Berman - Impasse is a Fallacy

© 1994-2014 The Mediation Alliance, Inc. & American Institute of Mediation

October 8, 2014 Cincinnati, OH

2014 Annual Conference

IMPASSE IS A FALLACY An Advanced Mediators’ Forum with Lee Jay Berman

© 1994-2014 The Mediation Alliance, Inc. & American Institute of Mediation 1

ABOUT THE PRESENTER

Lee Jay Berman Mediator

Lee Jay Berman began as a full-time mediator over 20 years ago, and has successfully

mediated over 1,900 matters. He is a national panelist with the American Arbitration

Association, a Distinguished Fellow with the International Academy of Mediators, a Charter

Diplomat with the National Academy of Distinguished Neutrals, he was one of the first five

U.S. mediators internationally certified by the International Mediation Institute, and he serves

as a Dispute Resolution Expert with the United Nations Development Programme. He was

Mediator of the Year for the US Bankruptcy Court in California, California’s Daily Journal

twice named him “Top Neutral”, Acquisition International Magazine awarded him “Mediator

of the Year – California” in 2012-2014, and he has been voted by his colleagues into the

Who’s Who of International Commercial Mediation in 2012-2014.

Also a respected trainer, he founded the American Institute of Mediation, leaving his position

as Director of Pepperdine Law School's Mediating the Litigated Case program after seven

years. In addition to lecturing and training at Pepperdine, he has also lectured and trained at

Southwestern Law School, University of Texas, Southern Methodist University, Cal-State

Northridge, Lipscomb University and Bond University in Brisbane, Australia. Lee Jay has

trained judges, attorneys and business leaders in India, Australia, Europe and the Middle East.

As an author, he has published numerous articles on mediation, negotiation, and ADR, along

with his blog Eye On Conflict, and the ABA will be publishing two of his books in 2014.

Lee Jay can be reached at (310) 478-5600 or [email protected]. Additional

information is available online at MediationTools.com.


Impasse is a Fallacy Only those who believe in it fall prey to its trap

By Lee Jay Berman

I often wonder who invented the concept of impasse. Who first said, “We are stuck. We

cannot go any further.”? Who decided that we should give it a name, acknowledge its

existence, and make it the scapegoat for all that goes wrong with a mediation or

negotiation?

My guess is that it was the first mediator who had run out of tools. With imagination

exhausted, someone threw their hands into the air and declared the negotiation over and

decided it was time to send everyone home, declaring an impasse and deeming the

mediation process, not just the session, to have failed.

For negotiators to declare impasse can make sense, if you think about it. The goal in

negotiation, after all, is to win. And the threat of impasse can sometimes be an effective

tactic in achieving that goal. Commercial mediators, however, are hired to settle cases.

In this world, impasse is a bad word. Moreover, I think it is a fallacy.

Achieving resolution, by definition, means either avoiding or breaking impasse. If an

impasse can be broken, then it was not really an impasse. It was something else. But

mostly, it was a dare. It was a temptation for the mediator to buy into the bluff that things

were stopped dead in their tracks and it was time to give up.

Before examining the notion of impasse more closely, it is important to take a step back

and realize that reaching successful resolution in mediation (i.e. avoiding impasse) begins

at the very beginning of the mediation process, with convening, and continues until the

agreement is signed. Furthermore, if a mediator’s success can be defined by a successful

outcome (which may oversimplify the entirety of the mediator’s role, but ultimately is the

primary goal in commercial mediation), then the mediator is responsible for managing

every step of the process with an eye toward anticipating and avoiding the potential for an

impasse later in the mediation.


Stages of the Mediation Process

In order to dissect the mediation process and to search for ways that mediators can make it more

productive and avoid impasse more routinely, we are going to break the process down into five

stages. Recognizing that mediators are trained in various different models, your training may have

relied upon a different organization of the process (perhaps joint session and caucus, etc.). The

purpose of this exercise is not to hold any one model as a correct way, but rather to give us, for the

purpose of this program, a unified way of looking at the stages so that we are all on the same page.

For our purposes, we have divided the process as follows:

STAGE INTENT MISSION

CONVENING Get them _____________________ Goal: ______________

INTRODUCTION Get them _____________________ Goal: ______________

COMMUNICATION Get them _____________________ Goal: ______________

NEGOTIATION Get them _____________________ Goal: ______________

CLOSING Get them _____________________ Goal: ______________

For our purposes, Convening will mean all of the things that we do in advance of the mediation date,

prior to the parties ever setting foot into the mediation.

Introduction is where the mediator, in some configuration (joint session, caucus, waiting room, etc.),

introduces himself or herself to the participants and describes the process, sets the tone and generally

kicks off the mediation.

