Mediating Hurricane Claims

Florida has the highest homeowner insurance rates in the country, the greatest exposure to hurricanes and hurricane damage and among the highest number of storm related lawsuits.

In 1992, Hurricane Andrew devastated South Florida. The chaos in the legal system that followed provided the impetus for the “stake holders” (government, the insurance industry, The Florida Bar and consumers) to come up with a system to resolve storm related insurance claims quickly and efficiently. The mediation program that emerged from Andrew was deployed to resolve tens of thousands of claims that resulted from five major hurricanes, Bonnie, Charley, Frances, Ivan and Jeanne, hitting Florida in just six weeks in 2004.

The current iteration of state sponsored hurricane mediation incorporates the conventions of all interest-based mediation: confidentiality, to encourage a robust, transparent negotiation between the carrier and the insured; collaborative negotiation, with a shared objective to provide enough resources to repair covered, storm related damages; agreed methods to value the claim, including Xactimate, market based, real world bids and adequate documentation of damage. As good as it works, most of the time, there are still recurring problems that happen in the mediation that send cases to litigation unnecessarily.

There are 2 problem areas that I see again and again.

The first is inadequate preparation for the mediation. If there was ever a situation where a picture is worth a thousand words (and, potentially, thousands of dollars) it is in the aftermath of a hurricane. Many homeowners take pictures immediately after they return to their property. Yet, insureds are not encouraged to tell their story with photos by screen-sharing them in the mediation.

The second recurring problem is failing to give the claim adjuster adequate authority to respond to new information revealed in the mediation. Sending an adjuster with a fixed amount of authority and no one available to authorize additional money, even if it is justified and documented at the mediation, is a frequent cause of impasses and leads to the filing of unnecessary lawsuits.

I have mediated hundreds of hurricane related, first party claims. These disputes are perfect for mediation. When the result is an impasse, it is almost always for the reasons I have outlined above.

The takeaway: Prepare for the mediation with the ability to respond and adapt to what you see and hear.

Mediation in the Fourth Quarter

Fall has arrived, at least according to the calendar. Summer vacations have come and gone, school has started, and the holiday season will start any minute. It is also the time of year when the law business roars back to life. Cases that have been pending and in the works are now ready to be mediated in the 4th quarter.  

I urge you to take advantage of features available with Zoom to fortify your opening mediation presentations. The decision makers are all there at the mediation with the intention of negotiating a settlement. It is your only opportunity to talk directly to the parties themselves so make the most of it.

In my mediation practice, I have seen, again and again, settlements that likely would not have happened absent the power of a thoughtful, coherent presentation at the start of the mediation.  It is also an important way for you to organize and shape the negotiation. Finally, a solid opening presentation can be of real value in educating the mediator about the history of the controversy.

Those of you who have worked with me in the past know that I will do everything possible to help you get your cases settled at mediation. To that end, my online scheduling calendar www.bensonmediation.com/calendar makes it easy for your legal assistant to book your mediations. And I am always available to discuss individual cases to help ensure that the mediation will be successful.

Curiosity & Patience - Keys to Productive Mediations

There are 2 critical characteristics of a successful mediator – curiosity and patience. Mediations are successful when they are productive, i.e., they produce an outcome that allows the parties to move on.

One of the most difficult challenges a mediator faces is engaging with parties and their lawyers and doing so with an open mind and a willingness to listen and to learn. Imagine the far-ranging problems created by a mediator unable or unwilling to let go of his vision of how he believes things ought to be. The challenge in every mediation is to avoid the temptation to jump to persuasion too soon and, instead, patiently, thoughtfully and impartially engage (i.e., be curious) with a party to understand their point of view and make clear your willingness to think hard on their point of view. It is that restraint and self-awareness that exponentially increases the odds of a successful, productive mediation.

How do we use mediation to turn what is essentially a zero-sum game (a lawsuit) into a productive disagreement? First, it is important to acknowledge that most litigants (and not an insignificant number of lawyers) would rather avoid talking about the controversy because they cannot confidently imagine an outcome that does not result only in a winner and a loser. Rather than considering both supporting and opposing views in an impartial manner, the process devolves into scoring points by finding flaws in the other side’s arguments.

It is always easier to talk to someone with whom we agree. When we disagree, we inevitably start with assumptions about the other side. And all too often, we assume that we know what is going on in someone else’s head and, further, we assume the other side does not have an honest argument to support their position. Take for example mediations that begin with lawyers making what they describe as opening statements. Unfortunately, but typically, they begin by telling the other party that it is the only opportunity they will have to talk directly to them and that they should not take offense, because no offense is intended but…they have no case, they cannot win in the court room and if they do not surrender, they may be liable for attorney’s fees. I think a better approach is to express interest in learning more about the other side’s point of view and express a willingness to explain one’s own point of view.

