Five to Tango

UntitledSummer is always a busy time for CLE seminars, especially on the Arkansas side of the muddy Mississippi since June 30 is the end of the CLE year there.  Even though it blocks more days on my calendar and I don’t get paid for doing so, I always accept when I’m asked to speak at these events because it allows me to (1) see old friends and former colleagues; (2) remind those friends and colleagues that I’m still alive and kicking; and, (3) educate (hopefully) those friends and colleagues on the finer points of mediation.

During a two week period in June I spoke at the Arkansas Bar Association Annual Meeting in Hot Springs (in the dreaded “death slot”, late Saturday morning the last day of the meeting), as well as “last chance” seminars in Fayetteville, Little Rock and Jonesboro.  Aside from cutting into my billable hours and depreciating my vehicle at an alarming rate, I think I’ve managed to satisfy the three reasons for speaking I described.

Speaking in front of crowds has never bothered me.  I’ve known attorneys who steered clear of a career in litigation because courtrooms in general and juries in particular intimidated them.  To me, that has always been the fun part of the profession.  Same thing with speaking at seminars.  If given an hour to speak, the time seems to fly by and I’ve never been left with time on the clock and nothing to say.

One thing I always keep in mind is that I can’t just give the same talk over and over.  The material needs to be fresh, topical and with sufficient entertainment value to hold an audience’s attention.  Because of this, I will often pull out my materials and update them so that someone who may have heard me speak last year in Little Rock won’t hear the exact same thing this year in Memphis.  My recent efforts to update my mediation presentation resulted in this month’s article.

Who knows where the expression, “It takes two to tango” originated?  I don’t.  But I do know that whenever you hear it, the person who says it isn’t talking about dancing.  The subject is usually hanky-panky; specifically, a discovered affair that results in the two participants blaming each other for the tryst.  Excuses and attempts to deflect blame for these indiscretions almost always fall on deaf ears, because any reasonable person knows that, “it takes two to tango.”  Stated another way, if one of the guilty parties hadn’t felt like tangoing, it wouldn’t have happened.

Well . . . in a typical two-party mediation, it takes five to tango.  If one of the five shows up with the wrong attitude, the tango doesn’t happen.  Instead, the parties are left on the sidelines, never getting an opportunity to enjoy the dance.  And when you consider the time and money invested in getting to the dance in the first place, it’s a shame when all you get to do is hum along with the music.

Who are these five that are indispensable to the process of tangoing?  Isn’t it obvious?  The two parties, the two attorneys, and the mediator.  If it’s a three-party case, it takes seven to tango.  If it’s a four-party case, well, you get the idea.  Let’s examine what each participant needs to bring to the dance floor.

The Parties

The parties to a dispute, especially plaintiffs, normally don’t have a clue what mediation is until they are educated on the process by their attorney.  They are the novice dancers.  Perhaps they signed up for dance class because they needed a final credit to graduate (not that I would know anything about that…).  Whether they succeed will depend almost entirely on how well they are prepared to tango.  To be adequately prepared, they must approach the tango with the proper frame of mind.

For a successful mediation, the parties must come to the session knowing the following:

– Mediation is not the trial, or a hearing, or an arbitration.  It’s informal and the goal is not to win, but to resolve the dispute through compromise.

– The mediator is not a judge, or a jury, or an arbitrator.  He or she is a  neutral third party who will help the parties explore the wonderful world of compromise.

– The goal is not the party’s best day in court; it is satisfactory resolution.

– An open mind is essential, as positions on issues may need to be reevaluated during the course of the day.

Understand these things, and the parties will be ready to tango.

The Attorneys

Just as important to the tango as the parties are the attorneys.  Think of the attorneys as the parties’ dance instructors.  A poor instructor will leave a dancer with bad rhythm, awful footwork and toes getting stepped on to the point of bruising.  With instruction like that, it’s no wonder the parties inevitably lose faith in the process and go home without a settlement.

On the other hand, a good instructor instills confidence in the students and keeps them engaged in the process of learning the tango.  He is an encourager, not a critic.  And his students almost always enjoy their tango, feeling enriched and fulfilled after the dance.

