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Have Yourself a Merry Mediation

Have Yourself a merry mediation
Settlement’s in sight
From now on
Our troubles will be out of sight

Have yourself a merry mediation
Enjoy the holiday
From now on
Our troubles will be miles away

Here we are as in olden days
Before a suit was filed
Back to those who are dear to us
A friend, a spouse, grandchild

No more years spent in litigation
We were smarter than
To throw our time and money in the garbage can
Because we had a merry mediation now

Happy Mediation Holidays

A MEDIATION CAROL
Sung to the tune of Jingle Bells
Mediate, Mediate
Mediate all day
Oh, what fun it is to see
The disputes go away
HeyMediate, Mediate
Make nice, it’s Christmas time
Or Hanukkah or Kwanzaa time
Remember this smart rhyme
Hey

Mediate, Mediate,
A way to bring folks peace
Your settlement agreement
Will be a masterpiece

HAPPY HOLIDAYS!

The Smartest Thing to Do in Mediation

W-A-I-T: these four letters remind you to ask yourself Why Am I Talking? Silence is often your most effective negotiation technique.
 

Silence has two big benefits
The first benefit of silence is to be better able to respond. Too many people come to mediation with their attitudes so entrenched that they don’t listen. You cannot successfully respond if you have not listened—really listened—to the opposing party.

Do not multi-task. During a remote mediation on your laptop, no one may be able to see you scrolling on your phone. But you are cheating yourself of the opportunity to collect information to help you conclude the case. You can miss something important if you’re not paying attention.

Lose the condescension. If you come to mediation with the attitude that your side is righteous and the other side’s views are valueless so you don’t have to pay attention to them, the initial obstacle to reaching settlement is yourself.

The second benefit is that if you just stay quiet, the other party may rattle off information to fill the silence void that damages their own case.

Listen First

Lawyers in particular are prone to thinking about what to say next instead of taking heed of what’s happening in the moment. It’s why they can miss asking the follow-up question a deponent’s answer should have prompted. And it’s why they ignore signals that would help them settle their case.

As your mediator, my job is to recognize those missed signals and follow up with the participants to facilitate settlement.

Horror Movie Season

Halloween skeleton

It’s horror movie season.

Maybe you like to get a good scare at the movies. That doesn’t mean your most challenging case should become a Halloween nightmare.

You know which are your ugliest cases. Those are the ones where mediation can really help.

You probably want to close those files before year-end. Finding a mutually convenient date for all participants can cause delay. Start the process to schedule mediation of those files now.

 

Remote Mediation Ethics

The COVID-19 pandemic has made many things about our jobs more difficult. And yet, there is a silver lining when it comes to case resolution.
 

The inability to safely congregate has compelled lawyers and claims professionals to turn to video mediation. Some were surprised to learn the benefits. Among these are that people are more relaxed in familiar environments; they feel more in control. Less stress results in better negotiation.

Pre-pandemic, the real decision makers often did not actively participate, instructing the attorneys, “Call me if something important happens.” These people missed getting the full picture. Now, there is no barrier (or excuse!) for parties who may be hundreds of miles away to actively participate. Again, the result is a better negotiation.

Lawyers must not shun mediating via remote technologies like Zoom. On the contrary, they have an ethical duty to master the technology. California Rule of Professional Conduct 1.1 imposes a duty of competence, which includes the learning and skill reasonably necessary to provide legal services. The rule specifies that if you don’t already have that learning and skill, go out and get it or hand the case off to someone who does. State Bar of California’s Formal Opinion 2015-193 addressed the question of technology competence in a case involving e-discovery. The opinion states: “An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.”

Of course, you will want to choose a mediator who is comfortable with remote mediation technology. One way for you to get comfortable with it is to ask that mediator for a free practice session.

Why Your Cases Aren’t Settling

Why aren’t your cases settling? In his book, How to Talk to Strangers, best-selling author Malcolm Gladwell explains that we normally DTT, Default-To-Truth, when we receive communication. When we default to lies instead of to truth, we undermine our ability to get to resolution.

The Litigation Defaults-To-Lies
In almost every facet of our lives, most people take information at face value until something convinces them otherwise. Actually, it’s the only way a society can survive. Unfortunately, though, Gladwell points out, our default to truth lets people like Bernie Madoff, Jerry Sandusky and simultaneous CIA analyst and Cuban spy Ana Belen Montes perpetuate their crimes. Evidence built up, but the people who received the information rationalized it away.

The other end of the spectrum is when a person suspects everyone of being a liar and treats them that way. Gladwell analyzes the 2015 Texas police handling of the Sandra Bland arrest. Officer Brian Encinia habitually stopped motorists on the thinnest, and sometimes manufactured, pretexts as often as multiple times per hour, an off-the-chart frequency rate. He then found reasons to escalate the situation. The “view everyone with suspicion” philosophy of policing originated as a response to crime in a tiny geographic area, but, Gladwell writes, went out of control.
Litigants are often in the default-to-lie camp. When an adjuster was told a claimant’s position on an issue, the immediate reaction without any further information was, “She’s a liar.” Many claims and litigation professionals default to fight every issue, even when that’s a losing argument.

Transparency is the term for another negotiating problem, though it might be better called non-transparency. Transparency assumes that body language reflects what is going on in a person’s mind. An early reaction to remote mediation was an objection to not being able to closely observe someone’s facial expressions and body language. Gladwell documents that we are all very poor at correlating those things, even judges who use observation to set bail and police officers who are trained in assessing facial and body signals.

We humans can have many things going on in our brains at the same time. A facial expression may reflect something going on that has nothing to do with that person’s interaction with us at that moment. What’s more, different cultural groups use and interpret body language differently. The face 91% of Spaniards identified as angry was seen that way by only 7% of people who lived in the Tobriand Islands in the Solomon Sea.

