The Mediator Who Wasn’t

He came late.

The mediation was all set to begin at 9:30 a.m. But by 9:00 a.m. there was no sign of the mediator. The plaintiff was present with two attorneys. The defendant was present with two attorneys. Everything was all set to go – but no mediator.

At 9:00 a.m. I grew concerned. Where was the mediator? I called his office. No answer. I checked my email. Nothing. No text from him either.

What to do? I couldn’t reach him, had no idea where he was, assumed he was coming but didn’t know for sure. The parties had exchanged briefs a week before and held a pre-mediation phone conference. But now the mediation was ready to start without a mediator.

Finally at 9:20 a.m. I called another local mediator to see if he could serve as backup and do a mediation on 10 minutes’ notice. No luck – he was in joint session with a large group. If my mediator didn’t show up soon, I was going to have to do some quick thinking.

Finally, while I was on the phone with the other mediator’s office our mediator showed up – five minutes late. Why didn’t he call? Why didn’t he take my call when I tried to reach him earlier that morning?

We started the joint session and the mediator began asking questions. I was floored. He was asking questions about everything in my brief. After several minutes I realized he hadn’t read my brief – not at all. We then spent the next hour (in joint session) educating him about all of the points in my brief.

After he got his arms around the issues, the mediator started asking questions. He didn’t walk on eggshells. He dove right in and started asking pointed questions about sensitive issues –issues I’d just as soon not discuss in front of the other side. He drove right through the sensitive issues in my case and started making comments and observations in front of everybody in joint session.

Why would he do such a thing? Here we were at the start of the mediation and he was empowering the other side. How did he ever hope to convince them to take less when he was spending precious time in joint session driving roughshod over the weaker, more sensitive parts of my case and emboldening the plaintiff? In reality, I think he was pleased with himself that he had accurately identified the weaker parts of my case. I think he felt he was really getting somewhere. It all happened so fast that it was difficult to put an abrupt end to the joint session –I did not want to appear to be concerned about the questions he was asking. And then he did the same thing to the other side – probing the weaker parts of their case in joint session. I don’t think it even occurred to him that he was encouraging both sides to dig in to their respective positions.

We broke for caucus. Within an hour our mediator told me he felt the parties would shortly be at impasse. No surprise there. He had just spent the last hour in joint session entrenching the parties into their respective positions.

Why would a mediator do such a thing? This mediator came well-recommended. Why would he think such an approach would persuade either party to move off their respective positions? He was a seasoned attorney with decades of experience.

Effective mediators don’t encourage the parties to dig in. They use tools of risk, cost and uncertainty to help the parties see that a negotiated result gives them power over the outcome of a case. Skillful mediators look for hidden values and priorities that serve as powerful tools in helping parties re-evaluate their positions.

Our case didn’t settle. Would it have settled with a mediator who skillfully probed the client values and explored alternative options in caucus? I believe so. The day wasn’t entirely wasted because the parties learned more about each other’s “dig-in” points. But was it an optimal mediation? Not at all. With even a marginal degree of mediator skill, this case should have settled.

The upshot from this experience? We were reminded (once again) that a mediator’s skills are critical to mediation success.


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 a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJLaw.com

A Bad Deal With Good People

I recently enlisted the help of a wonderful general contractor to help me out with a construction claim I’ve been dealing with. This contractor provided me with an insightful repair bid that helped me settle the case.

After the case was concluded I contacted this contractor to let him know the case had been settled. He took a moment to share with me an experience that has stayed with him for nearly thirty years. After the 1991 Oakland Hills fire this contractor was hired to repair some fire-damaged property. It wasn’t a big job, but it made a difference to him. After doing the work he approached the owner about getting paid. The owner looked him square in the eye and said, “You know, I just can’t see paying you.” And he didn’t.

It’s not that the contractor’s workmanship was bad or that he did something wrong. Rather, this was simply an opportunity for the owner to stiff the contractor because he knew a claim by the contractor for the unpaid amount would not be worth pursuing.

The contractor was enraged. He consulted an attorney and said he wanted to sue the owner. After listening to the facts, the attorney told him it wasn’t worth pursuing. He said that if this contractor wanted to press the issue then he would have to write the attorney a check up front for most of the unpaid amount. The attorney told the contractor that he couldn’t guarantee the contractor would get anything; he thought the contractor should walk away. This attorney then gave the contractor this sage advice: “It’s better to be in a bad deal with good people than a good deal with bad people.”

The contractor walked away from the money, but not from the advice. He’s used that advice during the past 30 years to turn down jobs that looked perfect in every way except for the vibes he got from some owners. This contractor says that this advice has served him well.