When we are mired in a dispute, we tend to paint with a broad brush and create a cartoon of what we imagine to be the other side’s thinking. We design the mental sketch to prove to them that they are wrong (and that we are right.) We fail to acknowledge the almost universal complaint that the other side will not listen to us, that they are not receptive to consider our point of view. As a result, the parties feel trapped in a bubble of isolation with no incentive to listen because no one is willing to listen to them.

The magic bullet to burst the isolation bubble is allowing that you may not have all the answers and that being competently curious is not a sign of weakness. 

Let's Not Reinvent the Wheel.

It is critically important that Florida quickly re-establish a state sponsored mediation program to deal with the tragedy brought on by Hurricanes Ian and Nicole. Let’s not reinvent the wheel.

Following the devastation caused by Hurricane Andrew to South Florida in 1992, there were tens of thousands of insurance claims that would, under normal circumstances, have taken years to resolve. In response, a coalition of South Florida stakeholders, led in large part by the late Mel Reuben, devised a state-wide mediation program. It was supported by the Bar, the insurance industry and overseen by the Florida Department of Insurance and it allowed homeowners, with or without lawyers, to meet directly with adjusters and work out settlements. Fast forward to the 2004 and 2005 hurricane seasons when Florida was hit with a record number of major hurricanes that caused billions of dollars in insured claims. Once again, a mediation program, run by the Department of Insurance and administered by the non-profit Collins Center, resulted in a 95%+ settlement rate for a record number of claims. See https://www.cardozojcr.com/s/351-370.pdf for an overview of the history of hurricane claims mediation in Florida.

There is no need now to reinvent the wheel. The programs that worked after Hurricane Andrew and the 2004 and 2005 hurricane seasons will work now. The sooner a state-wide hurricane mediation plan is put into action, the better for the people of Florida.

Let The Lawyers Decide

The courts are stepping in and ordering cases back to in-person mediation, returning to a one size fits all approach that makes it difficult for lawyers to decide how best to use mediation. It is not apparent that the judicial decisions to mediate in-person are based on either anecdotal or empirical evidence that in-person should, as a rule, be the norm. Neither is there any evidence that their decisions in individual cases are based on factors pertinent to that case. 

Instead, let the lawyers decide whether to mediate in-person or online. They are in the best position to determine which method is best for their clients. Self-determination is, after all, a cornerstone of mediation. 

I have previously written about the many important advantages of online mediation. In the order of referral to mediation, judges might include a list of factors for lawyers to consider in making their choice. In the unlikely event that they are unable to agree on one or the other, then let the court decide. But, again, leave it to the lawyers.

Covid changed the mediation paradigm; because in-person mediation was unavailable for the better part of 2 years, online mediation became the subject of a large-scale, long-term, informal study that confirmed its value and effectiveness. Many of the imagined shortcomings of online mediation turned out to be just that, imagined. That is not to say that every case is suitable for online mediation, but the vast number of online mediations helped lawyers develop the skills to pick the method best suited to the case at hand.  

Mediation is not a blunt instrument. It can be employed routinely, or it can be used with intention. We have learned a great deal about mediation during this era of covid. When court annexed mediation first began more than a quarter century ago, practitioners saw it as a threat to their livelihoods and judges feared that it would not work and cases would wind up back on their dockets, unresolved. Just look at it now. 

In-person or online mediation, let’s leave it to the lawyers to decide.

Regards,

IN OTHER WORDS, IT’S COMPLICATED.

Hardly a day goes by without a news item that tells us that a company has gone outside the organization to engage a workplace investigator to get to the bottom of an allegation of bad behavior. Who said what and to whom? Who did what and to what purpose? What did they mean to convey by word or deed? In other words, it’s complicated.

For the investigation to have value to your client, it must provide them, and you, with an impartial, in-depth understanding of the controversy. One of the distinguishing features of employment law is the prominent role of psychology. A primary task for the investigator is to understand and put in writing insights that allow you and your client to understand what a person’s behavior reveals about their real motives and intentions. Without a commitment by the workplace investigator to impartiality, and the skill to realize it, it is impossible to produce a useful work product.

Here is a brief checklist you can use to help in selecting a workplace investigator:

• Establish the purpose of the investigation (i.e., for legal advice versus business/remedial purposes.) and make it clear in the engagement letter with the workplace investigator.

• Select an investigator that everyone involved in the controversy will accept as impartial.

• Select an investigator familiar with the law because workplace investigations are conducted against the backdrop of complicated statutes, rules and case law.

• The workplace investigator should make a good witness who will be credible and effective on the stand if the case winds up in a courtroom.

• Make sure that the workplace investigator you select is an experienced investigator who can engage with people, create trust and make it possible for everyone to tell their story fully; Interviewing skills are different from the skills required to take a deposition or cross-examine a witness.

• The time to conduct a workplace investigation can be hard to predict so the investigator must have available the hours necessary to do a thorough investigation and deliver it expeditiously.

• Satisfy yourself that the workplace investigator can deliver a complete, accurate and readable report.