Communication is the stage where the parties talk about and discuss (either with each other or with

the mediator) their perspectives on things, both the case and the emotional impact of it, underlying

interests, goals, needs, and wants.

Negotiation is the stage where settlement discussions are happening. Clearly, this can overlap with

the Communication stage.

And Closing is getting it all wrapped up, making good, informed decisions, and either documenting

an agreement or deciding on a next course of action.


THE RISKIN GRID

Designed by Professor Len Riskin when he was at University of Missouri, Columbia

Retired

Judges

Psychologists

Directive

Broad

Facilitative

Narrow


Quick Quiz:

What’s Good about working more Narrowly? What’s Bad about working more Narrowly?

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What’s Good about working more Broadly? What’s Bad about working more Broadly?

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_____________________________________ ____________________________________

What’s Good about being Directive? What’s Bad about being Directive?

_____________________________________ ____________________________________

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_____________________________________ ____________________________________

_____________________________________ ____________________________________

What’s Good about being Facilitative? What’s Bad about being Facilitative?

_____________________________________ ____________________________________

_____________________________________ ____________________________________

_____________________________________ ____________________________________

_____________________________________ ____________________________________

Other Thoughts: ________________________________________________________________

______________________________________________________________________________


Roadblocks to Settlement

(a.k.a. Causes of Impasse)

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____________________ ___________ _________ ____________________

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CONVENING

How to Avoid Roadblocks During the CONVENING Stage of Mediation

List the roadblocks we see that could be prevented before the day of the mediation:

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

These are some roadblocks that counsel report before the day of the mediation:

Mediator didn’t read the briefs.

Mediator didn’t reach out to talk to me in advance.

Mediator wasn’t clear on the time expected of my client and me.

Mediator didn’t give enough notice when asking for advance fees.

Mediator didn’t confirm firmly, so opposing counsel claimed scheduling problem day before.

Mediator didn’t listen to counsel about location and insisted on their own (inconvenient) office.

Mediator was assigned and didn’t have online CV.

Mediator scheduled the mediation before we had adequate discovery.


CONVENING

Impasse often occurs because the right people are not in the room. Effective convening by the mediator – asking a lot of questions and being unafraid to push to better understand all of the dynamics of the negotiation – can avoid this reason for impasse. Mediations can sometimes end abruptly when one participant has a time constraint. This can sound like, “It’s 3:30 and I have to pick up my kids” or “I never thought it would last this long.” This can be avoided by the mediator communicating to the parties his or her expectation about time availability. Good mediators ensure themselves an ample window of time, and mange the parties’ expectations so that they do the same. Another line that mediators often hear is, “That is all of the authority that I have.” This is something that needs to be discovered during convening. Mediators need not be afraid to ask questions about authority and understand as much as possible about which individuals need to be involved in the ultimate settlement of a case. This is also the point in the mediation where arrangements need to be made (negotiated) for telephone availability of any decision makers who will not be in attendance. The common mistake is to try to arrange this at 5:00 p.m. on the day of the mediation as people are leaving their offices for the night. What is worse, is that 5:00 p.m. on the east coast occurs in the mid-afternoon in the western states. It is the mediator’s job to work this out, to the greatest extent possible, during the convening stage. Preparation. Preparation is critical to avoiding impasse, but in addition to the mediator, the lawyers and the parties must all be adequately prepared in order to reach a settlement. Each person needs to know enough about the case so that they can analyze settlement proposals and make informed decisions. Failure prepare, and failure by the mediator to attempt to ensure that the participants do their preparation, leads to an impasse that ends with, “We just don’t know enough.” While informational impasse can be avoided by preparing adequately, and having the mediator facilitate the exchange of information prior to the mediation, it is part of the commercial mediator’s role to help the parties stay on a settlement track and continue preparing for a return to mediation, rather than leaving with the idea that the mediation process has failed, and returning to the litigation preparation track. Should this informational objection occur, the mediator has a responsibility to the parties to help them figure out exactly what critical facts they need to discover or what elements they need to research so that they will know enough to make an informed settlement decision. This level of preparedness varies greatly from defining what discovery is necessary to prepare for arbitration or trial. Sometimes this means a little bit of extra, key written discovery. Other times it means another deposition or two to help figure out what key witnesses or experts will say. Once these items are agreed upon, then the mediator must turn the discussion to time, and how much time is necessary to complete this specific discovery and process it with decision makers (including insurance claims management, if necessary). The mediator and parties are then ready to agree upon a date to return to mediation to continue their settlement negotiation. The mediator’s role never changes, regardless of what stands in the way of agreement. The mediator simply continues to facilitate agreement between the parties with an eye toward eventual settlement.


What are 10 things that you are going to commit to do to avoid these roadblocks and others before the day of the mediation?

