To be an excellent lawyer for a client in mediation it is not enough to just say, “Oh I’ve got a mediation tomorrow, here, let me pick up the file and head on out.” To be excellent, it takes more than that. Listen to this episode as Host, Jean Lawler–commercial + insurance mediator and arbitrator–shares her list of top 3 things that excellent lawyers do for their clients in mediation.
Resources mentioned:
Holding the Calm: The Secret to Resolving Conflict and Diffusing Tension by Hesha Abrams
Will Work For Food: The New Possibilities Hour, Holding the Calm, The Advanced Course, Presented by Hesha Abrams
To read the full episode transcript please see the Podcast Website.
About the Host:
Based in Los Angeles, CA, Jean Lawler is an attorney and mediator, focusing on commercial, insurance and civil litigation matters pending at the trial and appellate levels - wherever filed. She regularly mediates a wide variety of insurance, business, and tort matters, as well as federal ADA accessibility lawsuits re architectural barriers and websites. CIPP/US (Certified Information Privacy Professional) certified, Jean also mediates matters involving data breaches, ransomware, and cyber losses. She has mediated hundreds upon hundreds - thousands - of cases over the years with a myriad of issues. For a more detailed sampling of the types of mediations that she has conducted and participated in, both when in practice and as a full-time mediator, please refer to her web page detailing Representative Matters.
Prior to becoming a full-time mediator in 2017, Jean was a Senior Partner in a Los Angeles based litigation firm, representing corporations, professionals, non-profits, individuals, and insurers in a broad range of matters, at trial and on appeal - mediating hundreds upon hundreds of cases over the years. Her legal experience has been diverse and international, and she has a deep knowledge of the insurance industry, insurance policies and the various risks they insure against (primary, excess, reinsurance, program, surplus lines, London Market, and international insurers). She also served as a Managing Partner of her former law firm, at times chairing the firm’s Insurance Law, Cyber & Privacy Law, International Law, and Business & Real Estate Transactions practice groups and, ultimately, served her many clients as counselor and trusted advisor.
As she would tell you if asked: “I absolutely love what I do! I would be honored to serve as your Mediator or Arbitrator.”
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Thank you for reading this transcript of the ROADS TO Resolution ~Closure ~Certainty Podcast for the episode entitled, “3 Things Excellent Lawyers Do In Mediation”. To improve readability, this clean verbatim transcript also includes additional headings (not part of the audio). The transcript is human generated, so there may be minor errors. Thanks for your time!
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Well, hello and good day. I’m Jean Lawler, I’m your host of the ROADS TO Resolution ~Closure and ~Certainty Podcast, and it's a pleasure to be here with you today. So, what do I want to talk about today? I have had some thoughts lately about what excellent lawyers do for their clients in mediation and I thought I would share with you three of those things. This list is of course, not meant to be exhaustive or exclusive, and I would invite any of you to add to this list in the comments on LinkedIn or wherever it is that you’re watching or hearing this video or podcast. Or just give me some feedback and let me know.
So anyway, what are three of the things that I think that excellent lawyers do for their clients in mediation?
#1: Excellent Lawyers Understand Their Client's Needs and Wants
Well, first and foremost, I think excellent lawyers, they understand their client’s needs and wants. And they can differentiate between the two and they make sure that the mediator can differentiate between the two. Certain things may be non-negotiable or maybe the client is confusing needs and wants–considering everything to be a need when really some of them are wants. And it's the wants where you can negotiate things maybe, where you’re not willing to negotiate on things that are needs.
So I think that an excellent lawyer clearly understands those things and they’ve prepared their client in advance to differentiate between those as well, and they’ve made sure that in the pre-mediation conference call or in their briefs that maybe they advise the mediator of some of those things. But ultimately, understanding their client's needs and wants. Okay?
#2: Excellent Lawyers Are Logical and Supportive of Their Client
Another thing that I would add to this list is–I think excellent lawyers in mediation, excellent lawyers for their clients (I should say) in mediation, they tend to be very logical. They understand the process and they understand the give and the take, and these sorts of things.
They’re knowledgeable. They’re knowledgeable about their cases that they have, they’re knowledgeable about where they think they can negotiate or not. As I mentioned, they’re knowledgeable about their client's wants and needs, but they’re knowledgeable about the law and the facts, and they put them together very well. They’re prepared. They’ve taken the time to prepare themselves, not just say, Oh I’ve got a mediation tomorrow, here, let me pick up the file and head on out…No, they’re prepared in advance.
