Litigation involves people, even if the dispute involves a business and even if it involves a multinational business. Commercial + insurance mediator and arbitrator, Jean Lawler, discusses two key areas to focus on to manage party expectations in mediation, in order to keep parties moving forward. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com
To read the full episode transcript, please see the Podcast Website.
Litigation involves people, even if the dispute involves a business and even if it involves a multinational business. Commercial + insurance mediator and arbitrator, Jean Lawler, discusses two key areas to focus on to manage party expectations in mediation, in order to keep parties moving forward. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com
To read the full episode transcript, please see the Podcast Website.
[intro music]
JEAN LAWLER:
Hello, welcome to the ROADS TO Resolution ~Closure and ~Certainly Podcast. I'm Jean Lawler and I'm your host here today. As a mediator I am honored to be invited into other people's lives for a few hours, like all of our lives, shaped by the many roads that have brought us to our today, roads leading to the unexpected, and roads holding the promise of tomorrow. And today, what I would like to talk about is managing expectation in mediation. These roads that people might follow can lead to outcomes that are either expected or unexpected, but they will lead to roads that can make a difference in changing lives. So, the.. two points in particular… one is handling emotion in mediation, and the second is having the reality check.
In terms of handling emotions…Emotions can run rampant even in the most mundane commercial or insurance case, and the fact is that all litigation involves people, even if it's a business, it's somebody's business, even if it's a huge multinational business, it's somebody's job to handle whatever it was that is at issue. And so emotions are to be expected…How those emotions are handled can play a big difference in how the mediation progresses, or not, and I think it's really important for counsel, uh, before the mediation, to take, to get a litmus test, if you will. You know, take, to check the thermometer on what the emotions are like. If emotions will play a part in the negotiations, then for sure I would suggest that you alert the mediator to this. And as counsel, if there's work you can do, a conversation you might be able to have with your client ahead of the mediation, to talk through whatever the issues are, you know, that would be great, that can help too. And then together between the mediator and the attorney, ideally the preparation can be in place so that the client can be well-served.
The client may need to just vent and that is fine. Managing the venting is the, uh, the key there. I oftentimes will say to a party that clearly is wanting to vent - they may say “I need to vent” or they'll use other words or they'll just start rambling or… I've even had some people during the Covid time here with these online mediations just coming through the computer screen at me, they're so angry about what might, uh, you know, what caused the situation, why they're there today, and how they feel about the other party. I, as a mediator do appreciate it if I get a heads-up from counsel, but then I also can understand why people need to do this, and one of the things that I have done in the past, at times, depending on the situation, is to just say to the person “okay, go ahead, let's say you’ve got five minutes here, let's just get it all out there, just vent,” and vent away they usually will. And, uh, I listen. I try and listen very carefully, not just to the words they are saying, but to what’s underlying the words they’re saying, and why it is that they feel the emotions, and are experiencing the emotions that they’re experiencing. And you know, then hopefully at that point, we're at the, at a place where we can move forward and not, not be, uh, sidetracked or derailed from a successful day by letting emotions control the day.
So that said, then, a reality check… You know, lots of times you get into mediation and you may have gone back and forth over the course of the day and emotions run high there. Offers, demands, those can create emotions going. Um, I usually, well often, not always, but will tell people, “opening demands and opening offers never accepted, don't be upset.”
I really think it's important for the reality check to be brought about by establishing clarity, factual clarity. What is really at issue? And if that hasn't been done in advance of the mediation session, then the mediation session is a perfect place to do that. At least you may as well be sure that you are talking about the same thing, because everyone's reality is a bit different, but if the dispute involves facts that are more concrete or could be determined from looking at documents, from photographs–sharing those during the mediation can make a huge difference.
You know, they say a picture is worth a thousand words, um, and that is so true. Somebody may think they have a wonderfully defensible case, but then they see a picture and it’s like “wow, okay,” or the facts or the loss may not be exactly as the other party thinks, and then that changes their view.
So, I really think that, um, those two things are, are key, and so much time can be put into a mediation session, uh, focusing on managing the emotion on the one hand, and managing the facts and making sure that you are clear on what the facts are, but to the extent that a lot of that can be done in advance, that's wonderful.
I have had situations where counsel got together with me on pre-mediation calls, um, with all counsel from both sides, and then they had the conversation. You know… “Will you be able to give me this?” or “Will you be able to give me that?” “Can I have it by a certain date?” “Yes, I'll be happy to share that with you…” It’s all done under the mediation confidentiality rules or statutes, whatever it might be that's applicable. But, again, all of that ties in with reality checks.
I do think that, um, if you have been able as counsel or mediator, I as a mediator, to manage the reality of the situation, to help the parties make that reality check, then there's a much better chance that if the case is destined for resolution that day, that it will settle that day.
Keep in mind that mediation is a process. It's not an event, and while a mediation may not settle that day, that's fine too. That's why we have telephones and uh, zoom and other ways to continue to communicate. Maybe additional documents need to be viewed or shared. Maybe additional facts need to be, uh, determined and discussed. There are all kinds of reasons why maybe some case cannot settle that day. Maybe you leave the mediation not needing more information, but having clearly in mind… “okay, we want to try this case”... for whatever reason.
Whatever it is, as long as there's been that reality check and clear decision-making, uh, is able to be had, then that day has been a successful day. And as the attorney, you have done a good job on preparing your client. As a mediator, you've hopefully done a good job on helping the lawyers look great in front of their clients, and for the clients you hopefully have had a productive day where you're leaving knowing a little bit more about what's involved and able to make an informed decision.
So on that note, I thank you so much for your time. It's a pleasure to be here with you, and I look forward to talking to you again soon. You can follow me on, find me on LinkedIn, my website is lawleradr.com, and I am here on YouTube or on your favorite podcast. So thanks again, and, um, I'll see you next time. Bye bye.
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