When I was first married I had zero money and a new little family to support. So I did what
we all do. I looked around for a good paying job that could help me get through school.
I’d done construction before and knew it paid well. So I found a brick mason looking for a
hod carrier (or “hoddy”). I didn’t know much about carrying hod, but I thought it would pay the
bills. So I signed up.
My first day wasn’t glamorous. My job consisted of keeping the mason supplied in bricks
and mortar. I did whatever he needed so he could just keep laying bricks. I huffed, I puffed, and
I hustled. He paid me four cents a brick and by the end of the day I had made exactly $16.00.
He apologized to me and said the next day would be better. But by the end of the second day
I had only made another $16.00.
I quickly saw this was going nowhere, so after two and half days I ended my brief career as a
hod carrier.
I learned some important lessons from that job (and others like it). My employers didn’t hire
me for my brains. They weren’t looking for me to solve problems or come up with creative
ideas. They didn’t need a new way to do things. Instead, they were only looking for someone to
do the heavy lifting carrying things back and forth – and they took responsibility for all of the
forward planning, all of the evaluations and all of the strategy. They only wanted me for
unthinking muscle. What they really wanted was a machine that moved quickly, kept up, and
quietly did their bidding.
No surprise here, but carrying hod is a completely different world than serving as an
architect. An architect is like the conductor of a symphony. An architect relies on skill, training
and a sense of vision to carefully organize a thousand – maybe ten thousand – different variables
into a single cohesive, successful outcome. Hire a poor architect and you get a poor result. Hire
a great architect and you’ve taken a major step towards a successful project.
What’s the difference? A hod carrier needs no skill or training – only willingness and a
degree of tenacity. But a successful architect needs not only tenacity but a highly developed set
of skills, training, education and talent.
Some parties seem to want a mediator that primarily presents offers between parties and makes
demands on the other side. To be sure, a good mediator must be able to skillfully present offers.
But frequently there are considerations other than money that might make or break a mediation.
I used to believe that mediations are driven mostly by two main considerations: risk and cost.
But now I know that many – perhaps most – mediations are driven by three factors: risk, cost
and emotion (or principle). Some parties just don’t want to settle if they think the other side is
getting too much – even if they themselves are getting enough. Other parties want respect,
validation or acknowledgment before they are willing to settle.

These “soft” considerations are real, and they can absolutely determine whether or not a mediation fails or succeeds. Discover the parties’ values and views on these “soft” considerations and you may be able to effectively address unspoken considerations that might otherwise derail a mediation.
A perceptive mediator will fully explore all of these “soft” considerations as necessary, and then address them in a way that makes sense in the circumstances. As a practical matter, this sometimes requires a successful mediator to come up with a settlement package that may be different than the Parties expect. Parties and their counsel often disclose their true values or “soft” considerations to a mediator in ways they would never consider disclosing to the other side. This places the mediator in a unique position to be able to craft a tailored resolution that can match the parties’ values. A mediator serving merely as a “hod carrier” in exchanging demands and offers between the parties may never reach this point. But a mediator serving as an “architect” will frequently be able to come up with a solution that may not have been previously considered.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is an attorney, mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at [email protected].

Let’s face it: If you show up right on time at your scheduled mediation expecting your mediation to begin, you may have already missed an opportunity.

Most mediators ask for briefs at least a week in advance of a mediation. These mediation briefs provide the mediator with a key opportunity to “tee up” the case for resolution.  

How so?  When done well, mediation briefs contain a compressed version of the facts along with citations to determinative points of law.  Sometimes the resolution of a case will focus on a key point of law. But many times the most important settlement considerations rest with the facts.  

Not every brief is supported with a hundred pages of exhibits.  And many times a lengthy exhibit set is completely unnecessary. But many briefs describe crucial evidence that isn’t included in an exhibit set.

A mediator serves many functions. One of most important is impartial evaluator.  If one of the parties misapprehends the strength of their opponent’s case, the mediator needs to do some serious “reality checking.”  What better way to do this than by openly and fairly evaluating the documentary evidence or the deposition testimony that supports (or cuts against) a case?

If the parties don’t supply the mediator with key documents in advance of the mediation then a mediator may not have time at the mediation to review and digest these documents.  But if the parties provide evidence to the mediator in advance of the mediation, then the mediator can review, consider, and evaluate it and be prepared on the day of the mediation to pointedly discuss it with the each side.