1. ______________________________________________________________

_____________________________________________________________

2. ______________________________________________________________

___________________________________________________________________________

3. ______________________________________________________________

_____________________________________________________________

4. ______________________________________________________________

_____________________________________________________________

5. ______________________________________________________________

_____________________________________________________________

6. ______________________________________________________________

_____________________________________________________________

7. ______________________________________________________________

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8. ______________________________________________________________

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9. ______________________________________________________________

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10. ______________________________________________________________

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INTRODUCTION

How to Avoid Roadblocks During the INTRODUCTION Stage of Mediation

List the roadblocks we see that could be prevented during the mediator’s introduction:

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

These are some roadblocks that counsel report during the Introduction Stage:

Mediator didn’t do one – never explained the process to my client.

Mediator didn’t invite the parties (clients, real parties in interest) to speak.

Mediator asked the parties to speak in joint session without warning us she was going to do that.

Mediator didn’t ever talk to my client, so my client never trusted him.

Mediator didn’t confirm the time expectations, so the other party left when the negotiations got tough.

Mediator didn’t tell us that there wouldn’t be a lunch break.

Mediator didn’t prevent other lawyer from interrupting him or me during our openings.

Mediator called us together into a joint session without asking first and my client was furious!

Mediator spent the whole time talking about himself and his resume.

Mediator never said how long to talk, so the other lawyer went on forever about his case.

Mediator set it up like a turn of the century dual between the lawyers – she may have well said

“En Garde!” or “Take 20 paces and come out firing!”


INTRODUCTION

From our 40-hour basic training manual: “Although you may have explained mediation to the participants before the session, you should assume that there is still confusion about what actually happens in a mediation session. It is important to take the time to carefully explain what mediation is, what procedures you will follow, and what expectations you have of the participants. Be conscious of your tone of voice, body language and eye contact because the participants will be watching you and trying to decide if they can trust you. You must balance between building rapport and a firm tone of authority. Every introduction should include: [and it lists the components of a successful mediation].”

At the basic level, we teach new mediators that an effective introduction is like walking down a

hallway with the participants and closing all of the escape doors along the way so that the only

way they have out of the hallway is through the opening at the far end, which is resolution. Exit

doors could be marked “I just remembered I have to pick the kids up.” or “my flight leaves in an

hour.”

If this represents a basic-level introduction, more experienced mediators do much more with their

introduction than simply explain the process and lay down behavioral ground rules. Some of

those things include modeling the appropriate or preferred tone, using the confidentiality

discussion to foster confidence in the mediator and the process, demonstrate optimism and create

a self-fulfilling prophecy around reaching an agreement, describing the appropriate role of

counsel in a mediation, reminding them of their interdependence and that the other people hold

the very thing that they have come to the mediation seeking, and lightening the mood.

Masterful mediators are getting and taking in as much information as they are putting out during

the introduction. Masterful mediators are reading the room for body language, eye contact, facial

expressions, learning modes (Neuro-Linguistic Programming), they are mirroring body language,

threading their talk with visual, auditory and kinesthetic vocabulary and movements and voice

tone, and they are setting the energetic level in the room. By connecting at a deep, even

subconscious level with participants, and creating a safe space for them to be in the same room,

and re-aligning their paradigm and their expectation in relation to working together vs. arguing

against each other, the masterful mediator takes a much stronger and more complete hand in

setting the intention in the room and generating a shift in the participants’ behavior and approach.

An introduction delivered masterfully can completely change what comes next in a mediation.

Does yours?

I

N

T

R

O

D

U

C

T

I

O

N

Time Authority

Confidentiality

Caucus Voluntary

Tone


What are 10 things that you are going to commit to do in your Introduction

to avoid these roadblocks and others?

1. ______________________________________________________________

_____________________________________________________________

2. ______________________________________________________________

_____________________________________________________________

3. _____________________________________________________________

_____________________________________________________________

4. ______________________________________________________________

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5. ______________________________________________________________

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6. ______________________________________________________________

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7. ______________________________________________________________

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8. ______________________________________________________________

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9. ______________________________________________________________

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10. ______________________________________________________________

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COMMUNICATION

How to Avoid Roadblocks During the COMMUNICATION Stage

List the roadblocks we see that could be prevented during the Communication Stage:

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

These are some roadblocks that counsel report with the Communication Stage:

Mediator didn’t have control of the room. May as well have been a potted plant.

If I wanted to argue my case with opposing counsel, I wouldn’t have had to pay a mediator.

Mediator didn’t listen. The mediator kept interrupting my client.

My client didn’t like being in the same room as her opponent. Joint session is intimidating for

the clients and I don’t like all of the posturing.

If opposing counsel is going to put on a dog and pony show, I’d like to know ahead of time.