Call me at 727-822-0357 to discuss how to design a workplace investigation best suited to your client’s situation.

CONNECTING THE INVESTIGATIVE DOTS

The number of employment related claims continues to soar. They represent an important and unavoidable fact-of-life for employers and their lawyers.

This email is an advertisement to let you know that I conduct sensitive internal investigations for employers facing allegations of: discrimination based on age, race, disability, religion, national origin, gender and genetics, disability accommodations issues, claims of harassment and retaliation as well as whistleblower claims.

I have decades of experience gathering relevant information and then organizing it according to what can be extremely complex legal theories. My work can be relied on to withstand the most rigorous testing, a trial. I have in the past represented employees and employers in these matters and have extensive, relevant trial experience in federal and state courts and federal and state administrative agencies. For the past 2 decades I have been a full-time mediator, arbitrator and impartial investigator.

Employers are responsible for conducting prompt and thorough investigations of complaints made by employees and, where called for, taking appropriate remedial action. An investigation that is poorly executed can itself become a basis for liability; an investigation that is done well provides an important opportunity to manage lability and reduce potential damages. It can also be used to make systemic changes that improve the organization and ensure that the problem does not recur.

The investigator and the investigation report are subject to intense scrutiny to determine if the investigation is legally compliant, free of bias and genuinely independent. As a result, the investigator must be experienced and well trained. To that end, and even after decades of experience, I recently completed the EEOC’s required 32-hour investigator training course.

The investigative file will almost always be sought by the employee’s lawyer along with the report itself and the investigator will also likely be deposed.

I am available to work closely with defense counsel to provide independent and practical guidance for creating impartial strategies that get claims settled. I create investigative reports that provide decision makers with an informed and complete understanding of the controversy, without straying into giving advice or counsel. All of this is designed to help you effectively and successfully represent your clients.

TIME FOR A “NEW” NORMAL

Now that covid may finally have become a manageable fact of life, lawyers are faced with the task of creating a “new normal” for mediation. It is an opportunity that should take us beyond simply to Zoom or not to Zoom to considering how we can improve the mediation process, all the while remembering what was good about normal and what wasn’t.

Are in-person mediations inherently superior to Zoom mediations?

Many lawyers claim the visceral experience of being physically near others in a mediation allows them insight into the minds of those on the other side. That reminds me of George W. Bush’s famous remark about the deep insight he gained by gazing into the eyes of Vladimir Putin. In fact, once the opening remarks are finished, most lawyers are reluctant to remain in the same room as their counterparts and it is unusual for anyone other than the mediator to urge extending the opening session. The actual value of face-to-face negotiation is the subject of extensive research and the jury is still out, so to speak, on its actual impact on outcomes. https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/

This urge to caucus is common whether the parties are in the same conference room or viewing one another on their laptops. The fact that opening remarks are frequently dominated by adversarial and hostile framing does not help. Mediation has become increasingly routinized: mediator’s opening remarks, plaintiff’s opening remarks, defendant’s opening remarks, then caucus. Mediator’s opening remarks are often perfunctory because they are directed to the lawyers, not the parties. Lawyers frequently caucus and then remain separated for most, if not all, of the mediation. Efforts to keep everyone in the same room so that they can build rapport is seldom successful. Blame for this outcome is often placed on the clients but, in my view, it is more often the responsibility of the lawyers. They are not comfortable or confident negotiating across the table and are the first to bolt for the breakout room. For them, close physical proximity is not seen as adding to their negotiating strategy, such as it is. Instead, it provokes anxiety that the negotiations will spiral out of control because they do not know what their client may say or do.  Thus, clients are sidelined or given very limited opportunity to participate, to talk about how they see the controversy and to suggest what a reasonable outcome might look like to them. The foundational notions of client empowerment and self-determination seem almost naïve when the lawyer exerts strict control over the process. Instead of identifying the actual controversy and working to solve the problem, lawyers engage in debates about what a judge or jury is likely to do.

a wide array of factors to Consider

To make a rational decision about the format, in-person or Zoom, it is important to consider a wide array of factors. Some disputes have involved physical or verbal abuse so that a party may be disadvantaged by having to sit in the same room (or even the same location) with the person perceived as the abuser. In situations like this, Zoom can allow a level of participation that might not otherwise be possible.  Other considerations are easier to evaluate. When participants are an airplane ticket apart, transportation costs, including lodging and meals, can encourage virtual attendance by those who would otherwise not attend or attend by phone. Even when the parties are within driving distance of one and other, traffic and parking can add hours of dead time to a mediation. In some situations, efficient use of time can be critical when time off from work and childcare are considered. The ease with which PowerPoint and other low-cost presentation tools can be used effectively is important. Also valuable is the use of relatively inexpensive high-quality equipment that insures a steady, reliable internet connection, a clear, vivid picture and accurate sound. It is important to keep up with the incredible evolution in 3D, a technology that will be adapted for hearings, depositions, arbitrations and mediations.

