Winning Without War: Preparing Clients for Mediation (especially over Zoom)

Each month, I see the same pattern: clients who are well-prepared walk into mediation with confidence and clarity. Those who aren’t? They react emotionally, get distracted, or dig in their heels. As a mediator, I’ve learned that the single biggest predictor of a successful outcome is how well the lawyer has prepared their client for the mediation.

In today’s world, that includes preparing for a mediation to happen over Zoom. While the digital format offers convenience and efficiency, it also presents unique challenges. Clients need to be briefed on how to join the Zoom meeting, what they are going to see on their screen, how breakout rooms work, when to mute themselves, and how to stay visually engaged—because yes, body language still matters on camera. The mediator’s opening remarks are, in my view, a critically important first step in the mediation; they should not, however, be the first time your client hears about what mediation is all about.

Before the session, walk your client through the technology and conduct a mock Zoom call if needed. Explain how the mediator will manage the flow, when they’ll be brought in and out of discussions, and the importance of staying focused even while waiting in a virtual room.

And don’t skip the mindset piece: help the client understand that compromise isn’t surrender — it’s strategy. Set realistic expectations about what “winning” might look like and encourage flexibility without abandoning core goals.

Finally, take time to humanize the experience. Just because it’s on a screen doesn’t mean it’s not personal and anxiety producing. A calm, prepared client on Zoom is just as powerful—and sometimes more so—than one in a conference room. Help them show up like it matters, because it does.

These essays are part of my newsletter series, offering real-world insights into how attorneys can elevate their practice and improve outcomes in mediation.

Creative Solutions: The Real Art of Mediation

Courtrooms have rules. Mediation has possibilities. One of the things I like most about my work as a mediator is helping lawyers break out of the black-and-white, win-lose world of litigation and explore client-specific resolutions. The point is this: when you treat mediation as an opportunity for creative problem-solving—not just a legal contest—your clients can benefit.

The law may define the starting point, but it doesn’t have to define the ending. Some of the most satisfying resolutions I’ve seen were shaped by the parties themselves—and couldn’t have been ordered by a judge. Think about what your client truly needs, not just what they’re entitled to.

Use the mediation process to test ideas. Float a concept first through the mediator to gauge its receptivity. Consider edits to ensure that the other side can, at the very least, hear what you have to say. Reframe a concession as a trade-off. Package a settlement in a way that preserves dignity. Mediation is flexible—use that to your client’s advantage.

When attorneys embrace creativity in mediation, they often unlock paths to resolution that no one saw coming. That’s when the process does more than settle a case—it solves a problem.

These essays are part of my newsletter series, offering real-world insights into how attorneys can elevate their practice and improve outcomes in mediation.

Knowing When It’s Smart to Walk Away from the Table

Yes, I’m a mediator. I’m much happier when a case settles than when it ends in an impasse. But I also respect when a lawyer knows when it’s time to stop negotiating. Settlement isn’t always the right call—and forcing one can do more harm than good.

There are moments when the offer on the table doesn’t reflect the facts or the risk — and your client knows it. The real skill lies in walking away without burning the bridge. Preserve professionalism. Thank the mediator. Leave a record that shows good faith and strategic clarity.

A well-timed walkaway isn’t a failure; it’s a recalibration. Sometimes, stepping back reopens dialogue later—when emotions cool, facts settle and become clearer, or leverage shifts. Mediation often reveals unexpected weaknesses in your client’s position. Giving them some time to assimilate and process this new information can be critical in resetting the negotiations.

From my chair, I appreciate when lawyers can help their clients separate pride from pragmatism. Walking away shouldn’t feel like defeat. If done with the right posture, it gives your client strength and confidence in future negotiations…or in court.

Keep the tone respectful. Leave doors open. And trust your read of the moment. Mediation is a powerful tool—but it’s not magic. Knowing when to pause the process can be just as powerful as closing the deal.

These essays are part of my newsletter series, offering real-world insights into how attorneys can elevate their practice and improve outcomes in mediation.

The Mediation Statement: Your First and Best Opportunity to Influence

Mediation statements are not required but they can be an important tool for you to help the mediator help you. I can often tell right away how the day will go just by reading the mediation statements. Some lawyers write to win an argument; others write to open a conversation. The latter get more done.

The best “briefs” I read tell a clear story, identify the roadblocks, and propose a path forward. They don't just assert the law—they highlight what the client needs. When you speak directly to the mediator, not just the other side, you invite collaboration instead of conflict. And that can make all the difference before even sitting down at the (virtual) table.

Think of your mediation brief as a way to prime the environment for a settlement. Focus on the tone as much as the content—adversarial language can harden positions before the conversation even begins. Instead, lead with clarity, honesty, and a desire to problem solve.

It’s also helpful to include a summary of any prior settlement discussions, including money proposals, even if they were vague, a realistic valuation of the case, and your client’s emotional investment. There is little to gain by ignoring weaknesses or vulnerabilities. These elements give the mediator realistic context and help him tailor his approach.

A great mediation statement isn’t long. It’s persuasive. It doesn’t just recite; it creates context. Use this early opportunity to shape the narrative, clarify your client’s goals, and signal your willingness to work toward a solution. It will pay off.

These essays are part of my newsletter series, offering real-world insights into how attorneys can elevate their practice and improve outcomes in mediation.

Agreeing to Disagree in Mediation

Is there a place in mediation for the concept 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 her 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 affect 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 mediator’s 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 as evidenced by this video.

In 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 must change to make room for the parties to negotiate productively. The mediator is the source of the motivating energy that helps create change.

These essays are part of my newsletter series, offering real-world insights into how attorneys can elevate their practice and improve outcomes in mediation.

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.