The mediator jumped right past the case facts and into the negotiation.

Mediator talked to my client like this was therapy. How is that supposed to help us get it settled?

Mediator tried to make me look bad in front of my client.

I hate arguing my case with someone who is unarmed (doesn’t know the case as well as I do).

Mediator was just their mouthpiece.

My client didn’t trust the mediator.


COMMUNICATION

Impasses that simply cannot be explained often occur due to a failure during the communication

stage. Simply stated, the mediator may not have discovered or addressed a party’s underlying

interests. When parties have underlying interests or emotional barriers to settlement, it is common for

them not to know what is keeping them from settling. Impasses that result from emotions or unmet

underlying interests sound like, “I just don’t know. I just know it’s not enough.” or “I just don’t

understand why I need to pay that much.”

A good mediator knows that this can be the cue to revisit the underlying interests and the emotional

resistance – the feelings that are keeping one person from reconciling themselves with the difficult

decision that needs to be made. These feelings be as straight forward as greed, revenge or ill feelings

toward or about the other person, or they can be more subtle and complex, such as unwillingness to

let go of a conflict and move on with life, unwillingness to let go of a relationship – such as it is –

with the other person, or feeling that they are not being made whole for the pain or suffering they

experienced (i.e. no amount of money can make them whole or restore what has been lost). These

feelings need to be uncovered and addressed by the mediator early in the mediation and dealt with

then, in order to avoid them getting in the way of a settlement in the later, more stressful stages. Most

people attach emotions to conflict and need to reconcile themselves with letting go of those emotions

before they can resolve the dispute.

Another emotional objection to settlement can be inexperienced participants (and even counsel) who

fall in love with their cases. The best analogy is when a person sells their home. They love their

home and think it is worth a lot of money because they believe it to be special and unique. However,

they have to sell it in a marketplace that is well established, and that values it based on how it

compares to other, similar houses. And, it never compares as favorably in an objective marketplace

as the owner thinks it should. Enter the Realtor, who is supposed to give the seller a more objective

opinion of value, but who has the incentive to stretch the valuation more toward the seller’s in order

to win the competition to list the house and have a happy seller, and ensure that the seller knows that

the Realtor is on his or her side. However, in the end, the actual value of the house is only that which

a buyer will actually pay for it in a market where there are other comparable houses available.

Lawyers and clients who fall in love with their cases, and who lose the ability to see them through

objective eyes have to be reminded of the context in which they are attempting to place a value on the

case. T context is an informed marketplace where most cases can be measured objectively, and

where comparable cases can anchor their value to a norm which theoretically reflects a value based

upon what a judge or jury would do, and what risks there might be at trial. Most mediators can talk

about the risks at trial, point out the weak points in a case, and discuss costs of litigation. A good

mediator must also bring those people back to reality by reminding them of this objective marketplace

in which this negotiation is occurring, and what that market will bear.

Finally, underlying interests can be non-emotional. For example, they can relate to finances or other,

more tangible issues. Answers to these concerns, once uncovered, can sometimes take the form of

payment terms or structured settlements. The mediation process can become very flexible and

creative, but only once the parties’ real interests are uncovered. However, creativity in mediation

should be purposeful and in direct response to a party revealing an underlying interest.


Mediation

Mediation Communication is not a chess match! (It’s about understanding, not winning!)

Don’t play, “Yeah, but…”

“Sometimes, in order to understand what is really going on, we have to let things get a little out of control”

- Lee Jay Berman


What are 10 things that you going to commit to do to avoid these roadblocks

and others in your Communication Stage?

1. ______________________________________________________________

_____________________________________________________________

2. ______________________________________________________________

_____________________________________________________________

3. _____________________________________________________________

_____________________________________________________________

4. ______________________________________________________________

_____________________________________________________________

5. ______________________________________________________________

_____________________________________________________________

6. ______________________________________________________________

_____________________________________________________________

7. ______________________________________________________________

_____________________________________________________________

8. ______________________________________________________________

_____________________________________________________________

9. ______________________________________________________________

_____________________________________________________________

10. ______________________________________________________________

_____________________________________________________________


NEGOTIATION

How to Avoid Roadblocks During the Negotiation Stage

List the roadblocks we see that could be prevented during the Negotiation Stage:

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

These are some roadblocks that counsel report during the Negotiation Stage:

Mediator gave their opinion of the case without us even asking.

Mediator gave us their evaluation too soon – didn’t really understand our argument yet.

Mediator seemed to have an agenda – his. (settlement without regard to my client, our case, or me)

Mediator seemed to be beating up on us and not making much progress with the other side (or

maybe beating up on us because she wasn’t making much progress with the other side!)

Mediator just argued the other side’s case to me. Did she think I didn’t read their brief?