Experienced litigators and mediators know that the personalities of the parties will be key in shaping the eventual settlement and resolution of many disputes. If people are fair-minded, reasonable, and (relatively) willing to listen, then at mediation the risks of trial can be evaluated in the light of the costs of litigation and a settlement can presumably be reached. But if one side is trying to take a bite out of the other or shove them into a corner then a day of mediation can turn into a very long day indeed.

Parties to a business deal or a contract can often control the personalities involved in their transaction by choosing who they do business with. But as mediators we don’t have that luxury. We have to take the parties’ personalities as we find them. Sometimes the personalities match up well with the dispute. Sometimes they don’t. The genius and the magic of mediation rests in a mediator’s ability to size up a difficult situation involving imperfect people and then in short order identify (and to the extent possible to meet) the needs, values and objectives of the parties involved. When this happens, great results are possible. When it doesn’t, the parties’ dispute moves forward to another day of mediation or to a decision at trial or arbitration. But most mediators would agree that it’s easier to settle a difficult case with reasonable, fair-minded people than it is to settle even the most simple case with impossible people. My contractor’s timeless advice applies not only to business or real estate transactions, but also to settlement, mediation, and many, many other life activities.

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 a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJLaw.com

Who’s the Driver?

Many years ago I participated in the mediation of a case with many defendants. The Plaintiffs were husband and wife who had sued nearly everybody they could touch. During the course of the litigation (and the mediation) it became clear the plaintiffs were on the war path. All of their claims against all the defendants lacked merit. But the Plaintiffs had filed suit, so we were all at mediation with our clients. We filled a large conference room.

We mediated all day long and came up with a complete settlement package that offered the Plaintiffs more than they were entitled to. The prospective costs of defense were real, and it was worthwhile to offer the plaintiffs a great settlement package so we could wrap the case up.

After the settlement package was presented, the Plaintiffs conferred with their attorney for a long time – and then rejected the offer. They wanted more money. The package had included money and other additional rights the Plaintiffs weren’t entitled to. But in the end they just wanted more money.

So the mediation failed. Everybody went home.

What went wrong? We had all mediated in good faith. Nobody left early. Everybody was cooperative. We had made good progress the entire day, and based on our discussions with the mediator it seemed like our final package was something that would be appealing to the Plaintiffs. But at the last minute they just dug in and refused to accept it. What went wrong?

The driver hadn’t attended the mediation.

Plaintiffs were husband and wife, but only one of them attended mediation. At the end of the day, the spouse who attended made a phone call to the other spouse. The other spouse (apparently) rejected the package. In actuality the non-attending spouse scuttled the mediation.

Who was the driver in that case? Was it the attorney? Or the spouse who attended mediation? No – it was the spouse who didn’t attend. Unfortunately the mediator had little (or no) access to this person – but this non-attending spouse was the single most important party in the entire mediation. They drove the entire process – and it failed because they refused to get on board.

It ultimately turned out fine for my client. We went to trial. We won and received an award of 100% of our attorneys fees. But there was still a time component and an emotional cost to the trial. It would have been better for everybody if had settled the case at mediation. But the driver wouldn’t get on board.

Mediation is about relationships, decisions, ego, emotion and “the moral high ground.” Some people are cooperative. Others are less so. Some people express strong emotions. Others express very little emotion. Sometimes parties won’t settle because they want more. And sometimes they don’t settle because they want the other side to get less. In complex or difficult mediations, an effective mediator must immediately identify the “drivers.” Early buy-in by these drivers is essential. If they don’t buy in, then they may walk out. And when parties or counsel walk out, mediations end quickly.

That’s not to say that the other participants aren’t important – they are. But cases only resolve when there’s full consensus. So at the start – and during the middle – and at the end of the mediation, the mediator must determine who the drivers are, and then must work overtime to find out their agendas, their concerns, their emotional “hot” buttons and what keeps them up at night about their case. Only when the mediator identifies and resolves these critical sub-issues can the mediation move forward to a successful conclusion.

As mediator I regularly work with parties and legal counsel to get cases resolved. Few people tell me up front what the hidden issues might be. I have to uncover them one at a time. Nobody tells me who the drivers are. I have to figure that out – and quickly.

What does that mean about effective mediators? They must be able to listen actively, clearly, and with discernment. They must be able to watch and understand people and what motivates them. Effective mediators are continually watching and evaluating the players: what spins them up, what calms them down, things they value and things they don’t. An effective mediator can turn on a dime (as needed) to get (insofar as possible) these drivers what they need so the case can settle. Sometimes that’s money; oftentimes it’s something other than money. Sometimes it’s what the money represents. People who feel validated and respected are in a far better position to settle a claim than those who feel abused, neglected, oppressed or manipulated. An effective mediator must be an expert at understanding people, putting them at ease, reassuring them and helping them feel like they’ve been recognized, respected, and are getting a good deal. Otherwise, in difficult cases where mediators don’t do this the mediator just spins their wheels like everyone else and the case goes nowhere.