They’ve talked to the mediator in advance in a pre-mediation conference call. They’ve provided the mediator with a mediation brief. They may have shared a brief with the other side to alert the other side to what their positions are and if they do that–which I think is a wonderful thing to do, sharing documents or a mediation brief, and keeping the confidential stuff just for the mediator. But sharing far in advance so that the other side has time to consider the points that are raised.
Certainly for a plaintiff, you want to make sure that you get the mediation brief to the other side–whatever it is you might be sharing–with enough advance notice as possible so that the decision-maker can review those points, they can ask their lawyer about them, they can maybe roundtable them. You’re dealing maybe with risk managers, general counsel, business owners, individuals, and insurance company representatives. There’s all sorts of people that could be involved in that decision-making.
And on the other side, for the defense sharing…If you share far enough in advance, it gives the plaintiff counsel an opportunity to consciously and knowledgeably discuss with their client the points that you’ve raised. And maybe you pointed out points that showed some of the weaknesses in their case. Maybe things that are their strengths, you know, your strengths, whatever it might be. It just helps people to have a chance to consider the positions being espoused by the other side from the viewpoint of the opposing side, and not just accepting what they put on the paper in a mediation brief as being the ultimate be-all-end-all. Okay?
But then, ultimately, I think these lawyers, these excellent lawyers, they’re also very supportive of their client. And I mean that in more of a personalized way. They’re nice to their clients, they do not get caught up in emotion. They recognize what their clients want and will do what the client needs to be able to get their points across. You know, just supportive, and there’s a lot that can go into being supportive. But they are supportive of their client and their client’s position, but in a knowledgeable, logical, and prepared way.
#3 Excellent Lawyers Are Able to “Hold the Calm”
And the third thing is, I’d say, and I touched on it briefly a few minutes ago here, but I think that excellent lawyers for their clients in mediation, they have the ability to “hold the calm”. What do I mean by “holding the calm”? Well, I mean that they are not going to become emotional or aggravated, or at least not express that. They’re not going to become angry. They’re going to make sure that the client’s “calm” is maintained, and to do that they have to maintain their own “calm”.
There’s a book by Hesha Abrams, it's a wonderful book, it's called Holding the Calm: The Secret to Resolving Conflict and Diffusing Tension, and this is where I do get the phrase “holding the calm” or “hold the calm”. And it is available on Amazon. She spoke for Will Work For Food: The New Possibilities Hour and it was an amazing presentation. So you can catch the video there.
But on Amazon, a little snippet of what it says that this book is about is that through the book you learn how to #1, “Speak into the ears that hear you.” And that’s so important.
What ears are listening? How do you phrase things to have the best impact? What is it that when you phrase your client’s wants or needs that the other side will hear? And how can you do that?
Learn how to “be the grown-up in the room”. These excellent lawyers are definitely the grown-ups in the room. And ideally their clients are as well. But if a client goes off a little bit, I have seen clients screaming and yelling and the like, and just totally losing control. The good, the excellent lawyer, not just the good lawyer, but the excellent lawyer will help them regain their “calm”.
These lawyers by “holding the calm”, they “listen [not just to what is said, but] to what is not said”. And they understand that and then can negotiate accordingly. And they’re good at “creat[ing] small, winnable victories”, according to Amazon that is what her book talks about.
This is true for these lawyers because in taking things in bite size pieces, so to speak, or as my husband used to say about going to Disneyland, a land at a time. If you have small victories… What is it that’s really important? Maybe you don’t talk about all that at first. Maybe you take care of some of the little adjunct issues and get those resolved. And by maybe giving up on one thing that the other side wants (it's not a need for them, or maybe it is their need, I don’t know), you know, then maybe you get something in return. And then dealing with the hard core issues… So “holding the calm” that’s what excellent lawyers in mediation do. They’re wonderful for their clients in doing that.
Anyway, so, those are three of the things that came to my mind, that I had in mind, when I was thinking of three things that excellent lawyers do for their clients in mediation, and I would love to hear, as I said before, I would love to hear from you as to what you think. And if you’re watching this on LinkedIn, feel free to put comments below. Thank you so much, it's always a pleasure being with you and please feel free to connect with me or follow me on LinkedIn. Subscribe to my YouTube channel. Listen to my podcast. Thanks so much. Bye.
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