The other side started too high and the mediator didn’t seem to do anything about it – literally shrugged!

It took until 3pm before we started making any real progress.

The mediator should have leaned on both of us harder.

The mediator didn’t believe it when I told him that was all we had.

My client needed to hear the gospel and the mediator wouldn’t give it to them.


NEGOTIATION

Most of the rest of the reasons for impasse occur as a result of the negotiation process. The primary

reason for impasse here is the mediator buying into the bluff. When one party says, “That is our

bottom line”, what they often mean is that they have not yet been convinced, or given enough

information, to change that final position. That statement is heard by the seasoned mediator as,

“Knowing what I know now, about the case and about the other party(ies), I am not willing to move

from this position.” It might also simply be a negotiation tactic to attempt to scare their opponent.

The first thing that seasoned mediators know is that the negotiation stage of the mediation begins

during the convening stage, as we negotiate together who will attend, when and where the mediation

will be held, and what authority will be needed in the room to bring about a complete settlement, and

the negotiation continues until agreement is signed. Experienced mediators see every demand by a

party, even as early as the convening stage, as a negotiation strategy.

What can be learned from this perspective is that a “bottom line” is usually just another strategy in the

negotiation process. This is not to say that people are not being truthful when they announce a

bottom line. Sometimes they are. This is not to say that mediators should not believe people when

they say that a particular number is a bottom line or best and final offer. The seasoned mediator

knows that this means that this is how they are evaluating the case under the present circumstances as

they see them. The key to working through this barrier is to help them see things a different way.

While everyone in the room may be responsible for knowing, understanding and discussing the facets

of the case (facts, law, cases, legal climate, and settlement marketplace), there is only one person in

the room who is responsible for the big picture. That is the mediator.

The reason that the mediator is in sole charge of this is simple: behaviorists would say that the other

participants are in a state of conflict. When people are embroiled in a conflict, their stress level is

high and they tend to put blinders on, looking at nothing but the conflict. They can lose their

peripheral vision which would otherwise allow them to see how this litigation or conflict fits into

their everyday lives, their time, their budget, and their stress level. In days of old, attorneys were

removed enough to give their clients this perspective. Today, some still are. But today’s legal

marketplace can demand that attorneys become just as embroiled in the case as their clients are.

What some lawyers gain in intimate knowledge, passion and advocacy effectiveness, they can lose in

their ability to remain detached and able to see the big picture. The mediator is hired to be the one

who is not in a state of conflict, and who is charged with remaining clear and mindful of the big

picture, and helping the participants remain that way, too. Some mediators call it going to the

balcony. I think one needs a larger perspective than that. A good mediator needs the ability to see the

big picture of the case, the negotiation, and the big picture of the parties’ lives and how this case

impacts them, their families and their businesses. Injecting this perspective is one way that a case can

be made to look different.

The key to the mediator helping the parties avoid most negotiating impasses is for the mediator to see

them coming. This is the other reason it is critical for the mediator to have a perspective of the

negotiation that more resembles that of a helicopter at 5,000 feet. If the negotiation steps by each

party are not going to lead to a point of intersection or agreement, the mediator has to see this by the


third or fourth move and help to choreograph the negotiation to foresee the potential for impasse and

avoid it well in advance.

Mediators can only do this if they understand the science of the math in a negotiation. Each number

telegraphs a message. While the mediator should be carrying more than just a number from one

caucus room to the other, there is still much more going on in the mediator’s mind – namely

calculating whether the parties are on track to get to an agreement. The mediator must have his or her

eye on the finish line at every moment of the process. That finish line, of course, is an agreement

containing all parties’ signatures. Remember, the deal is not done when there is agreement on a

number. The negotiation must include all of the settlement terms, including payment terms,

confidentiality (if applicable), and other terms that are important to the parties.

This requires the mediator to be multi-tasking. The mediator must be compassionate and a good

listener, while also rising high above the conflict to see the big picture of the negotiation strategies,

and higher yet to question whether the present conversation is going to help everyone get to the finish

line. The mediator must be calculating and extrapolating the progress of the negotiation numbers, as

well as understanding the impact of the non-economic terms that need to be discussed, when to bring

those terms into the discussion, and what impact they will have on the negotiation. The mediator

must also be mindful of each parties’ big picture – their real life and the rest of their business outside

of this case, and when to bring those perspectives into the conversation.

Knowing that this bottom line objection may occur is what occasionally prompts some experienced

mediators to keep a key case fact in their back pocket. Holding back a useful piece of information in

anticipation of such a moment can help to overcome the, “I need more information” and the,

“Knowing what I know now”, and, “The way the case looks to me right now” objections. It is an old

adage that people do not change their minds, but given new information, they are free to make a new

decision. This is another way of allowing people to save face and back down from that “final offer”

statement by helping them have a legitimate reason to move a little further.

