John M. Barkett has practiced for 51 years as a litigator and for 30 years as a mediator. His areas of practice are diverse: commercial, corporate, environmental, insurance, franchising, antitrust, copyright, trademark, personal injury, class actions, securities, and patent infringement, to name the more prominent. His first mediation was in 1996 when two lawyers he knew asked him if he would help them resolve a case. He did, and the phone has not stopped ringing since. While that first case was special, his mediations involving multiple parties (sometimes 50 or more) stand out. All were successful, but he has always remembered how tired he was after each was over!
We asked him how his expertise informs his approach on the American Arbitration Association® Mediation Panel.
What motivated you to pursue mediation, and were there personal influences or professional experiences that shaped your path to joining the AAA?
Mediation fell in my lap. I was asked by lawyers I knew to help them resolve a case. And the case settled. Just drawing on decades of experience inside a courtroom and a breadth of knowledge in so many substantive areas of law has shaped my mediation journey for over three decades.
What do you value most about serving as a mediator with the AAA, and what aspects of the work do you find most meaningful for the parties you serve?
First, I love the organization. The AAA does a fantastic job assisting parties in dispute resolution, whether in the mediation or the arbitration context. Helping parties understand their case is the most meaningful part of my role as a mediator. I walk into every mediation able to argue each participant's case as well as the counsel in the matter.
How has your previous experience as an attorney, arbitrator, judge, or in another professional role shaped your approach to mediation?
My 51 years of litigation experience have taught me well. I understand why parties win or lose cases. I understand evidence and burdens of proof. I can evaluate witnesses and how they will be viewed by a trier of fact, whether judge or jury. I always have intimate knowledge of the legal issues and the applicable law before I begin any mediation. In short, I am always prepared, and parties not only quickly learn that but appreciate it.
How do you approach the mediation process, and what strategies do you use to help parties move from conflict toward resolution?
I am a big believer in the principle of self-determination: parties, not mediators, settle cases. That said, I work hard to make sure that every party's eyes are wide open. In other words, I want parties to make an informed decision about whether to settle a matter because they understand the risk. I am fond of saying that I do not care whether a party settles, but I do care if a party is on the courthouse steps and regrets not settling. when it had the chance to do so. As for strategies, every mediation is different. I am a bit of a chameleon, able to adjust approaches as I listen carefully to the parties. And that does represent one strategy: listening. Hear what the parties are saying. Then you can employ strategies appropriate to the matter.
Without breaching confidentiality, can you share a moment or case in your mediation work that was especially rewarding or that highlighted the strengths of the process?
I remember one mediation where a plaintiff wanted to leave after hearing the response to a settlement demand. I stood up and blocked him from leaving and said that if I told you that you would settle the case in the next two hours, would you stay? He said he would. He did, and he settled the case within the next two hours. In another matter, I was serving as a Special Master in a federal court matter when the parties asked me to mediate their dispute but also to convince the district court to postpone their trial—something that a judge never did. I told them I would ask the court to put off the trial on one condition: that both sides have persons present with full settlement authority. They both said they would bring their CEOs. The judge agreed to put off the trial. And I was able to get the two CEOs together with me, and after a couple of hours, they resolved the case. On 9/11, I was on the 65th Floor of what was then the Sears Tower mediating an environmental dispute with about 50 parties. Just after introductions, someone came into the room and told us we had to evacuate. There was chaos in the lobby. We heard there was a plane crash in New York, but knew no more than that. I was able to gather everyone in my hotel room a few blocks away. Packed in like sardines, we turned on the television and watched one of the towers go down. I then did what I felt any good mediator would do. We prayed silently. I then asked everyone what they wanted to do. O'Hare was shut down. The trains were not running. Everyone decided to continue the mediation. The case settled in 45 minutes. It was a multi-million-dollar settlement, but no one had the stomach to argue. We got to bottom-lines immediately and the case resolved.
Have you noticed any trends or shifts in the use of mediation, the types of disputes, or in parties’ expectations in recent years?
If anything, mediation has become a standard requirement in every jurisdiction in America. I am seeing greater use of mediation to resolve international commercial disputes as well. The types of disputes being mediated have not really changed—no matter the subject, all disputes can be mediated if parties are looking for a solution other than one imposed by judge or arbitrator.
Which skills or qualities do you believe are most essential for a successful mediator, and how have you cultivated them?
I have said that everything I learned from my mother and father has allowed me to become a successful mediator. I work hard. I listen. I am always prepared. I am polite. I am respectful. I am humble. And I am fair.
Outside of your professional work, what activities, causes, or passions are important to you?
Don't laugh, but I have another life as a professional clown. I have been entertaining children for over 60 years as a juggler and balloon-animal maker!