Neale T. Johnson began life after college as an artillery lieutenant in the Marine Corps, where he learned about discipline, tenacity, and leadership from the best. When the time came to reenter civilian life, he pursued a law degree because he expected civil practice to be the civilian version of military service. He was surprised to discover that law was nothing like the Marines. Instead of firing artillery, he was firing off memos. Instead of being a roguishly handsome global warrior of the sea, he was a peacemaker. Johnson 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?
As an advocate, I have handled hundreds of mediations over the arc of my career. Over time, I came to realize that many civil disputes could be resolved if the parties had the right help when it came to communicating with each other. I came to realize that my clients hated litigation. It was expensive and distracting; the only person having fun was me. Even then, I had begun to focus on early dispute resolution and preserving business and personal relationships rather than scorching the earth in the courtroom.
Friends who knew me better, perhaps better than I knew myself, suggested I get certified as a North Carolina Superior Court mediator. I completed the mediation certification process in 2014 and have been mediating cases ever since. Helping parties resolve disputes and preserve relationships is one of the most rewarding aspects of my career.
The AAA was a natural fit for me. The AAA is the primary arbitration organization in North Carolina generally and is particularly prevalent in construction cases. I value my being a member of the AAA roster because it is the premier ADR organization in my jurisdiction. I’m proud to be a part of it and believe in its mission.
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?
Most of the AAA mediations I have handled are early mediations before litigation or arbitration has commenced in earnest. I value the AAA’s focus on giving the parties an opportunity to resolve the case before they spend the time and energy associated with the litigation or arbitration path. Parties are always surprised and relieved when they are able to resolve a case without having to complete an arbitration or trial. They come in imagining that they could never reach an agreement with the other side, and when they reach a settlement, you can see the tension drain away as they breathe again.
How has your previous experience as an attorney, arbitrator, judge, or in another professional role shaped your approach to mediation?
As an advocate, success in the courtroom is largely a matter of preparation and simplifying complex things to tell a compelling, accurate story that speaks to the decision-makers. Success is also a function of refusing to give up; the tenacity I learned in the Marines pairs well with the practice of mediation. A mediator needs the patience of Job to get through the phase of the settlement conference when resolution seems impossible. As a mediator, I bring the same level of preparation and tenacity to the settlement process that I brought to court cases as an advocate. Preparation means painstakingly laying out the groundwork for a productive conference before the parties meet.
How do you approach the mediation process, and what strategies do you use to help parties move from conflict toward resolution?
I begin by reading critical documents in a case. During scheduled virtual pre-mediation conferences with counsel for the parties, counsel teaches me the issues in the case, and we have a chance to discuss the arguments (factual and legal) they are making. They also have an opportunity to tell me how I can help their clients understand the issues. During this time, I begin to “imagine” what a settlement might look like and how to structure it.
When we have the conference, the parties do not need to educate me about the case, and we get right to work. They also have confidence in what I tell them because it comes from having learned the case in advance. I spend time listening to the parties, ensuring the parties are working from a common set of facts, and then helping them get to a point at which they understand what is possible through mediation. Armed with that information, they can make decisions about whether they prefer what’s possible through mediation or the outcome that may result from a trial or arbitration.
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
Almost always, the most rewarding moments in mediation come at the point where the parties have learned something through the mediation process that affects their perceptions of risk. In one recent matter, a party from another jurisdiction was unaware that a “pay-if-paid” provision in its subcontracts was unenforceable in the jurisdiction; if it lost the upstream case, it might still have to pay its subcontractors. Once that point became clear in the room, the parties were in a position to compromise. Had we not done the preparation—reading the contracts and analyzing the case with the lawyers beforehand—we would never have uncovered that issue as an obstacle to settlement, and the case would have continued to trial.
Have you noticed any trends or shifts in the use of mediation, the types of disputes, or in parties’ expectations in recent years?
Mediation has become the primary means for resolving civil disputes in North Carolina. This has fundamentally altered the thinking of a generation of lawyers. We adopted mediation broadly because advocates were struggling to resolve cases before they expended enormous resources to get a case to trial, only to realize at the courthouse steps or during the trial that the case could be resolved. That trend has continued.
Which skills or qualities do you believe are most essential for a successful mediator, and how have you cultivated them?
Careful preparation and tenacity are critical to building the parties’ confidence in the mediator, but so are soft skills like active listening, empathy, and the ability to communicate honestly with the parties about what they can and cannot accomplish in the mediation context. Creativity and imagination are also important. One of the mediator’s most important jobs is to imagine what’s possible in mediation and to help the parties see that vision themselves. If they see it and still prefer trial, the mediator has done his or her job.
Outside of your professional work, what activities, causes, or passions are important to you?
I’m passionate about educating and developing the next generation of young lawyers. I taught trial practice and pretrial practice as an adjunct professor of law for many years. I also care deeply about safe, affordable housing and have been involved with Habitat for Humanity for many years.