Another negotiation impasse that can occur is one I call “Looking Sideways.” This occurs when

participants in the negotiation are paying more attention to what another party is getting, than whether

an offer is in their own best interest. This frequently occurs when there are multiple parties on one

side of the table – either multiple plaintiffs who will divide a settlement in some fashion, or multiple

defendants, such as in construction defect and product liability claims where there can be dozens of

defendants contributing to a global settlement. In this instance, one co-defendant will stake out a

position that is completely dependent on another co-defendant’s offer. For example, one

subcontractor will say, “I will pay whatever so-and-so pays, but not a penny more.” Or one co-

plaintiff will object to a global settlement offer from the defendant(s) because it provides more money

for another co-plaintiff than for them.

Looking sideways can also describe when a defendant becomes more concerned with the windfall to a

plaintiff, rather than whether the settlement makes sense for them. This can sometimes be remedied

by paying part of a settlement to a third party, such as a non-profit organization.

When parties are looking sideways, instead of at their own best interest, the mediator has to use an

“above the fray” perspective to help that party keep their eye on the ball and decide whether their

individual share results in a fair settlement to them, without regard for what others are doing. For


example, if a single family construction defect case is settling for a global settlement of $300,000,

and one subcontractor with mid-sized exposure is contributing $30,000 to the settlement, they can

become more focused on whether another mid-sized subcontractor is contributing $25,000 or

$35,000. The mediator’s question to them, keeping the big picture in mind, is whether they are

satisfied with a contribution of ten cents on the dollar of the global settlement. Chances are that

setting the contribution in this context may make it seem fair and make sense to them, allowing them

to explain it to others, if necessary.


“Your responses to the events of life are more important than the events themselves.”

- Virginia Satir

“The intent conveyed by an offer is usually more important than the content of the offer”

- Lee Jay Berman


What are 10 things that you are going to commit to do to avoid these roadblocks

and others in your negotiations?

1. ______________________________________________________________

_____________________________________________________________

2. ______________________________________________________________

_____________________________________________________________

3. _____________________________________________________________

_____________________________________________________________

4. ______________________________________________________________

_____________________________________________________________

5. ______________________________________________________________

_____________________________________________________________

6. ______________________________________________________________

_____________________________________________________________

7. ______________________________________________________________

_____________________________________________________________

8. ______________________________________________________________

_____________________________________________________________

9. ______________________________________________________________

_____________________________________________________________

10. ______________________________________________________________

_____________________________________________________________


CLOSING

How to Avoid Roadblocks During the Closing Stage of Mediation

List the roadblocks we see that could be prevented during the Closing Stage:

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

___________________ ______________________ ____________________

These are some roadblocks that counsel report in getting the deal closed:

I’m so tired of “split the difference” I could just spit. What do we need a mediator to tell us that for?

Mediator didn’t have any good tricks.

Why would my client (the plaintiff) want to donate any of the proceeds to charity?

Mediator quit on us. This case could have settled.

Mediator wanted it more than we did.

Other guy was being a jerk and the mediator seemed to fall for that.

The mediator ran out of ideas, so the lawyers had to come up with all of the ideas to get it settled.

The day was going fine until the last 90 minutes, after which my client ended up hating the whole

day, and the mediator, and (almost) me!

Why doesn’t every mediator have a magic wand? Some clearly do.


THE CLOSING

Threat of impasse can also come about when the parties are writing the terms of the settlement

agreement. One reason to be sure to write a settlement agreement at the end of the mediation, even

over the parties’ predictable resistance after hours of difficult negotiation, is because the exercise of

writing the agreement forces the attorneys, in particular, to focus on the details of the agreement. If a

mediator has not inquired in advance about potential deal points such as confidentiality, payment

terms, release language and who will be released, then this exercise can be like a ticking time bomb.

Too often, deals blow up at the end where all parties think that they have reached agreement, only to

find out that when they are tired and wrung out, frustrated and anxious to be done, there is a problem

with a deal term.

Problems at this stage of the mediation are generally met with rock-solid positions, ultimatums, and

emotional parties ready to walk away from the pending agreement unless they get their way, or “win”,

on this newly raised term. Experienced mediators have seen parties ready to walk away from a hard

fought, yet fragile settlement over disagreement of a week or two in the time the settlement payment

will be made. Emotions run high at this stage in the process, and the mediator owes it to the parties

to anticipate this and gently raise and negotiate these deal points along the way, when the parties are

still in the middle stage of their negotiation, and there is still a willingness to give-and-take.

In short, if a mediator can anticipate common causes for impasse, such as these, the mediator can help

the parties to avoid the potential for impasse all together, and find their way directly to a successful

resolution.