What makes an attorney a good tango instructor, an asset to his students and not a liability?  Among the many traits are the following:

 – Know your case.  Be educated on the law and the facts, and have a  reasonable idea of the case’s value.

– Don’t undermine the mediator.  Engage in spirited debate when necessary, but keep in mind that he is trying to help your client.  Back him up as he converses with your client.

 – Never grandstand in front of your client.  Puffing and being filled with righteous indignation may score points with a jury, but it doesn’t help the mediator who’s trying to broker a settlement.

– Be receptive when the mediator points out weaknesses in your client’s case, and counsel your client accordingly.

The attorney who understands his role and follows it consistently during a mediation will inevitably leave with a satisfied client.  Rather than hindering the process, he has helped it.  He has prepared his student to tango.

The Mediator

Imagine having an intense desire to tango and being prepared by the best tango instructor in the city.  You go to the New Year’s Eve gala, wearing your flashiest clothes and your new dancing shoes.  You wait until the moment comes to hit the floor . . . and the owner of the facility turns out the lights and tells everyone it’s time to go home.  All that preparation; all for naught.

The mediator is the gatekeeper of the process.  It is not his job to negotiate for the parties, or to tell them what they should do.  It’s not his job to tell them when they are right or wrong.  The mediator’s job is to provide the most advantageous forum possible for the resolution of the dispute.  He helps the parties get off on the right foot.  He encourages them throughout the day.  He does what he can to sustain the momentum that the parties have created.  He facilitates, persistently.

Just like parties and attorneys, the mediator can have a bad day.  When that happens, if the parties settle it is probably in spite of the mediator and not because of him.  That’s a scary thought, particularly since the mediator is being paid for his efforts.  More times than not, when the mediator has a bad day he goes home knowing that he missed an opportunity to help the parties settle.  That should never happen.  Sometimes it means leaving the lights on until the wee hours of the morning, but that’s part of his job.  He must leave those lights on, leave the music on, keep the floor swept, and provide the nicest dance floor he possibly can.

When it comes to mediation, it truly takes five to tango.  With all five working in concert, they will make beautiful music together and let’s face it:  that’s why we tango in the first place.  No one wants to pay for the privilege to tango, only to go home with a dance card that didn’t get punched.

Jimmy Lawson

Grace Under Pressure…and Class in the Aftermath

I have had a life-long love affair with golf.  For anyone who has ever played a round or two with me, that may come as a surprise.  To put it bluntly, I’m awful.  I once went to a teaching pro looking for help with my swing.  After ten minutes of observing me on the range the pro told me his advice would be to take two weeks off, then give up the game.

Okay, so that’s an old joke and didn’t really happen, but it’s an accurate description of my golfing ability (or lack thereof).  Nevertheless, I am passionate about the game.  Unlike so many other individual sports, it simply cannot be mastered.  It’s maddening, but all it takes is one great shot out of the hundred or so hit during a round to give you hope and a reason to come back for more.

Aside from college football, golf is my favorite sport to watch on television.  Just a few weeks ago it was time for that “tradition unlike any other … the Masters!”  I’ll admit that televised golf isn’t everyone’s cup of tea, but I do know quite a few people who care nothing about golf yet enjoy watching the Masters.  First, it’s the course itself.  Augusta National Golf Club is the Rembrandt of golf courses.  It is stunning on television and I’ve been told that it’s so much more beautiful in person.  Second, the tournament is always great theater.  Simply put, you don’t have to be a golf fan to get pulled into the drama of Sunday afternoon at the Masters.

This year promised to be a memorable viewing experience.  Tiger Woods is no longer a dominant figure in the world of professional golf, and he has been replaced by a bevy of young golfers who are supremely talented and exciting to watch.  They go by names like Jordan Spieth, Jason Day, Rory McIlroy and Rickie Fowler.  They are all in their twenties, all seem like genuinely nice people, and all have had moments over the past couple of years that leave fans shaking their heads in amazement.  Yes, the 2016 Masters was going to be an exciting one for sure.