Consider the movies. When we watch a movie, we expect to engage with what we see (in two dimensions, for now) and what we hear. We experience a range of strong and complex emotions while we relate to the people we see on the screen. No big surprise there. We should not be surprised that mediating online works as effectively as it does.

WASTE NOT, WANT NOT

It is an old cliché, but I think that it helps make an important point for lawyers to consider in preparing for a mediation. Don’t waste the many contributions your client can make when they take an active role in their mediation.

First, the qualifier or small print. Not everyone is a good negotiator, and that is true for clients and lawyers. But for today’s purposes, let’s focus on clients. Some people hate to have to negotiate about anything. They wish that life was like grocery shopping; who would even consider negotiating the price of bananas at Publix? And yet, they find themselves involved in a lawsuit where a negotiated outcome is, by almost any measure, the best (and only) alternative to a trial.

Inviting your client to partner with you in preparing for their mediation is the first order of business. This initial step is an excellent opportunity to demonstrate the ubiquitousness of negotiating and the importance of team building. Let the mediator’s explanation of mediation be the second time they hear it described. Mediation is an alien experience for many people, one that provokes anxiety and fear. Give them a real world take on what they can expect from you, from the other side and from the mediator. Mediators’ opening remarks often leave much to be desired and you want your client to be prepared. And allow me to digress: a good outcome in a mediation is NOT one in which everyone feels as if they got screwed. Instead, it is an outcome that makes sense; an outcome based on an understanding of the facts (both sides), the law and a thoughtful, realistic assessment of what’s possible. It also involves your client’s ability to put the controversy in perspective from both a short and long view.

 The next step (and this is not an exhaustive matrix) is to understand the controversy - your view, your client’s view and the view of the other side. This gives you a better understanding of the issues in controversy and a way to order them in terms of their importance, both to you and them. You then have a clear idea of your client’s real expectations. That can lead to a conversation with your client about which of their expectations are central, which are not, and, from your perspective, which are attainable (unattainable) and why.  If you or your client need additional information to fully understand the controversy, you can formulate a strategy to get the missing information. This all leads to you and your client walking into the mediation with an agenda.

 The last element for today is the choreography, what are your opening remarks going to cover, what does your client want to say (and how best to say it), and your opening negotiating gambit. It is still, after more than 30 years, astounding to me how often clients show up at a mediation having given no thought to their second ask and seemingly shocked by the first offer. By the time the judge orders mediation or the parties agree to mediate on their own, everyone should know a lot about the case.

 Mediation today is not improv theatre. There was a time in the distant past when lawyers tried cases flying by the seat of their pants. Today, you would not walk into a courtroom without being thoroughly prepared (just ask your malpractice carrier). Mediations require preparation, too.

How Mediation is Like Horse Racing

Mediating a claim in which there is a pending dispositive motion (e.g. Fla.R.Civ.P.1.510, Federal Rule 56 F.R.C.P.)  is seldom a productive use of time and resources. The parties only rarely voluntarily agree to the mediation; instead, judges order cases to mediation, all the while knowing that the mediation is almost certainly going to result in an impasse.

Why do these cases (those with pending dispositive motions) so seldom result in settlements? For the same reason that the betting window closes at Churchill Downs when the horses are behind their starting gates. The bettor  has done her research, evaluated the odds of coming in the money and, feeling all in, wants to see how her horse does. The horse race analogy seems particularly apt to me. Dispositive Motions are time consuming and expensive to prepare. In effect, the bet is down and you have paid for your ticket. There are roughly the same number of opportunities that may come of the motion as there are winning places in the horse race: win = case is gone; place = case is gone but can come back, in altered form; show = parts of case are gone, parts of case can continue.

Here are some suggestions on how to deal with mediating claims that are the subject of dispositive motions:                 

1.     Don’t. Ask that the mediation be postponed until the pending motions have been ruled on. If you are compelled to proceed with the mediation and there is no possible outcome but to wait for a ruling on the motion(s), make that position clear and get your Notice of Impasse without wasting a lot of time and resources 

2.     Talk to opposing counsel about negotiating around the pending motion. In other words, is there a  version of the claim that is likely enough to emerge and can that serve as a plausible basis upon which to negotiate? If not, see #1 above.

3.     Ask the judge to meet with the parties and then ask for guidance based on what has already been filed. In the pre-mediation era, they were called settlement conferences and were characterized by often vigorous judicial arm-twisting. Keeping in mind the spirit of self-determination, a judge can provide analytical insight that can inform a negotiating strategy that might lead to a settlement. 

Litigation is an expensive, time consuming and risky process.  Mediation is a valuable method to avoid litigation but not if it means mediating with an empty chair (the judge) at the negotiating table.

Learn more about my mediation services or read more from my blog at BensonMediation.com.

Agreeing to Disagree

Is there a place in mediation for the idea of agreeing to disagree? The short answer is, no.

