If offered a Heineken, I’d say …

If offered a Heineken, I'd say ...

… “No, thank you.” It’s nothing personal, I just prefer other refreshments.

But the 2017 Heineken YouTube video “Worlds Apart” is an insightful example of how empathy and humanity can open doors for meaningful conversations on the road to understanding. Which makes me say “yes” to watching the video. 

If you haven’t seen the video, in it Heineken brings together strangers with strongly-held opposing viewpoints and asks them to follow directions on how to complete a task together. The task: building a bar. Heineken provides the materials with instructions on what to do with them. While they understand the goal of working together to build the mystery object, what they don’t know is that they have opposing viewpoints on topics important to them.

Once the bar is built, the participants are directed to stand next to each other and shown videos of each other expressing their viewpoints. They are then given a choice: either leave the room without speaking or sit at the bar they just built and discuss their differences over a Heineken beer.

What follows is an inspiring display of how the common experience of building the bar humanized the divergent viewpoints. And with a bit of empathy we watch each of them sit down and share their perspectives in a respectful and open-minded way. While acknowledging their differences, they listen to each other, and find common ground. 

What does this have to do with mediation?

Sometimes disputants seem to be so focused on winning their conflict that they lose sight of theirs and their opponent’s humanity. This can be especially notable in cases between strangers. But it happens too in disputes between friends, business partners or colleagues, and even family. They are so caught up in their side of the dispute, that they are not able to easily stand in their opponent’s shoes and see (or feel) the situation from their vantage point. While this is not true in every case or in every mediation, in those in which it is, the Heineken video is a powerful reminder of how important it can be for parties to find something in common on which they can begin to build a resolution, all without losing their dignity.

In mediation, this is a key task. The following are a few reminders of how to introduce a little humanity into the mediation process:

Find areas of agreement: Starting with pre-mediation conversations with the parties and/or their counsel, we should be looking for areas where the parties are (or can be) in agreement. Maybe the parties agree on liability but disagree on damages, for example. By talking about areas in which there is some common ground, we are able to not only facilitate a positive environment for the negotiations, but also to encourage the parties to look for other areas of agreement they haven’t uncovered yet.

Identify shared goals: Similarly, starting with pre-mediation discussions, it is helpful to know what the parties want to accomplish through the mediation and/or the lawsuit. Write this down in your notes, and when they have a common goal, ask permission to share. This can help to shift the focus from their differences to the things they both want to achieve and are committed to working for.

Identify underlying interests: Interests are not goals. To find an interest, we need to look beyond the parties’ positions to discover what is really driving the dispute. This usually is not openly obvious, but can be discovered through open-ended questions and learning about the parties themselves. By knowing what the underlying interests are, we may discover commonalities that will further build the bridge from both sides.

Acknowledge emotions: Emotions often run high in litigation and conflict, and that’s ok. Don’t ignore them. Recognize and validate them to create a space in which everyone knows they are being heard and understood.

Actively listen and encourage it in return: Actively listen to the parties as they talk about their goals and interests, and their emotions. But also encourage them to actively listen too. None of us know what we don’t know, and it’s through the process of paying attention to new information, or perhaps old information presented in a different way or by a different person (e.g., the mediator) we learn something that can shift views of the conflict and provide a clearer picture of a world without it.

Use neutral language: Neutral language is language that does not favor one party over the other or is perceived as judgmental or biased. It is key to creating a safe and respectful environment through which the parties can trust the process enough to end the conflict.

So, don’t judge the video by the beer. While I personally don’t like Heineken, I can appreciate the humanitarian message its “Worlds Apart” video envisages and what it demonstrates about the role of humanity in conflict resolution.  

Felicia Harris Hoss

is a credentialed advanced mediator (TMCA), arbitrator, early dispute resolution (EDR) neutral, and attorney with more than 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Reviewing Mediator’s Proposals

Reviewing Mediator's Proposals

A mediator’s proposal is a settlement recommendation presented confidentially by the mediator as an extension of meaningful discussions with each party. When provided, a mediator’s proposal relays a set of terms that the mediator believes each party might accept as a basis upon which to resolve the conflict.

To be clear, a mediator’s proposal is not a substitute for substantive party negotiations. If the parties can find a solution on their own, it is the inherent and primary role of the mediator to help them find it. However, in situations in which the parties have worked hard, exhausted their negotiation authority, and a gap remains, sometimes all the parties need is a little outside assistance – a nudge – to keep the process moving forward. 

