Kyle McCartney Pennington draws on many years of litigation and jury trial experience representing both plaintiffs and defendants in state and federal criminal and civil matters. Motivated by a desire to help parties avoid the cost, risk, uncertainty, and emotional toll of litigation, he transitioned his extensive courtroom experience into mediation. He has mediated a wide range of civil disputes, many involving cases headed for jury trial, helping parties engage in open, confidential discussions and exercise self-determination to resolve their disputes rather than leaving the outcome to a judge or jury. Pennington discusses his approach to mediation.
What motivated you to pursue mediation, and were there personal influences or professional experiences that shaped your path to joining the AAA?
I was very fortunate to have litigated on both sides during my career and had the opportunity to watch some very fine mediators assist my clients and opposing parties in reaching beneficial settlements and avoiding the pitfalls of trial when compromise is possible. The longer I practiced, the more valuable mediation became to me as a lawyer. I decided that I wanted to use the experience I had gained to emulate those mediators whom I respected and valued.
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?
AAA provides the structure and support for mediators, attorneys, and their clients to enable them to focus on the core benefits of mediation: open communication, confidential sharing of ideas and viewpoints, and the exercise of personal decision-making. When all parties commit to the process and can see the shared humanity and individual agency that go with it all, great things can happen.
How has your previous experience as an attorney, arbitrator, judge, or in another professional role shaped your approach to mediation?
My time as a trial attorney taught me how to calculate risks and understand the realities of litigation and jury verdicts. My experience as both a defense attorney and a plaintiff’s lawyer gave me an understanding of the differing perceptions of a dispute, as well as the differing pressures and concerns of counsel.
How do you approach the mediation process, and what strategies do you use to help parties move from conflict toward resolution?
I try to help the parties focus less on their perceptions of the strengths and weaknesses of their legal positions and more on the perspective of the other parties as it relates to the dispute. Once this occurs, it is easier for the decision-makers in the dispute to feel comfortable entertaining ideas and offers and exercising the self-determination at the core of it all.
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
When I am appointed by the Court to mediate a dispute where a party is pro se and indigent, and I receive an email or letter expressing how much they appreciated the process and felt heard for the first time, it reminds me how important the process is and how, as a mediator, you are part of what could be that person's most important day.
Have you noticed any trends or shifts in the use of mediation, the types of disputes, or in parties’ expectations in recent years?
My experience in mediation as a litigator began in the pre-COVID, in-person era and moved into the virtual world. Whether it is Zoom, Teams, or some other platform, the technology has been a net positive for litigants, attorneys, and mediators. It allows for more scheduling and appearance flexibility. There have been adjustments, but as someone who occasionally handles in-person mediations, I have found that there is little difference in the most important aspects. Because of the flexibility in scheduling and party location, more pre-suit mediations are emerging, and mediations that may need to be adjourned and continued are much easier to schedule and resolve.
Which skills or qualities do you believe are most essential for a successful mediator, and how have you cultivated them?
Patience, respect, affability, and candor are essential attributes for a mediator. I strive to have enough self-awareness and humor to realize that I am far from perfect. Knowing that goes a long way toward keeping me focused on exhibiting those mediator qualities, which are just as important outside of mediation.
Outside of your professional work, what activities, causes, or passions are important to you?
I enjoy literature, music, welding for fun, and athletics. I am a brown belt in Brazilian Jiu-Jitsu and train in Judo. All these activities keep me motivated and train me to focus on what is in front of me.