Professional Background
I was a general litigation attorney before becoming a full-time neutral. During those years, I handled a wide variety of matters, from smaller tort motor vehicle cases as a “baby attorney” to employment discrimination, legal and medical malpractice, municipal liability, complex construction defect matters, wrongful death, and just about everything in between.
In Washington state, ADR is required before going to trial, so I attended hundreds of cases as a party advocate. I was fascinated by the process and by the skills that excellent mediators bring to that process. In 2006, I decided to enroll in a 40-hour mediation training at the University of Washington Law School and discovered that – although there is some amount of overlap – the skills required of a mediator are quite distinct from those of an attorney.
I joined the local trial court’s arbitrator roster to gain experience as a neutral, while also using some of the mediation skills I had acquired wherever I could: In client conversations, discussions and negotiations with opposing counsel, and even while taking depositions. I enjoyed the application of these skills so much that I took another 40-hour mediation training in 2011 with a local Dispute Resolution Center, completed a two-year practicum program, and volunteered as a mediator with any organization that would have me. This included two dispute resolution centers, the Federal Executive Board, the EEOC, and the City of Seattle. I joined the WSBA ADR Committee’s Executive Board, the NW Dispute Resolution Conference planning committee, spoke to former and new contacts to gain a better understanding of what it would take to be a professional mediator – and launched my full-time private ADR practice in 2014.
I am most proud of taking that leap of faith, as it has led me to a career that is deeply satisfying and resonates with my core values.
Path to Mediation
In my litigation practice, I often found that the legal process – which involves parties telling their narratives first to their friends and family, then developing it with the assistance of their attorneys, then defending it to the attorney taking their deposition(s), then repeating it to a judge and/or jury – serves to entrench positions, as well as emotions such as anger and frustration, rather than allowing for empathy and a broadening of perspectives. Even once their “day in court” finally arrives, and even if they “win” in court, many parties leave without a true sense of closure. Most parties never feel that they have been fully heard and understood.
My primary purpose in pursuing mediation was to hold a space in which parties can be heard by a neutral third party who approaches the conversation with empathy, active listening skills, and humility, in order to help them craft a future-focused solution that maintains their dignity and their sense of self-determination.
Role as a Neutral
I completed the AAA Higginbotham Fellowship in 2017, which endeavors to enhance diversity among the mediators and arbitrators serving on AAA panels. As a brown female neurodiverse immigrant myself, I tremendously value the AAA’s stated commitment to diversity and inclusion. I also believe that this commitment fosters parties’ trust in the AAA, as it is more likely to reflect the diversity of the AAA’s clients. The aspect of mediation that is most meaningful to me is the opportunity to allow parties to feel heard, allow them to access their underlying needs, and (ideally) allow all parties to feel that they have arrived at a durable solution that meets those needs. I do not believe in the old adage that “a good mediation is one in which everyone feels that they have lost”— because mediation allows for creative thinking, it is always my goal to help parties reach a resolution in which all or most needs are met.
Mediation Philosophy
I approach the mediation process with the philosophy that I am a guest at someone else’s conflict (Nina Meierding’s words, not mine). I do not and will never know the dispute as well as the parties, so it behooves me to create the time and space to listen to what they want to share.
I use a very facilitative approach during the first half of a mediation, in order to build rapport with parties, attorneys, and any other stakeholders, and in order to try to truly understand their needs. To this end, it is always my preference to hear from parties directly. Only once parties feel heard and I have a better understanding of their goals can I help them pivot from the past to the future.
I do so by asking parties to determine their priorities (what is a “need” versus a “want” or a “would like”), encouraging them to think about where there may be room for concessions, helping them assess their BATNA (best alternative to a negotiated agreement) and their WATNA (worst alternative to a negotiated agreement), and asking questions that assist them in crafting a thoughtful series of offers or demands.
Memorable Mediation Experiences
My most memorable experience occurred while conducting small claims court mediations as a volunteer for one of the local dispute resolution centers. The jurisdictional limit for these cases is just a few thousand dollars, but to the litigants, that amount can be very significant. Volunteer mediators were in the court room during “cattle call” and while the judge explained the mediation process. The judge then asked everyone who believed that they would win their small claims trial to raise their hand. Almost every hand in the courtroom went up. “Half of you are wrong,” said the judge. “I want you to go try mediation.” As a novice mediator, this was stunning – and stunningly effective. The vast majority of the cases we handled did in fact settle in the 30-45 minutes that were allotted to each mediation.
Advice to Advocates & Parties
Evaluate your case as objectively as possible. Be careful not to overestimate your chances of success or underestimate the costs and risks. It becomes far more difficult to resolve a case if you have to justify a negotiation strategy to your client at mediation that differs from your initial evaluation.
