective in his or her neutral space. Conducting the session in a law office does work but doesn’t utilize all the skills a mediator needs develop a proper settlement dynamic.
d. Costs – In most cases, the cost of a successful mediation shared by all parties is miniscule compared to the value obtained in settlement. Don’t be penny wise and pound foolish. You get what you pay for, no matter the size of the dispute.
e. Pre-Mediation Conference – In any case that is sizable, schedule a short call with the mediator in advance of the mediation to highlight the areas that might be an impediment.
f. Agreements – Consider exchanging either a formal Settlement Agreement and Release or Memorandum of Understanding before the session. While there are some terms that are subject to negotiation and can be left out, at least the key terms can be handled without wasting precious time at the conclusion of the mediation.
We are hunters and gatherers. A form of entrapment is built into the civil justice system since it cannot handle our desire to eat all the cherries that are picked in the forest. As a result, we have asked mediators and others to assist in our efforts. Mediators are often misled and used as pawn when they are put into a case where the parties haven’t considered the intermediate steps outlined above. This has led to wasted resources and time, which is contrary to why mediation was placed into the system in the first place.