This raises the following question: When does a mediation actually start?

Many mediations start when counsel and their clients show up at the mediator’s office.  But if the mediator is proactive, the mediation can actually start as soon as the mediation briefs are submitted.  A thoughtful, analytical mediator will carefully review the briefs shortly after receiving them, looking for key issues, legal points, facts or documents that bear further examination.  If the case appears to be centered on key facts or evidence, these mediators can then ask the parties in advance of the mediation to supply copies of this evidence to the mediator.  This evidence allows the mediator to quickly evaluate the strengths and weaknesses of the case.  When the parties show up on the day of the mediation, they won’t be starting from ground zero. Instead, the mediator will be primed and ready to go with a thoughtful evaluation of the case and the critical evidence.  Such a mediator will be fully prepared to discuss with counsel the reasonable likelihood of a judicial determination if the case doesn’t settle – and possibly highlight and underscore even greater incentives for settlement.  A mediator who prepares in this way significantly enhances the likelihood of settling a case at mediation.

Life is busy and law practices are often overwhelming.  But when counsel engage a mediator, they certainly want to provide their briefs at least a week in advance so that the mediator can fully appreciate the strengths of their case.  When counsel do provide briefs well in advance of the “mediation day,” then the mediation doesn’t really commence when these attorneys shake hands with the mediator. These mediations actually start a week beforehand when the briefs are submitted and the mediator first begins to see what the case is all about.

 

Robert B. Jacobs mediates real estate, business and construction law cases throughout California.  Reach him at [email protected].

As a young man I worked many jobs.  Many years ago I became a member of the Iron and Steel Workers Union and I worked on a blast furnace belonging to United States Steel.  I’ve worked as a roughneck in the Wyoming oilfields. I’ve been a rough carpenter on apartment buildings. I’ve driven a 10 wheel dump truck for an excavation company.  I’ve been a small engine mechanic. And I served as a music director for a small theater company in Jackson Hole, Wyoming.

But I never spoke for anyone else until I became a lawyer.

When my kids were young they asked me what I did at work.  I told them I “read a little bit, I write a little bit, and I talk on the phone.  That’s about it.”

Somehow that didn’t seem very satisfying to them.  But it was true.

What I didn’t tell them was that I regularly speak for other people.  In fact, I do it almost every day.

It’s an unusual thing.  All of us talk all day long – and we talk for ourselves.  We read, we write, we talk. We rarely have someone else talk for us – until it comes to legal matters.  When we work with lawyers, we often have people talk for us. A power of attorney let’s someone else speak for us, write for us, and even make decisions for us.  But few of us spend much time working with powers of attorney.

But legal representation – I speak for people everyday.  Sometimes it’s in court. Often it’s on the phone, or through a letter.  I am a warrior. I’m a strategist. A river guide. And a counselor.

If we all speak for ourselves everyday, then why hire a lawyer?  Why not just talk for ourselves?

Because we wouldn’t know what to say.  And we wouldn’t know how to say it. And we want the power that stands behind a lawyer, and the respect that lawyers get. (This is true notwithstanding all of the lawyer jokes.  My son reminds me that in all the world there are only three lawyer jokes and that all the rest are true stories).

Unless we’re a lawyer, or a student of political law and theory, most of us don’t even know our own rights.  We hire someone else (a lawyer) to tell us what they are – and then pursue them for us.

So there are good reasons for paying someone else to speak for us.

What a different world is mediation!  As mediator I deal with lawyers every day.  And when I move between parties, I speak for those lawyers.  What a remarkable thing! Each room has a client – the “real party in interest.”  And most of those clients have lawyers with them – people they pay to speak for them.  But instead of speaking to each others, these lawyers pay a neutral third party – a mediator – to speak for them.  When I speak to the other side, my comments are truly two steps removed from the client.

Why do such a thing?  Why add another layer of cost and complexity to a legal system that’s already far too complex?

Because it works.  Litigation is based on distrust.  Settlement is founded on trust. In order to be effective – and protective – a lawyer must embrace distrust, caution, suspicion.  Otherwise, without adopting these viewpoints a lawyer can easily get blindsided.

Enter the mediator, who is a person without a dog in the fight.  The mediator isn’t tied to either party. The mediator doesn’t really care who wins or who loses; who has a great case and who doesn’t.  The mediator is focused on one thing, really: consensus. Above all else a mediator strives to build consensus.