In a recent article in The Los Angeles Times, Why I never ‘agree to disagree’ Michael Hirtzik, makes a number of points I think  are relevant to understanding the role of mediators.

Mediators are impartial seekers of objective truth. They stand as a bulwark against illogic and reliance on alternative facts. Many mediators employ the Socratic method to help the parties test the logic of their beliefs. Mediators use questions  that rest on the mediator’s knowledge and his critical thinking skills.  Mediators do not suppose equivalency among competing arguments. Mediators operate from the premise that their questions and the parties answers will reveal one argument to top the other in ways that can be assessed and that lead to a negotiated settlement.   

The methods used by mediators to effect change are difficult to master and require experience, skill and courage. Mediators have no power, real or inferred, to compel anyone to do anything. The only thing they bring to a mediation is a commitment to being unconditionally impartial and helpful. In a sense, the mediators intentions are critical. If the mediator needs to be right, he or she becomes a kind of uninvited party to the negotiation.

Trials do not end with the parties agreeing to disagree. Arguments are won or lost in courtrooms. Trials are designed as a kind of crucible where judges and juries look for facts that reveal the truth. A trial is not a negotiation. Professor Kingsfield of The Paper Chase, would not make a good mediator. https://www.youtube.com/watch?v=FMWn2d6p_f8

In the course of a mediation, it can be a painful and frustrating experience for a lawyer and/or her client to accept the fact that what they thought was a winning argument is, in fact, groundless, fatally flawed or unlikely to prevail. As a result, it takes a particular kind of empathy from a mediator to create opportunities for lawyers and their clients to climb down off the cliff of certainty and begin to acknowledge uncertainty. After all, every mediation starts at an impasse and, if things remain the same at the end of the day as they are at the beginning, the parties will remain at an impasse. In other words, something has to change to make room for the parties to negotiate productively. The mediator is the source of the motive energy that helps create change.

To Zoom or Not to Zoom: A Question

I received this question in connection with a recent mediation and I thought it useful to illuminate some important facts about mediation.

“What are your thoughts on Zoom versus in-person?  I’m primarily a transactional attorney so I’ve only participated in a handful of mediations, however, my hunch is that an in-person may be more effective in forcing a settlement than Zoom…”

Mediation is an occasional event for many lawyers whose practices do not regularly involve litigation. When transactional lawyers deal with controversy, mediation is not necessarily the “go to” way to resolve them. When their negotiations do not yield to rational arguments, many lawyers  are confronted with an empty tool box. Conflicts are then often referred to litigators for resolution based on what I would argue is a false assumption; that the courtroom is the best place to resolve a negotiation that has come to a stalemate.

This “false assumption” is based on a variety of considerations, chief among which is the bias held by many attorneys that strong emotions generated by a stalled negotiation pose a threat to reaching a negotiated settlement.  These negotiators/lawyers have difficulty imagining a successful negotiating strategy that does not suppress emotions even though trying to do so is, in my view, impossible and more likely to result in failure and lasting enmity than in a durable resolution.

Cases involving complex human interactions may be better suited to take place in person. I have in mind tort claims (car crashes, medical malpractice, Title VII, etc.) where the parties are strangers to each other. A computer screen makes it somewhat harder to read the non-verbal cues that we rely on in every negotiation.  That said, with the courts struggling to move trials (bench and jury) online, the pandemic has created an opportunity to innovate and test new approaches that compensate for the differences in the two experiences. In fact, I recently mediated a case involving sexual assault using zoom; there were 5 parties, sensitives issues and extremely complex and nuanced case law and the case resolved.

A surprising counter-point to the circumstances I just described is divorce mediation, where emotions often run hot but the absence of physical proximity online has not been a real impediment to settlement. In fact, it seems to me to be beneficial where the parties have a history of an abusive or coercive relationship or they lack the skill to successfully negotiate their differences face to face.

On the other hand, transactional disputes which play out against a “factual” background and the interpretation/application of contract provisions, case law and statutes, seem to readily lend themselves to online mediation. Both the joint sessions and the caucuses are focused, the presentation of documents and other demonstrative evidence is easy and the time seems to be  used more efficiently than in the typical in-person mediation.

In sum, I do not think that in-person mediation provides an across the board advantage over online mediation except in particular cases. Under the current and unfortunate conditions, online offers a clear advantage - safety for everyone involved. Otherwise, time will tell how we use online mediation when we again have a choice.

Online Mediation in the Age of COVID-19

Many of the reasons for using online mediation in 2020 are unique to the time in which we live. While I began offering online mediation more than a year ago, it was, until very recently, a very hard sell versus conventional, in-person mediation. Were it not for the potentially deadly consequences of sitting next to and across the table from the others involved in a mediation, I would probably not be writing this article.