And it was, but not in a way that anyone might have predicted.  Jordan Spieth, the 22 year old Texan who had won the tournament the year before, battled the wind, the golf course and the pressure better than anyone else for 63 holes, meaning he led the field by a whopping five strokes with only nine holes left to play.  But true to the old adage that “the Masters doesn’t really begin until  the back nine on Sunday,” something unimaginable happened.  Spieth, who has been almost universally praised for his composure and his mental toughness, had a meltdown.  Over the course of three holes (or about half an hour in real time), his five stroke lead became a three shot deficit, thanks to some poor play and even poorer decision making.  Simply put, it was a train wreck.  Everyone was shell-shocked, no one more so than Spieth himself.  His crash-and-burn moment was spectacular in its magnitude, played out on the grandest stage of them all, with millions of viewers worldwide witnessing it as it happened.  In the end, he had gift-wrapped the championship for a little-known Englishman named Danny Willett, who will forever be a footnote to the story of this year’s tournament.  No, the real story was the collapse of Jordan Spieth, done in by sending two consecutive balls to a watery grave in Rae’s Creek on the short par three 12th hole.

For many casual golf fans, the story ends there.  Spieth “choked” away his chance at history.  He succumbed to the pressure and let nerves get the better of him.  But I will submit that there is much more to the story than this.  While it did nothing to change the outcome of the tournament, the story continued long after the final putt dropped into the cup on the 18th hole.

For more than a decade Tiger Woods set the bar low when it came to post-round conduct.  Golf fans were subjected to his guarded press conferences, his curt, canned responses to questions and his air of superiority in his many moments of success.  In the face of his occasional failures, however, we usually heard nothing, as he would often high-tail it out of town without a word.  This is not an indictment of Woods, as it is not always a pleasant task to face the music and respond to all of the second guessing with class.  But it is what we came to expect from Woods and others who came up short when it mattered most.  In a solitary sport like golf, I guess sometimes it’s just easier to go home and lick your wounds without dealing with the press and the public.

The defeat suffered by Jordan Spieth at this year’s Masters was as crushing a loss as has ever been witnessed on a golf course.  Some are calling it the biggest collapse in the tournament’s history.  When Spieth walked off the course, he had that deer-in-the-headlights look about him.  Eyes red and watery, he wandered off the course to deal with his emotions.  And then, something surprising happened.  He emerged for an interview with one of the CBS analysts.  He answered every question.  He tried to make sense of it all.  He made no excuses.  He congratulated the winner.  And he spoke from his heart, wearing his emotions on his sleeve and sharing them with the world.  And then, possibly harder still, he forced a smile as he fulfilled his duty to place the green jacket, symbolic of a Masters victory, around the shoulders of Danny Willett.  Not once, but twice, Spieth played the part of the congratulating former champion, doing his best to allow the new champion to bask in the glory of his victory.  What Jordan Spieth did in the hour after he finished play was so much more impressive than anything anyone had done on the course that day.  He displayed grace under pressure when he did not have to, and class in the aftermath of one of the most crushing defeats in the game’s long history.

I’ve heard it said that your reputation is what other people think you are, while your character is what you really are.   Before this year’s Masters, Jordan Spieth already had a spotless reputation.  Now people have gotten a glimpse at his character.

So many in our profession — myself included — could take a lesson from Jordan Spieth.  We should be humble in our successes and forthcoming in our defeats.  We should always extend a hand of congratulations when our opponent gets the better of us.  We should never pout, point fingers or make excuses.  Instead, we should own up to our mistakes and vow to work harder so that the outcome may be different the next time.  The prize may not be a green jacket, but it will be the respect of our peers, and in my book that’s worth far more than any silly golf tournament.

Jimmy Lawson

 jim lawson

Faster than a Speeding Bullet…

     On my drive to Knoxville one Wednesday afternoon in February, I was eagerly anticipating the mediation in which I would participate the following day. It’s not often nowadays that I get to see another mediator in action, but this would be an opportunity. I represented a party in a five party case, and I was going to see how this mediator – who had come highly recommended by opposing counsel – conducted his business. We mediators are not all alike, going about our business in vastly different ways. Through the years I’ve observed many and have incorporated bits and pieces from quite a few to develop the style with which I’m comfortable. The next day’s mediation would be another opportunity to learn from someone else.

     Fast forward twenty-four hours. As I drove back home, with my client’s settlement in pocket, something was gnawing at me like a pet store poodle. Oh, it had nothing to do with the terms of the settlement – I had traveled to Knoxville with strict instructions and the settlement was well within the parameters of the authority I had. Rather, I was bothered by the way the mediation had been conducted, from start to finish. The Cliffs Notes version: We arrived, we settled, we left. The Jimmy’s Notes version: I’m not really sure what happened.

     The mediation was held at the office of plaintiff’s counsel. I represented an intervening party with a financial interest that was separate from the plaintiff’s. There were three defendants, each pointing a finger at the other two. There was no opening session; instead I was whisked into an unoccupied office and told that I would be consulted as necessary. We began at about 9:15 a.m. Two hours later I had a strong sense that we were going to settle. Then things slowed down a bit. Shortly after noon the door opened and the mediator entered my room. Paraphrasing, he said, “Okay, this is what you need to do. You’re going to lower your last demand by $xxx, and I’m going to go back and get $xxx from this defendant and $xxx from that defendant. That’ll be enough for you, right?” I think it actually threw him for a loop when I responded, “No. That’s not what I want to do.” We then had a hurried discussion during which it became apparent the mediator was getting nervous. When he left the room without a smile to convey my response to the others, he said, “We need to wrap this up soon. I’ve got another mediation that’s supposed to start in an hour across town.”

     We settled, but not because of time pressure (at least not from my room). The terms were literally scribbled on a piece of notebook paper and the mediator was gone before the ink was dry, apparently hoofing it to his afternoon mediation. Since everybody agreed to settle, everybody should have been happy, right? Well, I wasn’t.

     Some mediations are easy (relatively speaking). Some can be wrapped up quickly and inexpensively. But some can’t. It’s been my experience that most don’t even get serious until afternoon. Many look hopeless at 3:00 and ultimately settle after 5:00. It’s just the nature of the beast, and there is no way to know in advance how quickly – or how slowly – the negotiations are going to unfold. I’ve visited with many mediators across the country who regularly schedule two or three mediations on a single day. I’m sure most are terrific mediators who get great results, but this scheduling practice inevitably leads to rushing, which leads to undue pressure, which may lead to concluding before the parties can reach agreeable terms or, worse yet, settling on terms that the parties regret after the fact. It’s a bad practice; one I don’t plan on ever adopting.

     Opening sessions are critical, in my opinion. When the mediator dispenses with an opening session, he bypasses the opportunity to lay the ground rules for the parties. He misses the chance to establish a comfort level with the parties at the outset. He fails in his obligation to answer any questions the parties have about the process and to allow them to make any opening statements they may wish to make. Perhaps most importantly, he leaves open the possibility that one or more parties feel left in the dark about things, beginning the day on a bad note and maybe even fostering distrust in a party.

     My remarks during the joint opening session always include the following:  We are not going to waste time today. We will focus on what can be done to settle this case and we will keep the focus there. Conversely, if we are making progress, we will use as much time as we need to see if you can reach an agreement. If we reach an impasse and everyone agrees there is no point in continuing, and if we’ve exhausted all reasonable possibilities, we will conclude the mediation and go home. But if there is still reason for optimism, we will keep working and we won’t let the clock dictate the result.

     As I drove through the hills on my way home, I wondered how many times this particular mediator had seen a mediation derailed because he had to leave so he wouldn’t be late for the next one. I was thankful we had been able to settle our claim on satisfactory terms, but I realized we had been very close to missing the opportunity to do so for no reason other than the time of day.

     So I did learn something after all. I learned that I like my way of doing things better than his. You see, mediation does not have to move at the pace of a three-legged turtle, but it also shouldn’t be conducted by the Roadrunner. If you fall into that Acme trap, you may wind up getting burned.

Jimmy Lawson

jimlawson

The Lost Art of Conversation

Federal Express has run a television ad recently that features a fictional department supervisor who delivers good news to his employees in person and bad news to them by text.  It’s a humorous commercial, but every time I see it I think of all the ways that technology has eroded the skills of conversation and personal interaction.

Conversation can be hard, especially when the subject is unpleasant or at least has the potential to end up there.  For those that favor stealth and avoidance, innovations such as e-mail, text messaging, twitter and the like have become crutches.  We can be harsh, blunt, rude, condescending and nasty using these methods of conveyance, all without the risk of a face-to-face encounter.

Don’t get me wrong; all of these tools and innovations can greatly increase our work efficiency, but far too often they are used as a replacement for personal interaction, and for all the wrong reasons.  And I’m just as guilty as the next guy.  I sometimes find myself delivering bad news via text instead of calling and handling things the traditional way.  It’s not a hard thing to do in today’s world…..but that doesn’t make it right.  You see, it’s not just the skill of conversing that’s being ignored.  Traits such as integrity and professionalism take a hit as well.   (And yes, I do recognize the irony in the fact that I am e-mailing this message to folks…)

Over the past few months, I’ve noticed a couple of things that are a little discouraging during mediations I’ve conducted.  One is the propensity of some attorneys to resort to texting their clients rather than calling them for instructions when those clients are not physically present at the session.  The other is the detached client that sits in the corner of the room, e-mailing, texting or surfing on his or her phone while the rest of us are trying to make progress toward a settlement.  In both of these situations, I’ve done my best to politely steer the focus back to the issues at hand, but I’m concerned what I’ve witnessed is a trend in today’s society.  Most people would rather check Facebook, view Instagram photos, participate in group chats, or do just about anything their smart phones will allow them to do than to have a real conversation with someone in person.

Just as a deposition is more valuable than an affidavit, a video deposition is better than an oral deposition, and live testimony in the courtroom is better than a video deposition, an engaged, conversant participant in a mediation has a greater chance of success than a participant who is physically absent or mentally checked out.  So much can be conveyed when a conversation is held – not just by way of the words used, but by body language, eye focus, expressions, attitude, gestures, and level of calmness.  Smart phones and computers don’t give you that; personal interaction does.  When trying to settle a case in mediation, sincere personal interaction and engagement are crucial to the process.

In December I spent eight days in Guatemala and I intentionally left my iphone at home.  I cannot begin to describe how wonderful it was to have clear focus on what I was doing, without the possibility of being distracted by phone calls, texts, e-mails or the internet.  For over a week all of my interaction with the human race was in person, and it was so refreshing.  I didn’t even know who won bowl games or NFL games during that time, and it didn’t phase me a bit.

I hope we aren’t headed toward an age when all meetings, conferences, trials and assemblies are held remotely.  When I consider the damage such an age would do to personal relationships, I am reminded of another television commercial from probably twenty years ago.  I’m pretty sure it was an investment company (Dean Witter, perhaps?) that ran the ad, and it opened with the company CEO announcing to all his salesmen that one of the firm’s oldest clients had just fired them, citing the lack of personal relationship that now existed between company and client.  The CEO then informed the salesmen that they would all immediately travel to visit person-to-person with each of his or her clients, to reassure them and to reestablish the personal relationships that had been eroding from years of phone messages, e-mails and stealth communications.  One by one, the CEO gave plane tickets to the salesmen and told them who they would be visiting, until everyone but the CEO had an assignment.  A young salesman then asks the CEO, “What about you?  Where are you going?”  The CEO smiled and replied, “Me?  I’m going to go visit our old client who just fired us.”

Don’t avoid tough conversations.  Recognize the value of personal relationships and face-to-face interaction.  When given the choice between pushing a button to send a message and seeking out the person to actually talk to him, choose the latter.  You’ll learn more, and you’ll probably strengthen the relationship.