What are your and your client’s goals at mediation? This may include substantive, procedural, and/or relational goals. Set your mediation goals early, as they should and will influence timing of mediation, choice of mediator, and negotiation strategy.
Be thoughtful in your choice of mediator. Many attorneys default to “the usual suspects” when proposing or selecting a mediator. However, it is usually advisable to spend some time thinking about (and discussing with your client) what qualities would make a mediator appropriate for the specific case at issue.
Most jurisdictions require ADR before trial. As such, your preparation for mediation should begin when a case first arrives on your desk. However, here are just a few things to keep in mind once you have made the decision to schedule a mediation:
Be sure to engage your client in a thorough conversation about who the appropriate stakeholders are, and who should attend the mediation (in person, by phone, or virtually). Keep in mind that some courts require decision-makers to be present in person, unless there are exceptional circumstances, so this may be another item that requires early discussion.
Make a strategic decision about the roles of the attorney, the client, and anyone else attending the mediation. Are you comfortable allowing your client to speak to the mediator directly? Either way, make sure to have a conversation with your client about the division of responsibility in the mediation room.
In addition to the obvious discussion of settlement authority, revisit and fine-tune your negotiation strategy.
Consider mapping out your negotiation moves, so that you are not taken by surprise. You can always alter your strategy to fit the actual negotiations, but knowing your goal and how you are going to get there can alleviate much of the anxiety of having to make decisions “in the moment.”
Decide on a strategy when it comes to your mediation submissions – should you share some or all of your letter with the other side? This can be of great benefit, as it allows the other side to assess whether their positions and settlement authority will be adequate at the mediation table. One of the biggest mistakes you can make is to surprise the other side with new information at the mediation; without sufficient time to consult with necessary stakeholders, making the other side feel ambushed or tricked can result in a failed mediation.
Evolving ADR Landscape
Two things come to mind in answer to this question:
- The first is that Washington State is somewhat unconventional in that joint sessions are very uncommon. Most other states utilize joint sessions at a minimum for introductions or opening statements by the parties; not so Washington State, where parties often do not see each other at all during the course of a mediation. In my practice, and especially in cases in which the parties are likely to have an ongoing relationship of some type, I tend to look for opportunities for direct dialogue between the parties. I will never force this issue, but because my overarching goal is party self-determination, I believe that a direct conversation can often lead to more creative and more durable outcomes if that conversation is carefully structured and facilitated by the mediator. While joint sessions still do not occur frequently, I have found that parties will almost never refuse an invitation to consider it.
- The second is the use of pre-mediation calls between each party and the mediator. While this was uncommon even just a few years ago, I have always engaged in pre-mediation calls, in order to give attorneys the opportunity to get to know me if they have not worked with me before, allow them to ask me questions about my mediation style and philosophy, and give me a sense of the case and how best I can help the parties achieve their goals. This pre-mediation contact appears to be becoming much more standard, and I strongly encourage parties to take advantage of the opportunity to speak to their mediator before the mediation session (or to request such pre-mediation contact if it is not automatically offered).
Personal Qualities & Skills
Patience, humility, empathy, and the ability to listen with the intent to understand (rather than to respond). I tend to tell people that, while I am very good at what I do, all those qualities seem to vanish when I am in an argument with my spouse!
In a culture that is largely conflict avoidant, it is extraordinarily difficult to skillfully engage with personal conflict – but a skilled mediator can bridge that gap. Parties generally want to feel heard, understood, and respected, and most want to maintain some sense of control. In order to provide this, a mediator must be able to allow parties – and attorneys! – to tell their story (patience), validate their feelings (empathy), and refrain from making assumptions (humility), while also gently probing for strengths and weaknesses, underlying needs, and both negotiable and non-negotiable items.
I have cultivated these skills by always maintaining a learning mindset: Every case teaches me something. Every lecture or presentation I attend provides nuggets that I can utilize in my mediations, as does every interaction with attendees when I am presenting. Fellow mediators from a wide variety of different backgrounds bring perspectives that enhance my own practice.
Beyond Mediation
My greatest passion is dog training. I am a certified service dog trainer and recently completed a rigorous 6-month professional animal trainer program with Karen Pryor Academy, which is generally accepted as the gold standard in science-based positive reinforcement training in the U.S. I am also a volunteer and board member at Atlas Assistance Dogs, which helps owners train their own dogs as service dogs; Atlas recently received its Assistance Dogs International accreditation, which is a huge milestone. And I started a dog training business (Sound Service Dogs) on the side this summer.
Resume
For more information on Sasha Philip's professional background, view her resume.