“As the coronavirus made its rapid and implacable advance across the United States, forcing sweeping closures of schools and work places [and courthouses] and bringing about the disappearance of any type of collective, real-world activity, it became obvious that a new era had begun.” [1] Many of the assumptions pertaining to in-person mediations have never really been tested before our new era began. And replacing face to face human interaction with virtual face to face contact represents a sea change for our justice system. With the passage of time and the accumulation of experience, there will be a sorting out and we will, I think, be left with a revitalized way of mediating disputes. Now seems an ideal time to thoughtfully test our assumptions with the intention of keeping the ones that work and discarding the ones that do not.

Online Mediation actually predates, by years, the novel coronavirus. It was originally thought of as a way of bringing the justice system to citizens who could not get to the place where the rule of law was resident. Online mediation relies on the fact that cell phones are ubiquitous in the world, even for people who struggle to meet the most basic of human needs. With a cell phone and then with smart phones, human rights groups helped develop technology that, for the first time, brought the justice system to the people.

Another incubator for online dispute resolution has been e-commerce. Very early in the development of online companies like eBay and Amazon, they were forced to respond to a volume of disputes with their customers and business partners that would have overwhelmed a conventional customer service operation. As a result, these companies looked to artificial intelligence and other technologies to develop algorithms that could resolve disputes in ways that took into account vast amounts of experience expressed as data, and settled disputes in ways that seemed to human customers fair and reasonable.

In the early 2000’s, Skype entered the online meeting market, followed in short order by Google Hangouts, FaceTime, WhatsApp and others. Believe it or not, Zoom has been around since 2013 and went public only in April, 2019. The corona-virus hit in January, 2020; Zoom went from ten million daily users in December, 2019, to two hundred million daily users in March, 2020.

The first assumption to examine is the need for physical proximity in order to communicate effectively. The beginning of a mediation is typically taken up by the mediator’s explanation of the process and the lawyers’ outlines of their view of the case. So far, there seems little signal loss coming from the use of a computer screen. Speaking only from my experience, the parties typically spend the great majority of the mediation sequestered in their caucus rooms talking privately to the mediator. It is a heavy lift for a mediator to persuade the lawyers to remain in the same room for very long because of their widely shared fear that face-to-face negotiation will spin out of control because what they have to say cannot be communicated without setting the other side’s hair on fire. e.g. “This is my only opportunity to talk directly to you. I may say some things that upset you but don’t take them personally.”

Next, there is the challenge of agreeing on a physical location for the mediation that does not inherently advantage one party over the other. Having the mediation in a lawyer’s office carries with it logistical hurdles, e.g. parties quarantined to a conference room and a bathroom with the other side free to move about while the host lawyer is free to work on other matters during the caucuses. There is also the feeling of vulnerability merely by being in the enemy’s camp.

The Zoom alternative puts the lawyers in a familiar space with ready access to their files and staff. They can employ technology to fortify their negotiating in ways that might be challenging away from their office. They can easily confer privately with their clients, with or without the online mediator. And not to turn this essay into an environmental manifesto, online mediation also cuts down on commuting time, parking, and other issues I’ll leave to Michael Moore.

In the same vein, and as the BBC video illustrates, being home in familiar surroundings can go a long way in humanizing the presenter and reducing clients’ apprehension and unease.

Let’s not assume that litigants are comfortable negotiating across the table from someone with whom they are mired in controversy. For many, mediation is an unfamiliar, stressful and anxiety provoking experience. Physical proximity is not necessarily a plus for everyone.

Further, one of the keystones of mediation is the requirement that the decision maker(s) participate in the negotiation in a meaningful way. In real world mediations, that requirement is often ignored for reasons easily addressed in an online mediation. Many organizations wind up in litigation or other controversies far from home. For now, business travel is dangerous; at another time, it will simply be expensive and time consuming. The rules do not require any more than the decision makers participate and what better way to do that than virtually from their own office.

What is truly unprecedented about this moment we find ourselves in today is the depth and breadth of the changes that have already happened. Current events have created an imperative to recognize and implement improvements to the services we provide, including online mediation. Let’s not waste the opportunity.

[1] https://www.newyorker.com/magazine/2020/04/27/embracing-the-chaotic-side-of-zoom

"He who laughs, lasts." –Mary Pettibone Pool

Although the movie titled The End came out 42 years ago, this scene with Dom DeLuise and Burt Reynolds stayed with me. And after a recent online mediation, it came back to me. I saw myself on the screen of my laptop in one of my favorite shirt and tie combinations; what was not visible was the fact that I was also wearing jeans and a pair of Crocs. Good that we don’t mediate standing up.
 
I hope you, your families and friends are weathering this difficult time with a manageable level of anxiety and worry and some moments of laughter.

It took a global pandemic to show us that face-to-face interaction with our clients, peers, family, and others can be conducted easily, with great humanity, and effectiveness. In fact, telemediation has rocketed from a nicety to a necessity quite literally overnight. Online Mediation can make the logistics of mediation simpler. If getting together is made easier in the first place, there will be more time to actually mediate and fewer obstacles to scheduling a second session, if needed. Time pressure and the reluctance to get together again because of cost (both time and money) are often the cause of impasses. Learn more about my online mediation services here.