It’s not easily done.  A mediator must listen and be persuasive.  They must have an understanding heart – and above all they must be patient and respectful.  If a mediator can legitimately and honestly earn the trust of the parties (and their counsel) then a mediator is in a unique position to help the parties check their own realities, review their values and evaluate their priorities.  In short, the mediator can help parties see things in a new light – and this can lead to settlement more quickly than almost anything else.

Could attorneys do this themselves?  Of course. Cases are settled everyday without mediators.  But when emotions are high, or when there’s strong distrust, or when somebody just doesn’t have a good grip on the risks, realities and costs of litigation – then a skillful mediator can speak for the other side and sometimes achieve something that just may not happen otherwise.  

Mediating cases is unusual work.  And the dynamics are fascinating. But it’s effective.

 

Robert B. Jacobs is a mediator in the San Francisco East Bay.  He mediates real estate, business and construction law cases throughout California.

Bias is a reality – we all know it.

Some time ago I attended an evening program for ADR professionals.  Our speaker was not a professional neutral, but she had made it a lifetime pursuit to study power, bias, and unequal bargaining strength.  She lectures all over the world on these topics for the purpose of servicing the needs of the disadvantaged. She holds a Ph.d, and as the evening progressed it was abundantly clear she had spent a lot of hours reading about, thinking about, and analyzing power and bias in human relationships.

She said a lot of things that resonated.  Her program was completely spellbinding. She spoke for only an hour, but of all the classroom instruction I’ve ever had this was clearly some of the most riveting.

What could she possibly say about bias that would be so riveting?  Bias is a reality – we all know it. But many of us – perhaps most of us – actively work to minimize (or eliminate if possible) our own personal bias.

My mother, bless her soul, had many stellar qualities.  But nobody would ever call her timid. She didn’t ride the tides – she made them.  Whenever she put her mind to something, watch out! It was going to happen, and nobody (and nothing) would ever get in her way.  (She told my wife, shortly after we were married, that my wife was the first person who had ever told her “No.” My mother was over 60 years old at the time).  None of my sisters are shy or retiring – I know first hand that women are (or can be) as strong or stronger than any man. I like to think I am completely devoid, in my own life, of gender bias.

The same goes for racial, ethnic, religious, or cultural bias –my life experiences have taught me enough for me to believe I am as unbiased as it’s possible to be.

But this program addressed a different kind of bias.  Our presenter observed that most mediators hold advanced degrees, and that they have more education than the average person.  Our presenter noted (correctly) that oftentimes parties come into mediation from disparate backgrounds. One party may be better funded, with the ability to hire a more experienced or more effective lawyer.  That party may also be more educated, more logical, and more analytical than less educated parties. As a result, a mediator may more readily identify with – and relate to – such a party. If this happens, the mediator may consciously (or subconsciously) defer to the position, requests or proposals of such a party, and thereby effectively afford this party greater “power” in the mediation.  In the words of the presenter “If you aren’t aware of this kind of bias, you may (as a mediator) unconsciously advance the aims and interests of the party with the greater power.” She noted that less educated people often think about things differently than their more educated, financially successful counterparts.

The net result is that a mediator may subtly – and unconsciously – slant a mediation toward the more powerful party.

This was a complete revelation.  It was instantly clear to me that she had identified a potential soft spot in the mediation process.  It may be easy to watch and listen to other people for indicators of their bias – but it’s not so easy to do with our own.  As mediators, we have to listen intently to words and subtle signals as to the values, desires, and preferences of parties and counsel.  If a mediator is biased or predisposed towards a logical, analytical, clear-thinking party, then is that mediator likely to unconsciously advance the interests of that party during the mediation?

On the other hand, should a mediator properly attempt to effect social justice by favoring the interests of a disadvantaged party?  Doing so would offend the concept of the mediator as a “neutral.” Life is unfair, and it is filled with inequality. Parties come into mediation with unequal bargaining power every day.  If a mediator is to be truly “neutral,” then he or she must take the parties as they find them. The mediator’s task definitely does not include any attempt at “social reform” or favoritism within the context of the mediation.