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.

After litigating for more than 30 years, Robert B. Jacobs now mediates challenging real estate, business, construction, personal injury, trust and probate cases. He served in 2020 as the Chair of the Contra Costa County Bar Association ADR section and as the Co-Chair of the Alameda Count Bar Association ADR section. Since 2017 he has served as one of the update
authors for the CEB treatise Real Property Remedies and Damages; in 2021 he will be rewriting its chapter on ADR. He received his mediator training from Northwestern University in Chicago, Illinois
.

Five Tips for Greater Success at Mediation

It’s no secret that most lawsuits eventually settle. The uncertainty, cost and delay of litigation provide a powerful incentive for parties to voluntarily and informally resolve their claims.

Since most lawsuits are going to settle (either at mediation or otherwise), it’s important for counsel to determine when (and how) is the best time (and way) to settle. Settlements without mediation can be reached anytime. But these days settlement at mediation is definitely the “soup de jour.” Here are five tips from a seasoned mediator for greater success at mediation.

  1. Pick the Right Mediator.

The importance of this point can’t be overstated. Choose the right mediator and you may have moved the ball two-thirds of the way down the field. Choose the wrong mediator and you may find yourself picking up the pieces after a frustrating day of unsuccessful negotiation.

So who is the right mediator? It depends on your case. Look at your facts. Look at the law. And then look at the personalities involved. Since you’ve probably never met the opposing party, your own client will have to educate you about the other side (if they know them). If the client on the other side is an unknown quantity, then you’re left to make your own best guesses as to that side’s values, wants and needs.

Is the other side in love with their case (without a reasonable justification)? Then you may need a mediator with a wealth of trial experience — one who understands the law, the realities of trial and one who can educate the other side about the facts of life in the law.

Is the other side edgy, testy, accusatory, short-tempered? Then you may need a mediator who is calm and won’t easily take offense. A mediator who takes offense at emotional outbursts or hard-ball tactics by the other side may be unwilling to continue mediating to the point where resolution is possible. (The quickest way to end a mediation without resolution is for someone to leave or for the mediator to throw in the towel.)

Does the other side usually wring their hands or have trouble making decisions? Then you may need to choose a mediator who can assert some bravado to get them off the dime. Does the other side feel wronged, disrespected or disabused? Then you will want a mediator who is compassionate, understanding and patient. In such cases the mediator will need to help the other side feel that they’ve been heard and that their values and opinions matter.

  1. Get What You Need.

What are your client’s goals, values and objectives in this litigation? Sometimes it’s money. Sometimes it’s something else. Your client may never agree to settle this case unless their goals are sufficiently met. But before that can happen, you first have to know what your own client’s goals and values are. Talk to them. Find out what’s driving them.

Are there key facts or documents you don’t have yet? Consider putting over the mediation until you are able to get them – and then present them to the other side. You’ll get better mediation results when you can present a strong, persuasive case. Wordsmithing, demands and assertions alone aren’t enough – your case will be more persuasive when you have the facts and documents to back up your claims and defenses.

If there’s no real dispute about key facts or documents, then early mediation may be the best way to go – before the parties have ratcheted up their legal costs through months of discovery and motion practice.

  1. Get the Other Side What They Need.

Perspectives vary. Both sides often feel like they have a winning case. If the other side fails to appreciate the predicament they’re in then you’ll need to show them where they have a problem.

Marshal the necessary facts. If the case depends on witness testimony, consider getting witness statements. If it’s a technical case, consider getting an expert report. Sometimes an expert at mediation can provide technical information and a perspective the other side simply hasn’t identified, understood, appreciated or accepted. Expert opinions won’t be necessary in every case – but in the right case they can be invaluable.

If the other side doesn’t know about key facts or documents, consider developing (and sharing) those facts or documents with the other side in an appropriate way. If the other side doesn’t seem to understand the law, then use your brief to educate them about the key legal aspects of your case. If the client on the other side wants something your client controls, then discuss with your client in advance what kinds of terms your client will need or want in order to relinquish that control. If you are prepared to provide the other side with what they need, you’ll be in an excellent position to negotiate what your own client wants in order to resolve your case.

  1. Get the Mediator What They Need.

Mediator time is “up for grabs.” Nobody wants to spend more time than necessary on mediation briefs. But effective mediation briefs do more than just orient the mediator to the case. Use your mediation brief as an opportunity to present your facts in the best possible light (without overreaching). Let the mediator see the facts as you see them – and as you plan to present them at trial. This will help the mediator clearly discuss your facts with the other side – and can help the other side understand the strength of your case. Go ahead and cite key legal statutes and precedent. Citations to important case law can help your mediator point out the strengths of your case to the other side. I recently mediated a case where one of the briefs marched through the facts and the applicable law in great detail – and it became the controlling document for the entire mediation. We got the case settled due in significant part to the law that was clearly laid out in that party’s mediation brief.

Give your mediator some runway to work with. I try to read mediation briefs within a day after they are submitted. Oftentimes mediation briefs highlight additional facts, law or exhibits that may be important but were not included with the brief. If the mediator receives briefs early enough then the mediator can request that such documents be supplied to the mediator (and the other side) in advance of the mediation so that your case can be fully laid out prior to mediation day. This can significantly help the mediator in discussing your case with the other side. If the mediator only receives your brief a day or two prior to the mediation, then your brief can orient the mediator to the case – but there may be insufficient time for the mediator to request further facts or documents that may have been valuable in getting the case resolved.

If the case hinges on a contract or other key document then consider providing the mediator with actual copies of such documents as exhibits to the mediation brief. Those kinds of documents can often be invaluable in showing the mediator the strength of your case. A mediator who is convinced of the strength of your case is in a far superior position to discuss the strength of your position with the other side.

  1. Never Underestimate the Importance of Non-Monetary Considerations.

Judgments do some things really well – like awarding monetary damages. But judgments are sorely lacking in other departments – like acknowledgments, concessions, or rights and benefits involving third parties.

I recently mediated a case between family members. After we worked on the case for several hours I looked at one of the brothers and said “Some cases are about the money – and some aren’t. Is this case about the money or about what the money represents?” He acknowledged that the case was not about money but instead “what the money represents.”

What did he mean by that? Did he mean that money was unimportant? Not at all. Some cases are really about the money. But other times a case may be primarily about what is “represented” by the money – such as respect, fair treatment, an acknowledgment of a wrong, a wound, an inequity. Money is enormously important – not only because that’s how lawyers get paid, but also because it’s easily quantifiable – and when it comes to money it’s easy to tell whether recipients are being treated equally or not. Sometimes parties want substantial money in settlement primarily because they don’t want to feel like the other side got ahead of them (or got more than they did). These dynamics can be critical to some settlements. When lawyers and mediators see and understand these “non-monetary” considerations they are often able to put together settlements that would have been impossible otherwise.

Sum-up. Advance preparation can have a big effect on whether or not your case settles at mediation. Skillfully using available resources like mediation briefs, exhibits, timing and mediator selection can make all the difference on the success of your mediation.

Robert B. Jacobs is a mediator and arbitrator with over 30 years of business, real estate and construction law experience. He is the 2019-2020 chair of the ADR section of the Contra Costa County Bar Association and the 2020 co-chair of the ADR section of the Alameda County Bar Association. Reach him at Bob@attorney-mediator.law

The Future of Litigation

This year I am serving as the chair of the ADR section of the Contra Costa County Bar Association.  This year I’m also serving as the co-chair of the ADR section of the Alameda County Bar Association.  This service places me in contact with lots of different people from all walks of life.

I recently had occasion to communicate with a recently retired judge who served for many years on the bench of one of the San Francisco Bay Area counties.  This judge has great insight into court restrictions caused by the COVID-19 situation.  He indicated that some attorneys expect that the court system will resume normal operations some time in the near future “when the COVID threat has passed.”  But that’s clearly not the case.  Because the courts have shut down for several months, a large number of pending criminal matters are waiting to be tried.  The defendants in many of these cases have not agreed to “waive time” which means these cases go straight to the top of the list once jury trial courtroom assignments can be made.  There are also apparently other criminal matters that have a high priority on the court’s docket and will almost certainly receive preference over civil matters.  This means that for perhaps two years – and maybe longer – there may be few, if any, civil courtrooms available for jury trials.

Doing the math isn’t hard.  Over the past several years our courts have been doing an admirable job of handling burgeoning calendars with limited resources.  But it’s clear that the courts have been just barely keeping up.  But all of that has changed now.  We have a three or four month backlog of criminal cases that will need to be immediately addressed once jury trials resume.  Plus, jury assembly and deliberation rooms aren’t set up for “social distancing.”  If jurors are seated in every third or fourth chair in juror assembly rooms, then the number of available jurors will be cut by something like half to two thirds.  Moreover, the jurors will need to have someplace to deliberate during trials where they can maintain “social distancing.”  It’s therefore entirely possible that instead of requiring one courtroom for each jury trial a total of two courtrooms may instead be needed so that a trial can be conducted in one courtroom and the jurors can be provided with a second courtroom they can use for deliberations.  Use of available courtrooms this way would mean that the courts are operating at something like two-thirds of their capacity so that instead of catching up on the backlog the system would just continue falling further and further behind.  Since criminal cases with no time waived have such a high priority on the court’s calendar, general civil jury trials (and possibly bench trials) may be put over for years. 

It’s not a pleasant prospect for anyone.  Court resources are already overloaded – and parties in litigation will now be presented with the prospect of substantial delays by a system already known for being slow.

In this context the value of Zoom ADR can’t be overstated.  Mediation has been a valuable way of resolving disputes for decades.  But now its appeal is even greater.  Instead of waiting for years (and years) for a courtroom, parties can take control of their dispute by exploring voluntary settlement through mediation.

With current COVID health concerns and social distancing requirements, in-person mediations remain difficult (or impossible).  The alternative is clearly mediation via Zoom (or by similar online platforms).

Let’s face it – the prospect of online mediation just doesn’t sound good.  It’s like crossing a video game with a lawsuit.  Doesn’t inspire confidence.  Seems like a bad idea all around.  Frankly, some attorneys just aren’t ready to go there.  Period.

The reality is actually quite different.  I did three mediations via Zoom over the last two weeks.  All of those cases settled.  It’s not that these were unique cases – they weren’t.  All of them involved different counsel and parties – and there was no overlap between any of them.  But the Zoom platform felt much the same to me as an in-person mediation.  People were focused – they were available – and they participated.  It’s possible to view in-person mediation as requiring parties to put more “skin in the game” due to the required travel and lack of an ability to engage in other activities during the day.  But I didn’t see any qualitative difference in my Zoom mediations.  People were at home; their families were sometimes in the background; sometimes they were including other activities in their day.  But people were still focused.  They were present in mind and spirit (which is essential for successful mediation).  They got it; they stayed focused and we got the job done (even though a couple of the mediations went late into the evening hours).  In short, the Zoom platform worked.

An alternative might be in-person mediation with masks.  Frankly, that’s going to be far less desirable than a Zoom mediation.  A mask creates a real, physical barrier between people.  It doesn’t lend itself at all to the connections that drive mediation.  It may sound surprising, but the human element necessary for mediation comes through well on Zoom.  As a mediator I’d far more prefer to mediate a case via Zoom than an in-person one with masks.  That’s not to say a “masked mediation” won’t be successful.  But with masks those connections which are so essential to trust, understanding and connection will be much harder to form.

My sense is that counsel who have tried mediation by Zoom will have a better opinion of the process than those who haven’t.  Following my Zoom mediations I’ve consistently received comments by counsel that the process operated better than they thought it would.  So while there’s still an ability to look to the future for in-person, maskless mediations, it’s entirely possible that for the foreseeable future the cases that get resolved at mediation will be by Zoom or a similar platform.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at Bob7@RBJLaw.com.

The Younger Crowd

My kids are all grown. They all have their own children. It’s been a few years since we had children living at home. But these days our yard is often strewn with plastic toys. After dinner we have lots of small bits of food on the floor and we once again have car seats in our car.

One of my daughters has come back to live with us – this time with her husband and three young children. With the current shelter-in-place orders, I’m spending a lot more time at home these days.

Frankly, I’d forgotten what it’s like. Life had gotten quiet over the past several years – and I’d grown accustomed to it. Things stay put where you leave them. No Cheerios on the floor. No sudden bangs from objects crashing to the floor. No raised voices of protest, objection or indignation.

I’d forgotten what it’s like. Then overnight everything was back as before. Except this time it’s different. After our own children grew up I went through mediator training. As a result I’ve developed a deeper sense of dispute resolution; of power and negotiation. I’ve now mediated scores of cases. And this time around I see the noise, the howling, the crying, and the frustration through new eyes. It’s not all bad. My new young citizens are learning the art of negotiation and dispute resolution first hand (and in a safe environment).

It’s a fascinating exercise. I see these young people (my grandchildren) using available tools to get what they want. Their actions are a study in power and control. What they lack in size they make up in volume, tenacity and energy. I sometimes see them weaponize their voices. If they feel they have no say in a matter they will level the playing field by using volume – instantly. Prized objects sometimes become the subject of carefully orchestrated negotiation. People (both children and adults) are played off each other. These children are unbelievably affectionate. But they are also becoming skilled negotiators. They use charm and their available power so interchangeably it’s almost like an alternating current. They are learning motivation techniques, value identification and how to push buttons. It’s truly a study in power (and human dynamics).

One of my grandchildren recently asked me for an item (but they asked me in an unpleasant tone). I responded that I’d be happy to comply with their request if they asked me nicely. The response was instant and rather than asking in a nice, pleasant tone of voice they turned to their father and made the same request.

Fascinating. I was ready, willing and able to give them what they wanted. But they wanted it on their own terms – and rather than submit to my terms (i.e. asking in a nice tone of voice) they tested their available power with another adult who might provide them with what they wanted (without having to submit to my terms). It was a complete microcosm of human relationships – and a study in power.

The outfall of all this has not escaped me. Sometimes I mediate probate or trust disputes where children have grown up. A mediator might think that child-era relationships in a grown family would have been superseded by intervening adult relationships – but this isn’t always so. Many of the family dynamics that existed decades ago when people were young are still fully present in these mediations. With my grandchildren under foot I sometimes feel like I’m watching relationships form in real time that will be played out over a lifetime.

Nothing is more fascinating than the people around us. It’s easy to think that children are lesser citizens because they lack power. Not so. I see them skillfully identify and use available human relationship tools every day. They act rationally, capably and intelligently (if we don’ squelch them because of own power). I recognize that their soft spots (sugar and television) may be more pronounced than with some adults – but that doesn’t detract from the brilliance of these young citizens. They are fully skilled and capable within their own orbits – even at two years old and watching them observe, capture and then shape their world is not only a study in power – it’s a study in joy.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at Bob7@RBJLaw.com.

Mediation? No, Thank You.

Some time ago I showed up at a trial call. The opposing party was a pro per defendant.

I had fully prepared the case for trial. My trial exhibits included a copy of the signed contract along with copies of all of the invoices supporting my breach of contract claim. The defendant had no real defense. I fully expected to receive a favorable judgment.

I walked into the courtroom and saw the defendant seated in the gallery waiting for the case to be called. The judge was not yet on the bench and there were several other people in the gallery. Instead of sitting on the opposite side of the courtroom, I walked over and sat right next to this pro per defendant. I wouldn’t have done that in every case, but I knew this defendant was personable and I didn’t sense any tension or hostility from him.

The defendant seemed overwhelmed and uneasy. I greeted him warmly and smiled at him. On a personal basis, I liked him and I let it show. Trial is an inherently stressful situation, and there was no need to make this case any more stressful than it already was.

I told him that I was sorry we had to go through all of this (and I meant it). I then told him that I could settle for a small discount on the amount owed and then we could just go home. He said he didn’t have the money to pay what was owed.

I believed him. However, this wasn’t a huge case, and I suspected he might have enough credit available on a credit card to pay what was owed. I told him I could accept credit card charges on my phone. We could go out in the hall, he could authorize a charge on his credit card, and we could be done. He said he just couldn’t do it. I told him “no problem” and said that we could just go through the trial. I would win; I would record an abstract of judgment; it would create a lien on his real estate and when he sold or refinanced his real estate, the judgment lien would get paid. No muss, no fuss. He said OK.

Two mediators were present in the courtroom. One of them stood up and announced that they were available to mediate cases set for trial that day. They asked if any of the parties were interested in mediating.

My pro per defendant raised his hand. The mediator looked at me and asked if I’d like to mediate.

I’ve served as a mediator for several years. I regularly participate in mediation, both as a mediator and as legal counsel. I know mediation is a highly effective settlement tool.

I looked straight back at the mediator. I answered his question about submitting the case to mediation and said, “No, I don’t think so.” The mediator sat down.

Shortly afterward the court called our case and asked us to exchange exhibits. I handed the pro per defendant my stack of exhibits. I asked for his and he replied that he didn’t have any. I said, “No problem.” He looked even more overwhelmed. He then said, “How about you give me a small discount and we settle?” He proposed a settlement figure that was acceptable and I agreed to it. The judge had not yet taken the bench. I told the clerk that we wanted to step out in the hall and talk settlement. She said, “Great,” and out we went.

The defendant gave me his credit card number. I ran a charge on my phone and it was approved. We were done. No muss, no fuss.

We went back into the courtroom. I let the clerk know we were done, and the case was to be dismissed. It was all over in less than ten minutes.

So why did this all happen this way? And why did I turn down an opportunity to mediate when I serve as a mediator all the time and I know how effective mediation is?

I could see what was happening. My pro per defendant was willing to mediate, not because he wanted to seek a resolution, but because he was trying to avoid the inevitable. He was looking for a way out, and mediation seemed like his last best chance to find one. But I knew that mediation that day would just chew up a lot of time and could even cause us to miss our trial opportunity. If that happened we would have to come back for trial another day. My pro per defendant just had to face the music and be done with it. I wasn’t against settlement – I preferred it. But my goal wasn’t to mediate; my goal was to settle.

The take-away? Mediation is an incredibly effective settlement tool – when used properly, with skill, and in the right context. But there’s no value in rote submission to mediation if it’s not the right tool, in the right circumstance, at the right time.

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 a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJLaw.com

It’s Not over ‘Til It’s Over

I recently showed up at an Issue Conference in Superior Court.  Although these conferences are (supposedly) for the purpose of narrowing issues and making sure the case is ready for trial, everybody knows that the court typically treats these issue conferences as settlement conferences.  

My clients were present at the conference and I was loaded for bear.  We had a great case; the facts all lined up and we had great legal arguments.  The Judge met with us briefly and then the negotiations began between counsel.

We spoke.  We sparred.  We arm-wrestled.  We argued. We persuaded.  The judge helped us at key points.  And then we settled. 

The second phase began.  How do you settle a case in open court in front of the judge?  On the record. Opposing counsel proposed we put the settlement on the record.  But there was a problem. Opposing counsel’s clients weren’t in court. 
They hadn’t shown up that day for the issue conference (even though they were supposed to).  So how do you do that? How do you put a settlement on the record when one of the principals isn’t present?  

The judge raised the possibility of having the principal appear by phone for voir dire and putting the settlement on the record.  Is such an arrangement binding? Maybe. Nobody had time to run out and research it. Everything was happening in real time. If nobody challenged the settlement, fine.  But after the fact if the opposing side claimed they were misled, or misunderstood, or claimed that voir dire by phone isn’t sufficient, what happens then? Were we truly prepared to cut some new case law on this point at the appellate level?

Fortunately I had brought with me a fully typed up settlement agreement I had prepared in advance.  I even had the soft copy on my computer (in the car). Opposing counsel proposed we sign a “short form” of settlement agreement with the final form to be prepared, circulated and signed later.  But there was no need to go there. I pulled out my fully prepared settlement agreement, handed it to opposing counsel and invited him to give me his comments (which he did).  He then sent it to his clients, who signed it, sent it back, and we were done.  

What’s the benefit of this?  There’s no possibility for misunderstanding.  No haranguing after the fact about phantom settlement terms supposedly discussed but not included in the agreement.  No after-hours discussions with friends, families or others who might second guess the settlement terms and then cause the principals to back away.  No, we were done.  
Thirty years ago I settled a large construction defect case with a lot of players.  We signed a skeleton form of settlement agreement at mediation with the complete settlement agreement to be prepared and signed later.  But even though we had signed a “short” or “abbreviated” form of settlement agreement, it took nearly a full year to get the final form prepared, accepted and signed.  After going through this process I said to myself that I would never do that again (and I haven’t). When I’m serving as attorney I always bring with me a fully prepared final settlement agreement – and we hammer out the final terms at the mediation or settlement conference so we don’t have to go back to the judge, the mediator, or the arbitrator for confirmation, clarification, persuasion or muscle.  When I’m a mediator I typically invite one or both parties to bring with them to mediation a fully prepared form of settlement agreement – and they usually do. So when we’re done with mediation, we are truly, fully, actually done – without remorse, second thoughts, second guessing or backtracking. As a result, we never spend time on the back end trying to get the settlement buttoned up. It’s all done in advance.  It works like a charm.  

Why do this extra work on the front end to put together a final agreement before the case has been settled?   

Because it’s not over ‘til it’s over – and nobody likes to keep negotiating terms, wrangle opposing counsel or deflect claims or arguments after a settlement is reached.

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 a mediator and arbitrator in the San Francisco Bay Area.  He mediates cases throughout California. Reach him at Bob7@RBJLaw.com

Mediation’s “Soft Considerations”

Mediation is serious business. Clients are apprehensive.  Attorneys are on high alert. Everybody knows the drill. At the end of the day, someone is going to pay more – or accept less – than they want to.  If that doesn’t happen, the case doesn’t settle and both parties lose. It can be a tense experience.

Sometimes the parties claim the other side is acting in bad faith.  If the parties distrust each other, how far will they move? Will they even budge?  Nobody’s going to change their position when they feel they are being disabused by the other side.  Nobody’s going to allow themselves to be pushed around. Nobody can afford to let the other side get the upper hand.  And as for their unreasonable offer? No way.

What’s a mediator to do?  If a party won’t even hear the other side’s offer, a mediation is doomed.  Nothing can be done until the parties are at least willing to listen to what the other side is offering.

Parties – and their attorneys – are human.  People want to feel valued. They want it known that they have been wronged.  They want their thoughts and feelings acknowledged and respected.

When people are angry or upset, they don’t think.  Instead, they react. They fight. This kind of atmosphere is just exactly what you don’t want at mediation.  Instead, you want parties and attorneys who are thinking clearly; who will carefully evaluate the risks of pressing forward and who will appreciate the benefits of certainty.  You want people who are thoughtful, reasonable, and rational. You want people who are willing to look at things from a different perspective. You want people who are willing to learn and consider.  In short, you want people at their best.