Mediation – It Ain't Over 'Til It's Over.

Mediations are like baseball games – no game clock. Both ball games and mediations have average lengths, median lengths and, sometimes, unusual lengths – very short or very long. In baseball, you just keep at it until someone wins because there is no plan B. A mediation, on the other hand, can end because there is a plan B, albeit one in which the winner is decided by a judge/jury and not by players putting runs on the score board, so to speak.

Negotiations require hard work and they take unpredictable lengths of time. And while there are aspects of “game” playing at work in every negotiation, mediations seldom benefit from a game clock. There may be time constraints embedded in the controversy itself but they are different than time constraints on the mediation caused by frustration, impatience, airline reservations or overbooked schedules.

Leave enough flexibility in your schedule so that you, the other side and the mediator have the time it takes to get the case resolved.

Can You Hear Me Now?

Here’s a short – one question - quiz: What is the most important skill that a mediator brings to a mediation? The answer: The willingness and the ability to actually listen. 

 In this political season, we are offered endless, graphic examples of people unable or unwilling to listen to each other. Talking heads are everywhere. In our personal lives, the signs are impossible to ignore; people not making eye contact with you, looking at their “smart” phones while you’re talking (and sometimes while they are talking), interrupting you mid-sentence or answering a question in a way that makes perfectly clear that they did not listen to a word you said. We place a high value on skill at employing technology to communicate, whether it is on TV, a TED talk, a podcast or in a tweet. None of it involves listening. We have far more experience feeling isolated and misunderstood than we do feeling heard and understood. 

 What, then, is it when a mediator actually listens? It is more than just hearing what someone says. In her recent New York Times Opinion Piece, Kate Murphy says that “[I]t (listening) also involves paying attention to how they say it and what they do while they are saying it, in what context, and how what they say resonates within you.”[1]  It is also more than imitating a potted plant while someone else is talking. Again, to Kate Murphy’s essay: “A lot of listening has to do with how you respond – the degree to which you facilitate the clear expression of another person’s thoughts and, in the process, crystalize your own.” [2]

 And that leads, inescapably, to the other critical skill you should expect from a mediator who is a good listener – the willingness and ability to ask good questions. If a mediator sees his or her role as getting the case settled then the questions will be designed to support and advance the mediator’s view of the case. If, on the other hand, the mediator is actually curious about what he has heard after engaging with and listening to the parties, then the questions will not have “the hidden agenda of fixing, saving, advising, convincing or correcting.”[3] A mediator who listens is also less likely to assume that he or she already knows what the other person is going to say. In fact, a mediator who is an attentive listener often receives more information, relevant details and elaboration from the mediation participants than by asking pointed questions. That information and those details are the building blocks for a successful mediation. 

[1]Murphy, Kate. “Lessons in the Lost Art of Listening.” The New York Times, January 12, 20020 www.nytimes.com/2020/01/09/opinion/listening-tips.html

[2]Ibid.

[3]Ibid. 

The Times They Are a Changin' for the Law Business

Just as Bob Dylan wrote in 1963, the times are indeed a changin' — for the law business. While the legal system continues to move (ahead) methodically and deliberately (the wheels of justice do, indeed, move slowly), the business of making a living as a lawyer is in the midst of a sea change. The profession faces competition from sources that were unimaginable not so long ago e.g., outsourcing legal research, document review, document preparation, etc. Clients make demands for economies that are impossible to realize without the use of technology. And then there is the looming impact of AI. At the heart of these changes is the ability to apply technology in ways that actually improve access to, the delivery of and the quality of affordable legal services.

Among the many changes in the practice of law is the use of online technology. The initial impetus behind the use of the internet was to make the rule of law available to people who previously had no access to a judicial system. The ubiquity of smart phones was key to making courts available to countless millions of people all over the world. From that original motivation has come a burgeoning use of online video for hearings, depositions, negotiations, arbitrations and mediations.

I recently mediated several claims, including multi-party matters, online. The conventional mechanics of a mediation transition to online seamlessly. There are now 2 generations of lawyers who grew up with smart phones, the ubiquitous presence of computers and the skill to use them. For them, facetime is an unremarkable fact of life. The only question posed to me about mediating online has been whether there is a measurable loss of efficacy. In other words, was the virtual experience of negotiating across the table a satisfactory substitute for the in-person version. My experience, the party’s feedback and the insights of others published in a variety of sources is, not much. (www.pon.harvard.edu/daily/mediation/dispute-resolution-using-online-mediation/)

In fact, to many, the difference between online and in-person did not register as an issue at all. As I have said before, online mediation is an inadequate alternative in some kinds of disputes. But the vast majority of claims can be successfully mediated without leaving your office.

Please don’t hesitate to call or email me if you have any questions about the process or a particular case.