Does this mean that a party who enters a mediation with more power may come out of the mediation with a more powerful result?  Yes. But does that mean that a mediator should indulge a party in every attempt to control, derail or influence a mediation? Not at all.  An aggressive litigator recently told me that the concept of “true” mediation was foreign to them since they always participate in mediation with absolutely no intention of settling their case, but instead always use mediation solely as a vehicle to gather information so that they can “win big” at trial.  Mediators are charged with facilitating consensus between the parties. Every ethical tool, technique and approach can properly be used towards that end. But nothing obligates a mediator to facilitate a fishing expedition if one of the parties is not participating in good faith.

It’s an unending quest.  An effective mediator will collect information about the parties and identify their wants and needs.  And a good mediator will never consciously further any bias of the parties. But every mediator also needs to constantly work at identifying – and managing – their own biases so that they don’t interfere with the mediation process.   

 

Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience in business, real estate, and construction cases. He serves on the mediation panels for the Santa Clara County Superior Court and the Bar Association of San Francisco.  He’s a mediator for the Alameda County Superior Court and a Settlement Mentor for the Contra Costa County Superior Court. He also serves on executive committees for the ADR section of the Alameda County and Contra Costa County Bar Associations. Reach him at [email protected].  

 

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel.

 

I remember going to trial as a young lawyer.  Everything rose in a crescendo to a fevered pitch just before trial.  The logistics, coordination and workup were monumental. After endless preparation, I’d show up at the courthouse ready to do battle.

And then the court would order a continuance.

I didn’t know (at first) that the courts set trial dates months down the road without any idea of how many courtrooms will be available on any given day.  We’d all show up with our witnesses ready to go only to find out that no courtrooms were available. We’d sit around all day and wait for something to break loose (and it often didn’t).  We’d then go back to our office and wait on “trial standby” for a week to see if a courtroom opened up. Our witnesses would cool their heels; our clients would get frustrated; we’d all stay on high alert for a week.  And then we’d get a call that no courtrooms were available and a new trial date would be set several months down the road.

Sound familiar?  Everybody’s been through it.  It’s not an efficient system. It’s like having your carrier overbook an airline flight – except nobody offers you a free ticket when your flight’s been oversold.

Older attorneys would sometimes lament that all they wanted was “a date certain” for trial.   But a master calendar system just doesn’t provide for certain trial dates.

Some counties have switched to using a single judge for all purposes.  In these counties, yours is the only case (or one of a very few case) set for trial in that department on a given date.  That way, you know you’ll go out to trial on the date that’s set (double scheduling still sometimes occur. But these courts usually scramble to find an available courtroom so that the trial date can be honored).  This system avoids some of the master calendar problems. But it may be a long, long time (i.e. over a year) before your assigned date comes up.

How can parties get to trial in a reasonable time without the re-setting problems of a master calendar system?  Binding arbitration is always a possibility. But there’s no right of appeal with arbitration, and some clients (or their counsel) don’t want that. Arbitrators have broad powers, and their decisions aren’t supposed to be reviewable for errors of law or judgment.  The prospect of an adverse decision can be just too daunting for some parties to bear.

There’s another option: judicial reference.  With a judicial reference, the parties stipulate to having their matter heard by a private judge.  It’s just like a bench trial, except it takes place outside the courthouse. The parties get to select their judge (how often does that happen?)  All the rules of evidence apply. See Evidence Code §300. The right to appeal is preserved. The parties present their case just like they would in a traditional courtroom. (See In re McNamee (1933) 131 Cal. App. 30, 31).  Even the public has a right to observe the proceedings (should anybody care to).  See California Rule of Court 3.931(a).

The upside?  The parties get to choose “a date certain,” they choose their judge, and they know exactly when their case will go to trial.

The downside?  The parties pay the referee’s fees.  But the parties are free to agree how those fees will be paid.   See Code of Civil Procedure §645.1(a).

The upshot?  If the cost of gearing up for a trial several times is higher than the cost of paying a referee for three or four days of hearing time, the parties might prefer a judicial reference.

 

Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience in business, real estate, and construction cases. He serves on the mediation panels for the Santa Clara County Superior Court and the Bar Association of San Francisco.  He’s a mediator for the Alameda County Superior Court and a Settlement Mentor for the Contra Costa County Superior Court. He also serves on executive committees for the ADR section of the Alameda County and Contra Costa County Bar Associations. Reach him at [email protected].  

 

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel.