Professional Background
I was a litigator with the Atlanta firm of Rogers and Hardin for 45 years, specializing in class action business disputes with a focus on employment law. In 1997, a very large supermarket chain was sued in a class-action gender case in which the federal court ordered mediation. Despite my never having served as a mediator, I was asked to mediate this hotly contested litigation. With considerable reservation, I agreed to do so. The case settled for $81M plus $18M in class counsel fees. Shortly thereafter I was asked to mediate another large gender class action. It settled for over $90M. Given the size of these settlements, they received considerable notoriety, and I began regularly to get calls from counsel to mediate employment class action cases. Over the next few years, the types of class action cases I mediated expanded to include ERISA, securities, statutory damages, wage and hour, and various types of class action business disputes. I continue to mediate these types of cases today.
Path to Mediation
As noted, my start as a mediator was somewhat unusual, but from the outset I was drawn to mediation as I have always had an interest in the negotiation process and strategies. Because of that, I have read a whole host of books on negotiation—some very good, others worthless — including a very good one that is still my favorite, "Getting to Yes" by Roger Fisher. I started incorporating many of the negotiation strategies from those readings into my practice and quickly concluded that they really do make a difference. So, becoming a mediator was, among other things, a great opportunity to continue to use my negotiating skills to help parties come to resolution.
Role as a Neutral
I don't think there is any mystery relative to what the parties consistently look for in a neutral. They want a mediator who is: (1) well prepared and familiar with the subject matter in the dispute, (2) seeking to find a fair resolution for both sides, (3) approachable and can be trusted to be impartial, (4) innovative, and (5) persistent. I don't think parties focus on which side of the "V" the mediator practiced previously, nor in commercial cases does the mediator's compensation rate control.
Import of Prior Legal Experience
As I mentioned, I have had an interest in negotiation strategies since I began to practice law and before. This interest not only has been a factor in my decision to become a full-time mediator but also has spurred my interest in understanding how instinctive behaviors impact mediation negotiations. Instinctive behaviors, often referred to as heuristics, are just what one would suspect—they are the opposite of logical analysis, but rather are instinctive thought patterns that we all use daily—and they play a significant role in almost all mediations. Just one easy example is that almost always defendants (like almost everyone) have a greater aversion to loss than an affinity for gain. To address this instinctive behavior, the mediator is often called upon to demonstrate to the defendant that the settlement proposal at hand, compared to the continued litigation alternative, is in real terms a gain, and therefore should be regarded favorably. Often easier said than done.
Memorable Mediation Experiences.
Several years ago, I was asked to mediate a dispute in which a city, at the request of a major hospital/university system, annexed a large parcel of land that included the hospital/university. The county challenged the annexation in court because of, among other things, the annexation costing it over $10M annually in tax receipts that were earmarked for its school system. The core dispute was over how the annual $10M in tax revenues were to be allocated going forward between the city and the county. The issue was very emotional for a number of political reasons, as these were competing governmental entities. Not surprisingly, no settlement was reached in the first two in-person sessions. Rather than to repeat the fiasco in a third session, I went to the hospital and got it to agree that it would provide nurses, doctors, and medical assistance to the city's and the county's underserved schools at issue, and to do so using the tax funds in dispute. Because it badly wanted the annexation to go through, the hospital/university embraced the proposal and pushed for it with the city and county. Eventually, the warring governmental entities also agreed to using this approach. The winners here were the underserved school children in the city and county.
Advice to Advocates and Parties
The parties need to exchange position statements. When the statements are sent to mediators, they all too often say "Don't share the contents of this confidential statement with opposing party under penalty of death," or something to that effect. Then in the opening session they say; "Go and convince the other side why all of these arguments in our position statement dictate our being successful in this litigation." That makes little sense. The parties have been analyzing the issues for many months, if not years. They are in an infinitely better position to convince the other side of the validity of their position. They should seek to do so in their shared position statements. The very best counsel more often than not use this approach. If there is any truly confidential information at issue, it can be provided to the mediator separately
Evolving Mediation Landscapes
Many cases do not settle because of an unrealistic valuation of the case by one side or the other, or both. That is one circumstance where I think mediation may be at a crossroads. In general, parties do not do a very good or sophisticated job of evaluating the settlement value of a case. They rely on prior experience with the judge, the jury pool, or purportedly comparable case outcomes. They make valuation errors based on instinctive judgments which are inherently unreliable. Until very recently, case valuations have been limited by the availability of relevant valuation information.
AI changes all of this. AI can help improve the mediation process in many respects, but in particular the case valuation process. There are now AI platforms available that, for example, can search and analyze all of the data on Pacer for the last 25 years. Using that massive data it can, among other things, make reliable predictions of the outcome of most determinative motions. When the parties and mediators start using analyses such as these (and other AI platforms) in their settlement negotiations, the landscape of mediation will, I predict, be altered, permanently.
Mediator Qualities and Skills
The skillsets I believe the parties are in the main looking to a mediator to provide: knowledge of the issues, thorough preparation, neutrality, trustworthiness, innovation, and persistence. In my experience, a mediator has to exhibit these qualities and skills in virtually every mediation. One's reputation is no better than his/her last mediation as word travels fast, whether positive or negative.