The mediator is at the proverbial “eye of the storm.”  The parties often see the mediator as the person in charge.  Sometimes the attorneys look to the mediator for clues or direction.  If a mediator is tense, everyone’s tense. If the mediator gets angry, then people get unsettled at best and angry at worst. 

Enter the “light touch.” 

If the mediator smiles, people are reassured and at ease.  If the mediator is friendly, then people feel comfortable. If the mediator is personable, then the attorneys and parties know they can trust him or her.  If the mediator listens – truly listens – to the parties, then they know that their concerns matter. In short, if the mediator is good, the mediation’s good.  Nobody sets the tone of a mediation more than the mediator.

A well placed quip; a bit of a smile; an expression of personal interest; a compliment.  All these help parties feel more comfortable in this inherently difficult environment. And what about food?  A hungry person is a poor negotiator. Get some good food in them and the world’s a better place. Get something that leaves you feeling good after you’ve eaten it – and then the parties can focus on the matter at hand instead of how poorly they’re feeling.  The investment in food can pay big dividends in how people feel about the process – and in their own willingness to give a little.  

These are soft considerations – but they’re key.  A mediation that is staffed with the right decision makers has all the necessary elements for settlement; the only thing that needs to happen is for the parties to make up their minds (or change them) to settle.  That very change of mind – and heart – can be helped or hindered by the tone set by the mediator and these other “soft considerations”.  

Why not give yourself (and the other side) every opportunity to settle?  Big guns have their place – but so does the soft touch, the reassuring approach and the personable mediator.    

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 a mediator and arbitrator in the San Francisco Bay Area.  He mediates cases throughout California. Reach him at Bob7@RBJLaw.com

Construction v. Demolition

When you get right down to it, the construction process is fascinating.  Contractors take a set of drawings and with the right labor, equipment and materials they can build just about anything.  My six year old grandson can’t take his eyes off diggers, loaders and backhoes. I can’t blame him. Watching heavy equipment in action is completely mesmerizing.    

I have one of the only third floor offices in Livermore.  Outside my window is an unobstructed view of the Livermore hills in all their green and gold splendor.  In the foreground was a small commercial oil change building – until recently. One day I left my office and the building was there just like it had always been for years and years.  The next day I looked out my window and saw something completely different – a pile of rubble and a large excavator.  

What happened?  The building was being torn down in the name of progress, and a new structure is planned for its space.  The overnight change was truly dramatic. I know it takes months to put up a building, starting with the planning, drawings, permits and then doing the foundation work, underground utilities, framing, stucco, roof, windows, interior walls and finishes.  Everything has to be carefully sequenced and orchestrated. You can’t put the roof on until the walls are built. You can’t install windows without a wall or foundation. 

But demolition is completely different.  The excavator shows up, hooks its bucket on to the roof of the building and presto – down it comes.  With a good sized excavator you can easily take down a small or medium-sized commercial building in a day (or less).  

Why the big difference between construction and demolition?  Because effective construction requires everything to be done just right and in the right sequence.  With demolition everything happens all at once. Demolition requires relatively little planning, very little sequencing and no delicate operations.

As with construction, a successful mediation requires advance planning and legwork.  The dispute has to be ripe for resolution – if key questions are unanswered the case may not be ready for resolution.  Advance preparation includes identifying necessary decision makers; selecting an appropriate neutral; scheduling; and exchange of key documents and briefs.  A skillful neutral will carefully review the briefs, identify potential gaps in the documentation and discuss them (as appropriate) with counsel. The mediation timing must be appropriate to the case; the correct parties must be present; any insurance issues must be identified.  These are key tools that the mediator works with.   

Few structures get built in a day, but the large majority of mediations are done in a day.  Even though a mediation time frame is far more compressed than a construction project, there’s still a sequencing that needs to be followed.  First the legal counsel must have confidence in the mediator. Then the mediator must feel comfortable with the dispute. Ultimately the parties need to feel like they can trust the mediator; they must know that he or she is impartial.  They need to know that he or she is prepared and fully understands their position and arguments.  

All of this takes both time and care.  If a mediator is going to truly understand the strengths and weaknesses of a party’s position, then the mediator must be willing to spend the time and effort to become acquainted with the case, the counsel and the parties.  Sometimes a mediator can be tempted to skip most or all of the prep work and start asking for demands right at the outset of a mediation.  If the case is already in a position to settle without much mediator input, then such an approach may result in a successfully mediated resolution.  But if emotions are high, or liability or damages issues aren’t clear, then a mediator is going to need to follow the sequence of becoming familiar with the case and each of the parties.  Any effort to shortcut this process can sometimes result in more of a “demolition” than a “construction” process. And the best mediations proceed in a logical, ordered sequence towards resolution.  Skip one of the key steps and you may find yourself back at square one.  

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 Bob7@RBJlaw.com.