When a mediator’s proposal is extended, the question then becomes what to do with it. The answer depends on the specifics of each case, but in almost any case, the following points will jump start a thoughtful decision-making process: 

First, determine whether the mediation is one in which the parties are negotiating in good faith.  Because the hallmark of a mediated settlement is party self-determination, the success of mediation depends on the parties’ good faith willingness to work together to find a solution. If the parties are committed to the process and have exhausted their authority, a carefully drafted mediator’s proposal may offer a fresh perspective that helps the parties overcome sticking points to resolution. 

If the mediator extends a proposal, review it carefully and objectively to determine whether it proposes terms that are fair and reasonable, specific and clear. While a mediator’s proposal may recommend terms upon which to resolve the entire conflict, it can also be designed to address specific roadblocks that need to be cleared to keep the negotiations going. However broad or narrow it may be, a mediator’s proposal, to be credibly considered, should address each party’s respective needs and interests and recommend a balanced solution that does not unreasonably favor one party’s interests or needs over another. 

A mediator’s proposal is not a substitute for a neutral evaluation of the case. There should be no doubt in a party’s mind that the mediator’s proposal does not reflect an evaluation of any party’s legal case. When presented in writing, a best practice is for the mediator’s proposal to expressly state that it is not intended to be (and should not be construed as) an opinion on the meris to any party’s claims or defenses should a trial ensue.  

Importantly, the proposal should clearly communicate the process and deadline by which a response must be confidentially submitted to the mediator. While decisions about whether to request, consider, or accept a mediator’s proposal are to be made on a case-by-case basis, the process for accepting or rejecting a mediator’s proposal should always leave open the option of future negotiations if the proposal is rejected. 

To this end, the mediator should ensure that no party knows how another responds unless all parties accept the proposed terms. If it is not otherwise clearly stated, the parties should ensure the proposal clarifies they are to separately and confidentially contact the mediator with all questions and other communications concerning the proposal, including a timely response to accept or reject it.

Finally, whether the parties accept the proposal or not, the mediator should contemporaneously inform them whether or not a settlement has been reached.

DISCLAIMER: As with any mediated negotiation, decisions about whether to accept or reject any proposal should be considered in consultation with your legal counsel. Nothing in this article is, is intended to be, or should not be construed as, legal advice. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Factors Favoring In-Person Mediation

Factors Favoring an In-Person Mediation

In-person mediation and remote mediation both have their advantages and disadvantages. The choice between the two depends on the specific circumstances of the dispute. 

In those situations where cost, schedules, and geography are not barriers to meeting in person, the following factors are reasons to choose to mediate in person rather than remotely:

High conflict disputes: When emotions are running high or there is a high-level of distrust, appearing in person for mediation can help the mediator lower the emotional stresses and engender greater trust. Being in person also brings body language and clearer facial expressions into the conversation which lowers the risk of miscommunication and improves the overall effectiveness of communication.

Complex disputes: When the negotiations involve detailed discussions about complicated or complex issues, an in-person mediation allows for more nuanced communication which leads to a better understanding of each party’s position.

Cultural differences: When there are significant cultural differences between the parties, an in-person mediation allows for a better understanding of each party’s cultural preferences and communication styles, in part because non-verbal cues like eye contact, facial expressions, and physical contact are more easily noticed during the conversation. An in-person mediation also affords an opportunity for a mediator to build rapport and respect with food and drink options that helps make the parties feel more comfortable in what may be a stressful situation.

In-person mediations also make it easier to overcome language barriers, if the parties come from different backgrounds. It is easier to communicate with and through an interpreter, for example, in-person where reliance on a microphone or speaker quality are removed.

Confidentiality concerns: Many articles have been written and laws passed stressing the importance of confidentiality in mediation and the challenges presented to protect this aspect of a remote mediation. Simply stated, during remote mediations, it is impossible to know whether someone else is in a room and off-camera or if a party is recording the mediation session. By contrast, during in-person mediations, the mediator exercises a greater level of control over the environment which better assures that all parties are complying with their confidentiality commitments and information is not inadvertently being leaked.

Need for physical documents: While screen sharing is convenient, asking a person to make a document larger so it can be read, or to scroll one direction or another, or to switch between documents on the screen can be cumbersome, time consuming, and distracting. During in-person mediations, the physical exchange of documents and examination of other evidence is fluid and can be accompanied by private discussions between parties and their counsel.

Empathy: In situations in which a party’s physical presence in a courtroom may impact how a jury evaluates the evidence, an in-person mediation provides an opportunity to more empathically weigh how certain evidence or a party may present in a courtroom.

While in-person mediation may be preferred and generally more effective in these situations, this is not to say that conflicts with these factors cannot be resolved via remote mediation. Ultimately, the choice between in-person and remote mediation will depend on the specific circumstances of the dispute, the needs and preferences of the parties involved, the skill of the mediator, the reliability of technology, and the willingness of the parties to meaningfully negotiate in whichever forum is agreed upon.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, settlement lawyer, and early dispute resolution (EDR) neutral, with more than 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Party Control In Mediation: Tips & Best Practices

Party Control in Mediation: Tips & Best Practices for Clients

Mediation is uniquely different from any other aspect of a litigated or arbitrated dispute in that the parties determine how it will end. In other words, they are in control. They decide whether to settle and on what terms. They can be as creative as they want to be, subject only to what they reasonably consider valuable to resolution. They decide what the mediator may or may not disclose during the negotiation and who the mediator will be.

Contrast this level of control against what happens at trial, and a clearer view of why this benefit matters emerges. At trial, the decision-maker — either judge or jury — is a stranger to the conflict and to the parties’ business or personal affairs. A trial outcome is binary – there will be a winner and a loser. Decisions about what information the jury hears and sees, and upon which its verdict will render, are not made by the parties, but rather by the judge. Who the judge is, is determined through a process that is not controlled by the parties. After the trial is over, there is always the possibility one party will ask another set of strangers — appellate judges – to determine the parties’ future.

The Importance of Control

Whether a party values control or thinks the other side will, the importance of control in the mediation process cannot be understated. Along with confidentiality and creativity, control ranks high as one of the reasons why most people find resolution through a mediated negotiation.

Numerous books have been written discussing how control factors in human decision-making and inter-personal relationships. Books like William Glasser’s Control Theory: A New Explanation of How We Control Our Lives, Patricia Evans’ Controlling People: How to Recognize, Understand, and Deal with People Who Try to Control You and Robert Cialdini’s Influence: The Psychology of Persuasion have been around a while, and are just a few that explore and highlight how the feeling of control influence’s behavior. In his recent release, Catalyst: How to Change Anyone’s Mind, occupational behaviorist and Wharton School professor Jonah Berger discusses how the need for freedom and autonomy affects behavior. He says that, because people want to feel in control of their personal lives, pushing, telling, or encouraging someone to do something often makes it less likely that they will comply.

When people feel like they are in control, they are generally happier, healthier, and more willing to follow through on whatever it is that is expected of them. For a plaintiff wanting the other side to pay money or to do something (or not to do something) in the future, there can be tremendous value and peace of mind in not having to return to the courthouse to seek court assistance to force the other side to perform as commanded by a court’s judgment. For a defendant, knowing that the terms on which the conflict was resolved were consented to makes following through on the agreement more palatable, even if it still hurts a little.

So, in a word, having, keeping, and feeling in control during the dispute resolution process is powerful in that it not only promotes resolution, it also fosters follow through – real finality.

Preparing for Mediation

So, what can the parties do to prepare themselves for the mediation session. The following are a few considerations and best practices:

  1. Timing for mediation. It is rarely too early to consider mediation. Early in the life-cycle of a conflict or lawsuit is a good time to talk with counsel and/or the other side about the possibility of mediation. Often the crux of disagreement stems from a lack of communication or the wrong kind of communication. Involving a mediator can open and improve lines of communication, to help the parties understand each other’s point of view, and guide discussions down a path that bridges the differences.
  1. Understand the risks of litigation. Ask counsel to prepare and send a written objective case evaluation (“OCE”). An OCE should outline the known and unknown facts in the case, discuss the legal standards and requirements that will guide a court’s decision, review the strengths and weaknesses of both sides of the conflict, and offer an opinion of the likelihood of success as balanced against the inherent uncertainty of a trial or dispositive motion filing.
  2. Prepare yourself and talk with counsel. Before the mediation, schedule a time to talk with counsel about the mediator and the mediation process. Ask questions about the OCE and the materials s/he has delivered (or will deliver) to the mediator in advance of the mediation. Start the process of brainstorming what kind of offers you may be willing to make (or to accept) and the reasons why (e.g., the risks or costs of not settling versus the certainty of settling).
  3. Get to know the mediator. Most counsel will schedule a time to talk with the mediator before the mediation. If you want to meet the mediator in advance, ask to schedule a telephone call, Zoom conference, or in-person meeting. Start building a rapport with the mediator before the mediation, so that you arrive at the mediation with an understanding of who s/he is, prepare yourself mentally for the session, and are ready to help the mediator help you.
  4. Know your BATNA and what it costs in time, money, and distractions. Request a budget from counsel for the costs of continued litigation. Do what can be done to identify and evaluate the value of trade-offs between the present value of a certain proposal versus the uncertainty and costs associated with the trial process. This kind of information can be useful in evaluating offers and measuring how a prospective settlement measures against the effort, risks, and potential “win” at trial weighs against the associated investment needed to achieve that goal.
  5. Try to understand the other side’s perspective, even if you disagree with it. Spend some time thinking about the dispute from the other side’s perspective. Do not focus only on positions, the facts, or the law. In this exercise, also try to imagine their human situation. Ask yourself, what unspoken factors may be driving their decision-making. What can you do to positively influence their response to your offers and open their minds to resolution.
  6. Be prepared to help the mediator help you. Arrive at the mediation on time and bring with you the materials you need to help you make decisions throughout the day (e.g., key questions, depositions, documents, and the OCE, budget, etc.).
  1. Participate in good faith. Have an open mind. Most people are able to successfully resolve disputes at mediation — even disputes that they never thought could be settled outside of the courthouse.

No two mediations are ever the same, but with proper preparation and the right frame of mind, even a mediation in which settlement is not reached can meaningfully set the stage for resolution in the future. Once lines of communication are open, it is easier to keep them open. And most mediators will welcome the chance to keep the conversation going if the parties are so inclined.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

Constructing the Future from the Past in the Present

Constructing the Future from the Past in the Present

Recently, while I was standing on the third-floor walkway in the Brazoria County Courthouse that connects what is sometimes called the “old courthouse” (built in 1940) to what is the “newer courthouse” (an expansion added in 1979), I snapped this image with my phone.

In this image, we can see on one side the stones and artwork that adorned the exterior of the “old courthouse” and on the other side, the walkways and brick used to build the “newer courthouse.” And in the center – through the windows – we see a blue box under construction – a future new courthouse.

Yesterday, I found myself looking at this image and appreciating its symbolism both literally and metaphorically.

Through mediation, I help parties engage in an ongoing negotiation to resolve their present conflict through a process that relegates a great deal of control to them as to how their respective futures could be constructed.

Just as we see in this image, in mediation the past is clearly in view and connected to the present. That past is what brings the parties to a place like this at which their future hinges on what could be decided either by them or a stranger (a judge or jury).

In the present, the decisions parties make in mediation open windows through which they can see a path to the future. A future, perhaps, under construction, perhaps out of focus, and seen only through their mind’s eye initially. A future that they aim to construct through the planning and preparation they commit to undertake in the mediation process. A future that, as the mediation session wears on, is under construction and starts to come into sharper focus. And with a clearer view, a future that each begins to realize is not only possible, is one that can be firmly grounded on the parties’ terms.

That future is built frequently by parties using the simple tool of mediation.

In a way, this image captures perfectly the literal and metaphorical construction zones in which I find myself standing often as a mediator.

(For a brief history of the Brazoria County courthouses, visit the Brazoria County Historical Museum website or read this summary.)

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

“Winning from the Beginning” with Early Mediation

"Winning from the Beginning" with Early Mediation

In a recent podcast published by the Legal Talk Network, jury consultant Jason Bloom said that “Gen-Z” jurors (described generally as being born between 1995 and 2010) are statistically more inclined to try to “rewrite the law,” more plaintiff-oriented, and prone to larger damages awards. Depending on which side of the “v” a party lands, this might be good news or not-so-good news.

Regardless of which side of the “v” a party finds itself, it is news that should not be ignored.

As early as 2011, with the appointment of the Planned Early Dispute Resolution Task Force, the American Bar Association has shown an interest in early resolution strategies. With a growing backlog of pending disputes in civil courts, and the changing demographics of jurors, the timing is arguably ripe for broader discussions on the topic that include feedback from those who have used early settlement strategies successfully.

The ABA is delivering that programming as part of Mediation Week 2022 (October 17-20, 2022) through an online presentation entitled “Winning from the Beginning” which will spotlight early mediation.