"Revive All the Lawyers"

Jennifer Senior, in her review of Preet Baharara’s new book, Doing Justice, A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law highlights what she calls his inspired and slightly perverse idea about how to salvage public discourse in 2019: We should take our cues from American criminal trials, in which both parties are obliged to consider flaws in their own arguments and understand the mind-set of the other side. Assertions must be evidence based; research must be rigorous; decorum is paramount. “You can’t call your adversary a ‘low-I.Q. person’” he notes. “You can’t argue the prosecution is political; and you can’t make sweeping biased statements.” And Senior suggests that the first thing we do to turn things around is “revive all the lawyers.” Indeed! www.nytimes.com/2019/03/22/books/review/preet-bharara-doing-justice.html

It should be no surprise that it was easy for me to relate Baharara’s views to mediation. A willingness to critically examine one’s own reasoning and logic, a commitment to civility and respect for others and the ability to listen with the aim to understand are not fuzzy or naïve ideas; instead, they are at the heart of any effective system designed to resolve conflict.

THINKING OUTSIDE THE BOX: ONLINE MEDIATION IN 2019

It goes by a variety of names, Online Dispute Resolution (ODR), eMediation or Online Mediation. Regardless of what you call it, Online Mediation is an innovative and efficient alternative to the conventional in-person mediation.

Online Mediation was first developed to make the justice system available to people who, for a multitude of reasons, could not readily access it. Now, however, online technology can make our evolved mediation system more flexible and adaptable to the way mediation is actually used here in Florida.

ADVANTAGES

· No travel time or expense

· The technology emulates an in-person mediation

· Well suited if parties, lawyers or decision makers are geographically remote

Online Mediation can make the logistics of mediation simpler. If getting together is made easier in the first place, there will be more time to actually mediate and fewer obstacles to scheduling a second session, if needed. Time pressure and the reluctance to get together again because of cost (both time and money) are often the cause of impasses.

Online Mediation can lower the cost of mediation. Those costs may include travel time, transportation and accommodation costs, parking, etc. for both the lawyers, their clients and other decision makers. The technology emulates an in-person mediation (private caucuses, confidentiality, document sharing, preparation and execution) but, obviously, it lacks personal interaction, something that only comes from physical proximity. I think, however, that online ways of communicating hold promise, if we use them thoughtfully and appropriately.

Online Mediation is not for everybody or every situation. Please contact me to discuss whether Online Mediation is the appropriate ADR format for your case.

https://www.pon.harvard.edu/daily/win-win-daily/videoconferencing-a-win-win-negotiation-strategy/?utm_source=WhatCountsEmail&utm_medium=daily&utm_date=2018-12-10-13-30-00&mqsc=E4012382

ARE WE HARDWIRED TO DELUDE OURSELVES?

Those who study cognitive bias seem to think so. They disagree on whether we can do much about it.[1] The question and the answers are at the heart of mediation.

Most of us have seen this before, the Muller-Lyer illusion. Because of the direction of the arrows at the ends of the lines, the bottom segment appears shorter than top segment, even though they are the same length. And even after the lines are confirmed to be the same length and the neurological basis of the illusion has been explained to us, we still perceive one line to be shorter than the other.

While familiarity with the illusion or academic training in logic and reasoning can be a cue not to trust our brain’s hard-wired response to it, it is not so easy in the real world. In the midst of a lawsuit or a divorce, when we are forced to deal with complicated and fast moving situations that require critical thinking and have serious consequences if we make the wrong decision, it can be almost impossible.

Even common sense approaches to problems often produce errors in judgment and self-defeating actions. There are smarter and less smart ways of solving them. People’s reasoning, when it is compared to scientific, statistical and logical standards, reveals large classes of decision making to be systematically mistaken. Inferences frequently violate principles of statistics, economics, logic and basic methodology. See Nisbett, Richard E.(2015) Mindware: Critical Thinking for the Information Age, Farrar, Straus and Giroux New York, N.Y. also,

http://ww.mooc-list.com/course/mindware-critical-thinking-information-age-coursera

Experience has convinced me that critical thinking does not come naturally to many people and that it is not a skill that many have a strong interest in developing. To make matters worse, anxiety, stress, anger and fear that plague the people involved in lawsuits, further diminishes their ability to avoid the consequences of flawed reasoning.

This is the stark challenge facing mediators in many cases; figuring out ways to point out to people their fractured logic, unreason, cognitive illusions, ineffective communication skills, etc. while revealing to them possible adjustments in their thinking that might help get them what they want (even when they are not at all clear what that is). All of this is done in ways that make any insights they gain seem to be their own and without making them feel like they are being scolded or told what to do.

Fortunately for me, I have always been fascinated by the question why do people behave as they do? Mediating, while daunting, frustrating and sometimes unsuccessful, has always been worth the effort. It is the most interesting and rewarding work I have ever done.

[1] Yagoda, Ben “Your Lying Mind.” The Atlantic September, 2018: 72-80. www.theatlantic.com/magazine/archive/2018/09/cognitive-bias/565775/