Marilyn Klinger has over 45 years of construction trial work, focusing on contractual disputes, involving all players on a construction project — owners, general contractors, specialty trade subcontractors, CMs, and sureties.
Read on as Klinger discusses his approach to mediation.
Q: What motivated you to pursue mediation, and were there personal influences or professional experiences that shaped your path to joining the AAA?
Klinger: Mediation (and arbitration) is a natural progression from being a construction trial attorney to servicing all of the players and their attorneys in alternative dispute resolution, particularly pre-trial/evidentiary hearing. AAA was always the tribunal I looked for that alternative dispute resolution so, again, the natural path for my mediation and arbitration practice.
Q: 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?
Klinger: The AAA is the premiere alternative dispute resolution tribunal such that serving as a mediator for the AAA is an honor. I am a mediator that serves the parties who mediate by getting settlements. As I say, none of the parties are my clients; the settlement is my client.
Q: How has your previous experience as an attorney, arbitrator, judge, or in another professional role shaped your approach to mediation?
Klinger: After having participated in too many mediations to count as an advocate for the parties, my approach to mediation is extremely pragmatic. Construction disputes are more geared to evaluation of entitlement and dollars--not as much emotion and apologies. That focus suits my skill sets and personality.
Q: How do you approach the mediation process, and what strategies do you use to help parties move from conflict toward resolution?
Klinger: I typically hold a joint session so that counsel and the parties can exchange information in order to gain a more fulsome picture of the facts and better understanding of each other’s points of view. I also encourage an exchange of mediation statements with opposing counsel and a short private statement containing more confidential information and items that are important for me to navigate the mediation process. My approach to mediation incorporates elements of both facilitative and evaluative mediation techniques. I enjoy a high success rate in my mediations.
Q: 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
Klinger: The parties in one mediation appreciated that I prepared a spreadsheet for each individual claim and defense, and described the pros and cons of each, identified the disparities, strengths, and weaknesses in the parties' positions and then set forth a compromise number that made sense.
Q: What advice would you give to advocates or parties preparing for mediation—whether in terms of mindset, process, or practical preparation?
Klinger: Prepare, prepare, prepare. Let the mediator know if the parties are really not interested in settling or prepared to settle the dispute, i.e., if they are proceeding because the contract or a court required them to mediate, or if the parties do not know the other side's case or, for that matter, their own case such that some discovery, formal or informal, is needed before a resolution is even possible. I can help devise a plan that is efficient and less expensive than full litigation, and that sets them on a path to get the matter settled once that plan is executed.
Q: Have you noticed any trends or shifts in the use of mediation, the types of disputes, or in parties’ expectations in recent years?
Klinger: Mediation has become less effective for some reason in the sense that the one- or two-day mediation itself does not seem to result in settlements as frequently, as it often takes quite a bit of follow-up, particularly by the mediator, to get matters settled.
Q: Which skills or qualities do you believe are most essential for a successful mediator, and how have you cultivated them?
Klinger: Active listening is one key skill for successful mediators. Also, being more than just a messenger, relaying offers and counteroffers. As one mediator has noted, quoting from Brendan Sullivan's famous quote while defending Oliver North during the Iran-Contra hearings, "I am not a Potted Plant. A successful mediator needs to interject his or her thoughts as to the merits of the parties' positions, but also not focus on the parties' positions but on the parties' interests, which could be very different.
Q: Outside of your professional work, what activities, causes, or passions are important to you?
Klinger: I am an avid reader and love golf. My retirement give-back activity will be volunteering for Project Literacy or similar program that teaches people for whom, while English is their native language, have not learned how to read. I am active in my law school alumni activities and, believe it or not, am enjoying my board participation in two condominiums.