On October 19th, a panel of experienced in-house and outside counsel and neutrals will discuss insights, tips, and strategies for effectively mediating disputes early. Participants will learn from:

              Theresa Bevilaqua, Partner at Dorsey & Whitney LLP (Minnesota)

              Lucy Clark Dougherty, General Counsel and Secretary, Polaris Inc.

              Mary Cullen, Attorney, Mediator & Arbitrator, The Cullen Group (Minnesota)

              Noah Hanft, Mediator & Arbitrator, AcumenADR LLC (New York)

              Chauntelle Wood, Senior Associate at Baker Botts LLP (Texas)

Among the topics to be covered, the panelists will share insights and strategies on

  • developing and using objective case evaluations,
  • persuading parties and opposing counsel to consider early mediation, and
  • how alternative fee arrangements (AFAs) support resolution strategies and foster relationships between parties and their counsel.

 

Registration for the ABA’s “Winning from the Beginning” 2022 Mediation Week online program is open until October 18th and available here.

As this year’s planning committee chair, I hope to see you on the 19th (Noon-1:30 pm (Central))!

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

How Do You See It?

How Do You See It?

Some will first see a duck head; others a martian caricature. 

When told to look for something else, and given a hint as to what it is, most of us will rearrange the lines in the image and soon be able to “see” the other image too. Once we have more information; once we know there’s more to see; our brains are capable of reprocessing the same information and finding a different outcome.

The same thing often happens in conflict too. Which many of us have probably seen.

In an initial investigation, even before a lawsuit is filed, for example, we’ve asked a party or potential witness how s/he thinks the other side “sees” the brewing conflict. We’ve sought answers to questions like “What do you think is causing (or caused) the other side to engage (or not engage) in the offensive conduct?” and “What would you consider a successful outcome for the conflict?” and “What do you think the other side might consider to be a reasonable resolution?” And from the responses, we’ve watched as they reprocess the information provided to “see” the situation from the other side’s perspective. Questions like these are invitations to rearrange the same information with an eye for the opposing viewpoint. They tend to serve a dual purpose in not only stimulating an evaluation of risks and uncertainties, but also opening up options for resolution too. 

Again, as experienced litigators and problem-solvers, we’ve seen this process unfold many, many times over the years. But, recently, in reviewing some statistical data about Harris County civil caseloads, it was hard not to think about the value of doing this kind of thinking early in the lifecycle of a conflict through pre-suit and early mediations.

A review of data available at www.CourtStatPack.com indicates that in Harris County more than half of all non-family civil lawsuits that were resolved in 2019 and 2021 were removed from court dockets with the plaintiff’s consent pre-trial. Specifically, the data indicates that approximately 60% of all non-family civil conflicts deemed significant enough to warrant becoming a matter of public record were voluntarily removed from court dockets in the year before the pandemic and the year after the pandemic. 

Although there are a number of reasons why cases resolve, one significant and prevalent reason is often seen in mediation where, like the image above, parties are able to see the conflict (the past) and resolution (the future) differently and/or better able to understand the other side’s perspective more clearly. Many of us know what tends to follow that kind of thinking. Indeed, in many instances, what may have once been perceived as an unreasonable response, comment, decision, or action (or inaction) spurring the conflict on; now “seen” from an another perspective, perhaps better understood, doesn’t seem quite so unreasonable. Or maybe it still seems unreasonable, but the new information or perspective alters how the parties’ see other aspects of the case, including a potential zone of agreement that wasn’t previously within view.

Considering the data above, one might wonder how many of those conflicts that plaintiffs voluntarily removed from Harris County court dockets were mediated, or could have been mediated and resolved even, before the lawsuit was filed.

It’s impossible to know the answers without expending considerable time and other resources digging into the layers under the layers of each and every case filed in those years (see chart below). But, considering other available data indicating that more than 16,500 fewer cases in 2021 (49,043) than in 2019 (65,585) were removed from Harris County civil dockets, it is not hard to see the prospect of a growing backlog and the value early mediation offers not only to parties, but to the courts too in the current, post-pandemic environment. 

 

Charts and information in this article were obtained from a third-party website: www.CourtStatPack.com, which indicates the underlying data is gathered from the Texas Office of Court Administration. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

“And they lived…. The End.”

"And they lived.... The End."

In his Masterclass, Malcolm Gladwell teaches the art of leaving a little to the imagination. Comparing storytelling to a jigsaw puzzle, Gladwell approves of leaving a piece of the puzzle – a piece of the story – incomplete. This “imperfection” – as Gladwell labels it – draws the reader in and holds her attention. The imperfection, he explains, piques the reader’s curiosity and recognizes that stories can be messy at times, and that’s ok. In this way, Gladwell invites the reader to use her imagination to fill in the gaps in her own voice and, in this way, join him in the storytelling process.  

If we think about the gaps in Gladwell’s stories as ellipses on a continuum, it’s easy to see the similarities in Gladwell’s approach to writing and what happens in litigation. At several points in a legal dispute, the parties and their counsel leave a piece of their puzzle — their conflict — unresolved and ask strangers (a judge, arbitrator, or jury) to fill in those “gaps” with rulings.

Trial lawyers know that every trial is essentially a reenactment of a story. Whether it’s a story about good and evil, the bond of a man’s word, or anything else, at its core – every trial is a morality play in which the parties ask a judge or jury to write the closing scene.

The analogy of an incomplete story that invites a stranger to write the ending might be intriguing to an award-winning author, like Gladwell. But to parties in litigation, the idea of handing control over the outcome of a lawsuit to complete strangers can be stressful and full of uncertainty.

It’s through mediation, however, that parties are able to take control of their own ending. Mediation is that one point in the life cycle of a lawsuit in which the parties are jointly focused on figuring out – if they can – how to end the conflict on terms acceptable to them financially, emotionally, and in all other meaningful ways.  

The task at hand in mediation is not easy, however. Whether the mediation session occurs before a lawsuit is filed or while it’s pending, it’s common for emotions to be high, lines of communication to be strained, and for a certain amount of fear of the unknown to impact the decision-making process. For these reasons (and many others) parties (and even their counsel) often begin a mediation doubtful of its usefulness.

And this is where Gladwell’s genius stands out. An ending left unwritten is an ending open to a host of options. An ending that can be shaped by imagination.

The power of imagination is especially important in competitive and uncertain situations, like litigation. Just as sports psychologists help athletes experience competition so vividly in the mind that the athlete can literally smell, hear, see, and taste the moment of victory long before the competition begins, through empathy, understanding, trust, and questions, a mediator can help parties “see” a path to resolution that wasn’t previously thought possible.

Trusting the process and the mediator, parties are able to imagine and accept settlement on terms that might have once seemed unimaginable – perhaps because they didn’t previously appreciate or know about all of the risks or prospective benefits available. Much like the athlete mentally prepared to endure great pain to win a race, parties who appreciate the opportunity mediation affords approach the session in a better frame of mind, and thus more open to brainstorming ways to resolve the conflict.

In the days leading up to a mediation session, therefore, it’s worthwhile to think of the conflict as a puzzle with pieces that will all fit in the end. And to think of mediation as an opportunity to twist and turn those pieces in all kinds of different directions until the picture is clear and a solution is found. Be a realist, but a bit of an optimist too. Channel the optimism to be imaginative and open to new ideas for ending the conflict.

Think about mediation as that point in Gladwell’s story where he leaves a few loose ends unresolved, and says, “I trust you to write the closing.” And know that, most of the time, through mediation, parties discover a way to jointly write and close that chapter in their lives peacefully and confidentially.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Deciding Whether to Mediate In Person

Deciding Whether to Mediate In Person

In person meetings require more effort, from having to be properly attired to physically transporting oneself to a shared location. If one of the goals of mediation is to reduce costs and increase efficiency, then why would parties choose to mediate in person if, as is true, online mediations work?

Imagine attending a concert from the comfort of your home versus being in the crowd. In both places, you’ll see the same choreographed routines and hear the same chords and lyrics. But the experiences are drastically different. At the live concert, you are immersed in the moment. You are fully and completely engaged. You don’t just watch the concert, you are a part it.

More than two years ago the pandemic caused the worldwide shutdown of just about everything, including in-person mediations, forcing us to substitute virtual human connections through online applications like Zoom for those previously experienced in-person.  

Fast forward and today the consensus is that mediating in a Zoom-room is – and will continue to be – an effective and cost-efficient option for parties wanting to negotiate a resolution to conflicts. My office, like many others, will continue to offer remote mediations and arbitrations for the foreseeable future simply because parties want options, and because it works.

But, as organizations and courts transition back to in-person meetings, social events, and trials, conversations about whether to mediate in-person again are popping up. Once again, parties and their counsel feel they have choices – not just about whether to mediate, but how and where to mediate.

As parties and their counsel start to talk strategically again about where and how to mediate, it seems like a good time to review some of the differentiators between remote and in-person mediation experiences.

Confidentiality. Whether or not mediation is conducted in-person or remotely, confidentiality is always important. But in some cases parties are more concerned about confidentiality than in others. For example, in a trade secret dispute the importance of confidentiality will be viewed differently than in a condemnation matter where the subject is of a public concern.

On balance, because the mediator can control who physically enters a space during in-person mediations, confidentiality is easier to ensure during an in-person mediation.

Enhanced non-verbal communications. The 7-38-55 principal is a widely known rule of thumb about how communication happens. According to the rule, about 7% of communication between humans occurs through spoken words, 38% through tone of voice, and the rest – 55% – through body language.

While body language certainly includes facial expressions that are usually visible on-camera through Zoom, there are other cues such as body posture, fidgeting, and finger tapping that are not typically visible in remote mediations.

Given the significance of body language to the effectiveness of communication, in negotiations involving sensitive, personal, and/or life-changing issues, parties may deem an in-person mediation more suitable for the subject-matter and as a way to eliminate barriers to communication that distance brings.

Investment in the process. There are several currencies at play in the dispute resolution process, in addition to time, talent, and money. Just as the decision regarding venue for a lawsuit or arbitration can significantly affect decision-making, where to gather for an in-person mediation can also contribute to the mindset one or more of the parties brings to a mediation session, especially if travel is involved.

But even local mediations can increase one’s investment to the process. For example, the time and costs of commuting to a specific location necessarily adds to the personal investment the participants make to the mediation process. Whether it is traveling 45 minutes across town in rush-hour traffic and spending more than $4.00 on each gallon of gas, or needing to pay someone to chaperone children, having to physically relocate and be present in one location necessitates greater human energy and time than simply turning on the computer, flipping on a ring-light, and clicking the Zoom app in the comfort of one’s living room or home office. 

Which leads us to the next consideration…

Commitment to the process. Once all of the parties have committed to being physically present at one location for a mediation, they have demonstrated a willingness to physically extract themselves from their normal routines and environments. By doing so, they have significantly reduced the chances that environmental distractions will interfere with conversations and the decision-making process. And, frankly, it is not as easy to quit, even if – at times during the mediation session – frustration levels are challenged. Simply put, it is much easier to turn off a computer to disengage from a stressful conversation, than it is to physically leave a room, get in a car, and drive back to one’s office or home.

Environmental control. During an in-person mediation, the lighting, temperature, ambiance, and noise levels for everyone are known, shared equally, and can be controlled. The ability to communicate – through both verbal and non-verbal cues – is not dependent upon the internet or the quality of a microphone, video or lighting sources. And everyone’s basic needs for food and drink are usually well-attended to as well.

It’s been said that environment affects how people interact with each other. Meeting in-person to discuss a legal conflict is disruptive and often feels uncomfortable to the parties. The disruption and discomfort, however, are illustrative of the kind of disruption and discomfort the parties will experience at trial – although on a lesser scale – if a settlement is not reached. As at trial, during mediation, the problem will consume the parties’ thoughts for several hours, possibly an entire day (or days). Physically removed from the hustle-and-bustle of a normal day, this kind of focus helps to clear the mind and concentrate attention in ways that are not possible when sitting in one’s office or living room staring at faces on a computer screen. In this way, such disruption and discomfort are useful to encourage a more robust discussion and analysis.

Finally, a word about health and safety. We still live in a world where social distancing is advised, among other safety precautions. If the parties wish to consider in person mediations, a conversation in advance between counsel and the mediator is appropriate to answer any questions concerning the suitability of the physical meeting space(s) and agree to other terms for the engagement.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Considerations for Early Mediation in Business Disputes

Considerations for Early Mediation in Business Disputes

 

Every conflict is different. In some business cases, disputes can be resolved through mediation before a lawsuit is filed; and, in others, mediation won’t be productive until after a round or two of discovery is completed. It’s not always possible to know whether parties will be able to successfully resolve disputes before the filing of a lawsuit, but there’s rarely any harm in discussing the prospect of a mediated negotiation early in the lifecycle of a business dispute, even if the ultimate consensus is to wait. 

With this in mind, this post reviews three reasons commonly cited for postponing mediation, at least until after a lawsuit is filed:

  • We don’t want to appear weak.
  • We want to win the race to the courthouse.
  • We need discovery before we mediate.