Jimmy Lawson
Mediator
Hamlin Dispute Resolution, LLC
Memphis, Tennessee and Little Rock, Arkansas
February 2, 2015

Ten Do’s and Don’t’s For A Successful Mediation In Arkansas and Tennessee

Talk to your clients about the mediation process beforehand.   Some clients may have a vague idea of what mediation is all about; many will have no idea at all.  A good mediator will spend some time in the opening session explaining the process to the parties and answering questions posed by the parties about the process, but the chances of a successful day are enhanced if the parties have already been educated on the process by their attorneys.  It only takes a few minutes to do this; it can save hours in the caucus rooms if you will do it.

  1. Make sure your clients have realistic expectations. A plaintiff that has asked for $3.5 million in his Complaint is not going to get $3.5 million by way of a mediation settlement.  Likewise, a defendant in an admitted liability case is not going to walk out of the room with the plaintiff’s agreement to dismiss with prejudice for nothing.  Talk to your clients about the realistic settlement value of their cases so that the inevitably offensive opening offers that are exchanged do not derail the mediation before it even gets going.
  1. Have all the right people present. We all understand that out-of-state insurance adjusters cannot physically attend every mediation for which they are responsible.  Nevertheless, having that person with final settlement authority in the room is invaluable for a variety of reasons.  And, if this is simply not possible, please make every effort to insure that “available by phone” means that the adjuster will truly be available by phone.  Hours can be lost waiting for a return call from an absent party representative, and this benefits no one.
  1. Be upfront about the time we have available. You might be surprised to learn that more than a few mediations are terminated without a settlement because someone essential – usually an attorney – informs everyone at some point during the session that he or she has something scheduled later in the day and has to leave by early afternoon.  If we all know this prior to beginning the mediation, we can adjust the agenda accordingly.  If we don’t know it, we are already starting the session on a bad note.
  1. Let your clients speak. Particularly from the standpoint of the plaintiff, often it makes a world of difference if the party simply gets a chance to get something off of his or her chest.  Venting can be extremely constructive so long as it is controlled.  Neither the attorney nor the mediator should ever cut off a party that wants to speak.  Aside from being a bit rude, it can leave unspoken a salient point that might otherwise bring the parties closer together.
  1. Have an opening offer ready. Another frustration we mediators encounter on occasion is the opening offer standoff.  Generally intended as a show of strength, it is one of the biggest impediments to efficient use of the time we have available.  If one party agrees to make the first offer in mediation, great.  If that party declines, for whatever reason, the other party should take the initiative to get things started.
  1. Don’t grandstand in front of your clients. Your client has faith in you and believes in you; otherwise he wouldn’t have hired you.  There is no need to try to impress your client and inflame emotions with over-exaggerated responses to offers that you deem unacceptable.  All that will do is reinforce your client’s already shaky trust in the process.  It is much more constructive if you remind your clients that the “rules of negotiation” work this way, and that the offer just received is most certainly not the best offer that will ultimately be received.
  1. Be willing to be creative. Almost all disputes are resolved by agreeing to an adequate amount of dollars and cents to compensate the aggrieved party.  Occasionally we run into cases where it is not all about the money.  To some clients, an apology, an affirmation, or a validation are part of what they seek.  Yes, you receive your fee in dollars and not in affirmations, but the case (and its ultimate resolution) belongs to your client.  If the mediator broaches the subject of an apology or something along those lines with your client, indulge him.  It may be a lost opportunity if you don’t.
  1. Preach patience and perseverance. The good mediator will remind your client during the day that he or she should not get discouraged and should stay optimistic regardless of the present situation.  This is only constructive if his urging is seconded by the party’s attorney.
  1. Only mediate if your case is ready for mediation. Some disputes can be effectively mediated before suit is filed; some cannot.  Sometimes a case calls for extensive discovery before an attorney can make an educated recommendation to his client regarding a likely outcome or a settlement value.  One of the most frustrating situations we run into from time to time is the mediation where negotiations go nowhere because the attorneys do not have enough information to justify recommending a settlement to his or her client.  Those same cases may be easily settled a few months down the road, after documents are exchanged and depositions have been taken.  Unfortunately, in that case, the premature mediation is rendered a waste of time and money.

This is by no means an exhaustive list and it is not the product of scholarly research.  It is simply a set of suggestions that, if followed, will improve the experience of going through mediation for the client, the attorney and the mediator.  I hope that you find something of value in this list, and I hope that I get the opportunity to serve as a mediator for you in the future.