The Lesson

Even when you are sure your evidence unquestionably contradicts your opponent’s position, active listening with an open mind can efficiently lead to settlement. Defaulting to lies does not.

Business Interruption Insurance Coverage- News from the UK

It’s summertime, and temperatures are high. So let’s look at a hot insurance coverage issue: business interruption caused by the coronavirus.

 Do you know about the business interruption insurance coverage test case in progress in the United Kingdom? To create some consistency and avoid a litigation morass, the Financial Conduct Authority (FCA) has brought a test case, something like a declaratory judgment. The FCA regulates the UK financial services industry. Their work includes protecting consumers, stabilizing the financial services industry and promoting competition. Eight insurers have agreed to be bound by the test case decision. Some of those defendants, such as Zurich, Arch, and Royal & Sun Alliance, also do business in the United States. Also bound will be their managing agents and sales brokers and agents. Issues to be considered include what constitutes “property damage” under the policy and the effect of a pollution exclusion, the same issues coming up in lawsuits in the United States.

The outcome will be binding in the UK, but why should United States insurance professionals care?

Of course, the law applicable in the case jurisdiction controls, but this is a public, complex, deliberately considered judicial process interpreting policy language. Therefore, parties can expect other judicial bodies to take notice of it and find the outcome persuasive. To the extent that an insurer’s policy language is substantially similar across various countries, policyholders would reasonably expect their carrier to treat them equally, regardless of geographic location, assuming such an outcome is consistent with local law.
You can follow the proceedings at the test case official website and subscribe to updates.  Trial started on July 20 and at this writing is ongoing.

Align Thoughts, Words & Deeds to Get Results

Having trouble concentrating? Affected by shelter-in-place orders to contain the COVID-19, overlaid with curfews activated by civil unrest following the death of George Floyd? Join the club.

For some cases, nothing is urgent right now. It’s easy to leave those cases on autopilot.

What you focus on is what you get. If what you really want is to avoid the expense and stress that go with delaying case resolution, you need to align these:

Thoughts: Concentrate on one, just one, file and put together an action plan in your mind specifically what you can do right now to bring it to resolution. That may well be mediation. Do you really need that pending deposition when everyone knows pretty much what that witness will say? How about trying to resolve the case now without it?

Words: Document the plan, and communicate it to everyone needed to effect it. Tell your lawyer what you want to happen next. Contact opposing counsel to explain your plan. Set deadlines.

Deeds: Don’t slip back to inaction. Too many so-called action plans are never implemented. Calendar a follow-up date to make sure your plan is moving forward.

People prone to procrastination find that forcing themselves to action on one matter prompts them to tackle another and another. Taking ownership of a situation is challenging. It takes courage. It’s the way to get the result you want.

The Role of Empathy in Settlement

Empathy, the ability to see a situation from a different point of view, is an important negotiation and advocacy skill. You must be able to anticipate and understand your opponent’s position to effectively counter it. Debate trainers assign students to argue the position opposite their personal beliefs to foster this skill.
I’m Fine. To Hell With You
Lately we have seen a stunning lack of empathy in our country. On the same day as a county announced that COVID-19 had become the county’s leading cause of death, one resident yelled, “It’s my body and I want to go to work.” Another defiantly asked, “Why shouldn’t I be able to sit in a restaurant and eat?”

The answer is that many people, perhaps the majority, who are infected with the virus are asymptomatic. COVID-19, unlike collisions, drownings, obesity, heart disease, and cancer, is wildly contagious. There is currently no vaccine and no cure. More than 81,000 Americans have died. Around the world, people are not allowed to work in close quarters or sit in a restaurant because that potentially exposes coworkers, servers and other customers to the contagion. Not everyone reacts to the virus the same way.

Similarly, the television journalist who tweeted that anyone who wants to continue to shelter in place should just stay home lacks any awareness of how most people live. If the boss requires workers to show up or lose their jobs, those workers don’t have the luxury of working from home. There are more people living paycheck-to-paycheck to pay the rent and buy groceries than people pulling in big bucks.

And then there’s the 79-year-old Wisconsin Supreme Court Chief Justice who said “regular folks” were not getting COVID-19. Got that, anyone with a family member in a nursing home?

Negotiators need not have suffered a serious injury or business reversal themselves to empathize with someone who has. Perhaps you have had a personal experience which makes you wonder why your negotiating opponent is apparently so much less resilient that you. Again, not everyone reacts to an event the same way. An inability to concede that these are that person’s feelings, even if you think they are baseless, impedes meaningful settlement discussions.

Why Video Mediations Are Like Early Personal Computers

You may have heard the abbreviation RTFM. As soon as everyday consumers started using computers, telephone customer support staff had to field daily questions about the most basic functions. Perhaps the most infamous is about the user who insisted that a floppy disk drive (remember those?) was a cup-holder. What the tech people wanted to yell was, “READ THE F-ING MANUAL!” 

Read the Mediation Instructions
I send instructions to participants in every one of my mediations. Over time, these instructions have gotten so specific that they even include directions on what topics to include in the mediation brief.

For better or worse, I am no longer disheartened when it is painfully obvious parties have paid no attention to the instructions. We simply carry on.

Instructions for Video Mediations
Shelter-in-Place orders have drastically increased the use of video platforms for remote mediation. It’s really important to prepare for video mediation by READING THE INSTRUCTIONS. These include information about:

  • How to sign in
  • Acceptable remote locations
  • WiFi requirements
  • Device requirements
  • What happens if a computer goes down

Unlike with in-person mediations, failure to read video mediation instructions can prevent the mediation from going forward.

Courts may be closed, but the disputes go on. You can get those disputes resolved during a shutdown with video mediation.