Appearance of weakness

Concern about an appearances of weakness is a response either side may express, but it’s probably more common to hear it cited by a defendant (or potential defendant). At a basic level, it’s really nothing more than a natural, human response to an attack – somewhat akin to a fight or flight reaction. But, in legal conflicts, there are so many factors to be weighed at the outset of a conflict, that its worthwhile to think hard as to whether an appearance of weakness is a relevant basis for avoiding an early mediation.

Let’s be clear, there are legitimate instances in which this is a valid concern. But, in most business disputes, an invitation to mediation at any time really shouldn’t be considered a sign of weakness. Nor should the willingness to accept an invitation to mediation be viewed as such. 

To illustrate, consider that, in most human interactions, invitations to do or participate in something are extended from a position of strength. An invitation to discuss what’s driving a conflict and ways to potentially resolve that conflict really is no different—it’s a sign of confidence.

The party proposing to engage in a conversation, even if it’s also a negotiation, actually does so from a position of strength. It is not always easy for a person to extend an invitation to meaningfully discuss a sensitive or potentially controversial subject with someone expected to hold an opposing view on the matter. Thus, the person extending the invitation is signaling “I am a reasonable person, interested in knowing and understanding your perspective, and discussing options for resolving the conflict on mutually agreeable terms.” These are hardly the traits of weakness.

The “race to the courthouse”

In terms of legal strategy, this reason for postponing mediation until after a lawsuit is filed has some merit. There can be legitimate legal, geographical, and other concerns about venue selection, for example, that a party wants shored-up before broaching the subject of scheduling mediation.

In consultation with legal counsel, this concern can be addressed and a conscious decision made as to whether proposing mediation before a lawsuit is filed realistically poses a risk to potential litigation strategies.

While the filing of a lawsuit might cause some parties to resist an early mediation, in other circumstances it could help to bring a counterparty to the table. The factors to consider on this point are too numerous and case-specific to address here. What’s important to remember is that, just because a lawsuit is filed, does not mean that efforts to negotiate a resolution may be fruitful only after extensive rounds of discovery.

Balancing the Need and Value of Discovery

In business litigation, the need for discovery before considering mediated settlement discussions is a topic that can be considered from two viewpoints – the viewpoint of a business owner and that of a litigator.

Let’s start with a recognition of the inherent value in fact-based decision-making, which in litigation is facilitated through the discovery process. The value of fact gathering through discovery, however, should include considerations of what information is already within the files of the business, what’s really needed to make a business decision about potential settlement (as compared to what is needed to try the case), and the inherent costs of the discovery process. The amount and type of information a business owner, for example, typically relies upon to make calculated decisions about risk and resolutions may not necessarily be the same as what a litigator relies upon to analyze risks relative to the prospects of a trial.

This should come as no surprise, since a business owner looks at conflict from a different viewpoint than a litigator. Most reasonable business clients view legal conflicts as problems detracting from day-to-day business operations. A litigator, on the other hand, likely sees dealing with legal conflicts as his business. As a result, even though both share the same goals and will work closely together to develop and implement a resolution strategy, a business owner may see the prospect of an early resolution differently—perhaps even more valuable—than a litigator.  

For example, a landlord responding to a premises claim may have strong defenses and talented counsel in place to prevail in front of a jury. If costs were not a factor, the prospective risks of an adverse judgment would seem to weigh in favor of going to trial. But, at what cost? 

Perhaps the costs not only include the costs of defense (attorneys’ fees, experts, and other related expenses) but also potential lost revenue, for example from an inability to lease the premises at a higher market rate while the conflict pends. Or, perhaps, it’s as simple as the landlord isn’t able to invest and acquire new properties because the funds are needed to defend the litigation. 

The business considerations that loom in the shadow of litigation are endless and too diverse to delve into here; but you get the picture. As part of an overall resolution strategy, it’s valuable for business clients and lawyers to candidly discuss their respective attitudes about risk and costs as they relate to discovery needed to meaningfully discuss settlement strategies and the prospect and timing for a successful mediation — early or not.

A Final Note

In addition to the feeling of relief a client has once a problem is solved, it’s worth noting that many clients will be inclined not only to continue building the lawyer-client relationship on future matters, but will also refer new clients to the lawyer too. This is to say, that early resolutions are helpful to establishing long-term relationships and pipelines for opportunities to gain new business clients. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.