Jimmy Lawson
Mediator
Hamlin Dispute Resolution, LLC
Memphis, Tennessee and Little Rock, Arkansas
June 3, 2013

The Disappearing Opening Joint Session In Arkansas and Tennessee

Beware! A Trojan Horse has entered the world of dispute resolution from coast to coast and north to south.  This Trojan Horse is the ever increasing tendency of plaintiff and defense attorneys, claims adjusters, risk managers and company officials to regularly dispense with a joint session at the beginning of a mediation.  Granted, there are mediations occasionally with very difficult personalities, strong emotions, or hurt feelings that dictate dispensing with an opening joint session.  This should by far be the exception not the rule.

Some attorneys and their clients or claims officials are very concerned about offending the opposing party or attorney and also want to avoid “wasting time” in a joint session.  Thus, many people deem it best to start a mediation with private caucuses and spend the entire mediation process in those separate caucuses.  Obviously, the human interaction and dynamics (even if very brief) between the opposing sides is missed.  Most importantly, there will be missed opportunities.

A joint opening session was designed for a modest amount of “meet and greet”, the opportunity for the parties themselves and their counsel to make limited substantive points, and to give parties an initial opportunity to participate in the mediation process.  Unfortunately, in my twenty three years of mediating, I have seen this trend away from the opening joint session get stronger and stronger.  Some of the missed opportunities are the following:

  • A defense attorney, adjuster or defendant apologizing to a grieving family (if appropriate, this can pay big dividends);
  • The defense reassuring the Plaintiff that their group is present with sufficient time and intends to work with the Plaintiff to try to reach a resolution;
  • The Plaintiff and/or family members having the chance to emotionally and substantively have his or her say directly to the defense group;
  • Learning something new or having items clarified by the opposition;
  • Verifying where the previous negotiations ended;
  • Observing the appearance and demeanor of the opposition

I submit to those heading into their next mediation to think long and hard before passing up the opportunities available from a beginning joint session.  Likewise, attorneys should take at least a little time to organize their strategy and thoughts for the comments to be made in the joint session.  The thoughts and strategies should be shared prior to mediation with the client and any claims adjuster.  Also, attorneys should encourage them to at least briefly participate in the remarks in the joint session.  Sometimes clients and adjusters can “score more points”and really help the overall process in a joint session than the attorneys themselves.

In conclusion, don’t miss the opportunities that are available when everyone in a mediation gets together in the same room.  This can set the stage for a successful mediation.  I have witnessed so many good and informative things occur at a beginning joint session.  Give serious thought to your opening comments.  If done appropriately, the chances of upsetting the opposition are very small.  The time spent in the joint session may shorten the length of the mediation.  Rarely, have I ever seen a joint session irreparably “poison the well” for the remainder of the mediation.

 

Frank S. Hamlin
Mediator/Arbitrator
Hamlin Dispute Resolution, LLC
Little Rock, Arkansas and Memphis, Tennessee
October 28, 2015

Dispute Resolution Clauses and Contracts Disputes in Arkansas and Tennessee

Contracts disputes in Arkansas and Tennessee may occur between businesses, individuals, or even businesses and individuals.  These disputes occur when the parties to a contract no longer agree on the nature of its terms.  For example, they may disagree as to what each party’s obligations are, or they may argue over what a term’s definition is.  Regardless, contracts disputes are resolved much sooner when the parties have a dispute resolution clause.  A dispute resolution clause describes how the parties will attempt to resolve their dispute.  For example, the parties may agree in advance that, should a disagreement occur, they will attempt mediation or arbitration before filing a lawsuit over their dispute or go to arbitration in lieu of a lawsuit and a trial in court.

Both mediation and arbitration require the consent of the parties before they may be scheduled.  Therefore, the dispute resolution clause serves as evidence of consent to one or both of these practices.  By the time a disagreement occurs, it is unlikely that the parties will be able to agree as to how they should resolve their conflict.  With a dispute resolution clause, however, the parties know what the next step will be.

Dispute resolution clauses also include additional detail, such as where arbitration or mediation will be held.  With arbitration clauses, the parties may agree in advance as to how many arbitrators will arbitrate the dispute and whether it will be binding or nonbinding.  Additionally, these clauses may provide how the fees of arbitration or mediation will be divided between the parties.

Advantages and Disadvantages of Arbitration in Arkansas and Tennessee

Arbitration is a method of alternative dispute resolution, which means that it gives the parties an opportunity to resolve their case outside of the courtroom.  Before deciding to use this type of alternative dispute resolution, however, the parties should be aware of the advantages and disadvantages of arbitration.

One unique characteristic of arbitration is that, in most cases, the arbitrator’s decision cannot be appealed.  During the hearing, an arbitrator will hear testimony and review evidence submitted by the parties.  After the hearing has concluded, the arbitrator will render a detailed written decision that is binding on the parties.  Unless a legal mistake has been made, or some sort of misconduct occurred, the parties are stuck with this result.  Therefore, arbitration is an excellent choice for parties who want a prompt resolution to their dispute, but it may not be advisable for those who want to maintain some control over the fate of their case.

Arbitration may be scheduled as soon as the parties agree.  Depending on the nature of the case, the parties may have to wait for several months or a year or longer to have a trial date scheduled.  Even after a trial has been scheduled, it may be postponed for a number of reasons, such as the unavailability of witnesses or inclement weather.  Since the arbitrator issues a binding ruling on the parties after the hearing, arbitration offers the parties the benefits of a nonjury trial without as much expense and with less delays.

Construction Mediation in Arkansas and Tennessee

Construction disputes are notoriously complex, expensive, and lengthy.  These disputes may involve dozens of individuals, such as contractors, engineers, subcontractors, property owners, and others who may be impacted by the faulty construction of a building.  In especially advanced construction projects, thousands of documents may need to be carefully studied by attorneys to determine which entity may be liable for construction defects.  Construction mediation in Arkansas and Tennessee provides a faster, more efficient method of resolving these disputes.  During construction mediation in Arkansas and Tennessee, the parties meet with a third party neutral called a mediator to attempt to compromise and resolve their disagreements.

Many construction disputes need to be quickly resolved.  For example, if a condominium building is at the center of a dispute, the tenants in that building may need the repairs completed as quickly as possible.  Rather than wait several years for a trial to resolve the dispute, the homeowners association may agree to mediate the case.  The parties may schedule mediation as soon as they like, which allows them to work out a solution to their case much sooner.  The mediated agreement is incorporated into the settlement, thus finalizing the case months or years earlier than if a trial had become necessary.

Mediation also provides greater flexibility than do courtroom trials.  During mediation, the parties may be as creative as they like as they draft the terms of their agreement.  In contrast, judges may be limited in the orders they issue at the end of a trial.

When Should a Case Go to Mediation in Little Rock AR OR MEMPHIS TN?

Mediation is an excellent resource for those who wish to save money and time while resolving their dispute.  It further takes away the uncertainty of a trial.During mediation, a third party neutral, called a mediator, assists the parties as they negotiate and communicate how they would like to see the case handled.  During mediation, the mediator does not make any decisions for the parties.  Rather, the parties have the power to create their own settlement agreement.

Trials focuses on a “winner” and a “loser.” Mediation, however, focuses on compromise, which contributes to its high rate of success in settling cases.  When the timing for mediation is right, the chances of settlement increase exponentially.

If the parties wait too long to schedule mediation, settlement can become less likely.  As a case progresses, the parties often become frustrated and hardened in their positions.  At this point, settling a case at mediation can be more difficult but certainly not impossible.

A case should go to mediation when the parties have enough information to make an informed decision about a settlement agreement.  Mediation will not benefit the parties if certain documents have not yet been reviewed, or if a key witness has not yet been deposed.  The parties must work diligently to exchange and review the necessary evidence in the case to schedule mediation as soon as possible.

When mediation is scheduled at this point, the parties are more likely to settle.  They are well aware of the facts and legal arguments in the case and are somewhat cooperative and open.