Finally, if it sounds like the author has all of the answers to avoiding impasse and settling cases, the

fact is that even this mediator only settled 92% of the cases he mediated last year. And all of this

learning comes from mediating over 1,000 cases over 12 years, and making every one of these

mistakes. Learning, of course, comes from making mistakes and looking back to see, with the benefit

of hindsight, what caused it and how to avoid it the next time. Mediators learn by experience – by

time in the chair at the head of the table. And hopefully by reading articles that help them avoid such

problems by knowing in advance where to look for these bumps in the road. Hopefully, readers will

remember the next time they are staring at a situation that looks like a potential impasse, that they are

simply not finished yet, and there is more to do. This just means that it is time to dig down deeper

into their toolbox and find the right tool.


BRINGING PEOPLE TO CLOSURE

Parties often have trouble making the final decision to end a conflict. The sometimes have trouble making their peace with outcomes. Some in conflict have lived with it for so long, or have become so comfortable with being in the conflict, and have told so many people their story, that they are literally paralyzed by the fear of letting go of it because they can’t imagine their lives without it. What is often helpful is to offer them other perspectives.

Sometimes, in tort cases, people (especially plaintiffs) can feel like the other person “got away with it”. One thing that can be helpful is to remind them that they are not ultimately responsible for the punishment of the other person, or teaching that person a lesson, and ultimately, depending on their belief system, that person may have an ultimate reckoning with themselves and their own conscience, or with a higher power. So, it’s often helpful to remind participants that they aren’t responsible for this part of it and that they’ve done their part by bringing this to their attention and “making them pay” in some fashion for what they did, and that the rest is out of their hands.

Another helpful approach is when people aren’t ready to let go of the conflict, asking them what more they would like to see happen (to see if they still feel like they need to negotiate a better deal) or how they’re going to explain it to their friends and family when they get home (to make sure they won’t feel embarrassed for accepting less money (or paying more) than they’d previously committed to loved ones that they would accept or pay, and helping them to articulate the reasons whey they are making this decision. Finally, it is helpful to remind them that nobody else has been through what they have been through, and nobody else knows all of the facts and factors that are affecting this decision, so in the end, only they, with the advice of their attorney, if they have one, are qualified to make the final decision.

And ultimately, we have to help them let go and look forward.


What are 10 things that you are going to commit to do to avoid these roadblocks

and others during the Closing Stage?

1. ______________________________________________________________

_____________________________________________________________

2. ______________________________________________________________

_____________________________________________________________

3. _____________________________________________________________

_____________________________________________________________

4. ______________________________________________________________

_____________________________________________________________

5. ______________________________________________________________

_____________________________________________________________

6. ______________________________________________________________

_____________________________________________________________

7. ______________________________________________________________

_____________________________________________________________

8. ______________________________________________________________

_____________________________________________________________

9. ______________________________________________________________

_____________________________________________________________

10. ______________________________________________________________

_____________________________________________________________


Published in Advocate Magazine in September 2012

Mediation’s Evolution in SoCal: Where it has been and where it is going

by Lee Jay Berman

Mediation today is being done very differently than it was just five or ten years ago, and it has

changed dramatically since 1995, when it was first introduced into California’s general civil litigation

world.

This means that in order to successfully represent clients in mediation, advocates have to adapt, too.

What worked just a few years ago, doesn’t necessarily work today.

Volume and repetition have fueled evolution.

Looking at just the Los Angeles Superior Court mediation program, not counting any of the private

mediation providers or private, independent mediators, this program has funneled about 25,000 cases

a year to mediation for over 17 years. So, there have been over 400,000 mediations just in this one

county, and just through the court program.

That means that most mediators who have been mediating full time for that long have mediated well

in excess of 1,000 cases, so they have seen over 2,000 lawyers argue their case, advocate for their

client and negotiate – successfully or unsuccessfully – in that time.


Talking with the litigators with whom I mediate, the average seasoned advocate has represented

clients in 100-500 mediations, and of course, some have been in many more than that, giving them

the advantage of having seen many dozen different mediators’ approaches to settling cases.

Given that mediation is most often framed as a competitive model, lawyers have had to raise the level

of their game – from advocacy to negotiation to client counseling – to get cases settled with the most

advantageous outcome. Attorneys who are still negotiating by using the same tricks they used 10

years ago are going to be about as effective today as the secretary who mastered the IBM Selectric

typewriter and never took to word processing.

Evolution in the approach to mediation

Suggesting mediation to opposing counsel doesn’t make one appear weak. It was perceived as such

10 years ago, but today, because mediation has a foothold in the legal process and is accepted as

“something we’re going to do sooner or later”, one doesn’t look week to opposing counsel by the

mere suggestion that the parties consider mediation.

California courts no longer need to order cases to mediate. By now, with some 400,000 court-

annexed mediations under our collective belt, every lawyer in the state knows what mediation is and

how to access it, and by now, should be trusted by the court to make their own determination about

which cases would benefit by going to mediation, when the appropriate timing is on a case by case

basis, who their mediator should be for that case, and where it should take place to be convenient to

all parties.

With budgets being cut throughout the courts, we probably can’t afford to have the courts operating a

mediation provider entity because the lawyers no longer need the “cover” of being ordered, when they

can now pick up the phone and ask opposing counsel, “What would you think about mediating this

one?” An even better approach might be, “It’s my standard practice to recommend to my client an

early mediation in every case, would you be willing to do the same in this case?”

Lawyers are well suited to decide when there has been enough discovery for a case to be ripe for

settlement discussions. By now, we have all experienced the “premature mediation” where neither

lawyer knows the case well enough, but they needed to comply with a court order to mediate by a

certain date. Less recognizable, but equally frustrating is the “entrenched mediation” where the

mediation is being conducted a week before trial and the lawyers have all adopted their clients’

stories as the pure, unbridled truth, and have had heated discovery battles and contentious

depositions, bringing the case to mediation only after everyone is entirely entrenched in their

opposition to one another, with all trust evaporated and suspicion running high. The lawyers, in

consultation with their clients, are best qualified to decide when to bring a case to mediation in

today’s environment, and should be trusted to do so.

Mediator selection era by era

Mediator selection has evolved perhaps as much as any facet of the ADR process. When private

mediation first made its impact, advocates took to a familiar selection process borrowed from

arbitration: the strike list. Each side sent three names to the other, each struck two, and they would

arm wrestle over the final two, usually yielding to whoever objected most strenuously to the other’s

remaining selection. During this early period, counsel suffered from what psychologists call reactive


devaluation, referring to when one dismisses any suggestion made by the other simply because it

came from the other, and without regard for the quality of the suggestion. To assist with this

problem, counsel often preferred working through a provider organization where, for example, the

American Arbitration Association would give out five neutral resumes and ask each attorney to strike

two. While this process was efficient and final, the result was often the lowest common denominator

neutral, rather than the most skilled. Or it resulted in the one most unknown to both sides.

Soon, counsel realized that because mediation isn’t binding, the mediator had no power over them,

and so they placed less importance on who their mediator was. Mediators, for a short while, became

somewhat fungible. The common feeling in this second era of mediator selection sounded like, “I can

sell my case to anyone, so if the mediator has some relationship and traction with the other side, that’s

what matters to me.” While correct in recognizing that the mediator’s relationship with the other

attorney can be persuasive, many soon realized that by abdicating their voice in the selection process,

they could end up with a mediator who was less skilled, and perhaps wasted an opportunity to settle

the case. In fact, few days can be more frustrating, disappointing and harder on the all-important

attorney-client relationship than a day spent mediating without much progress.

In the third generation of the selection process, counsel began to realize that mediators can have

vastly different styles and approaches, and that who the mediator was became a hug variable in

settlement, so counsel started to pay much more careful attention to selecting their mediators.

Counsel, with increasing experience and exposure to different mediators, fast learned that there was

no sure formula for success – no black robe or specific litigation experience meant that one would be

an effective and efficient neutral.

Soon, the trade-offs in styles became clear. The efficient mediator could often alienate the lawyer’s

clients. The touchy-feely mediator could frustrate counsel with their seeming lack of progress. The

most highly experienced expert litigator or judge turned mediator could seem arrogant up close. And

too often, the most popular flavor-of-the-day mediator really wasn’t very good, leaving one to wonder

how they became popular in the first place. Lawyers in southern California began to look to the Daily

Journal’s annual “Top Neutrals” list and organizations like the International Academy of Mediators

to filter the good mediators from the rest, and while this remains a fairly good filter, it is by no means

a guarantee of quality or skill.

Interestingly, during this third era, mediator skill, range and repertoire quickly outdistanced neutrality

as the most important quality in mediator selection. During this period of enlightenment, mediator

experience (or “time in the chair”), training and study, and the mediator’s experience in and focus on

the substantive area of law became of paramount importance. Finally, counsel grew weary of the “9-

5” mediator, whose focus seemed to be on billing for a full day, and quitting at 5:00 without regard

for the progress or proximity to settlement, conjuring an image of Fred Flintstone when the quitting

time whistle went off. It only took one experience with this phenomenon for counsel to add to their

checklist redeeming qualities like stamina, energy, tenacious and relentless.

As we stand today, seasoned counsel in a mature mediation market such as southern California

recognize the need for a mediator who is wise, personable, prepared, a quick study, empathetic to

their clients, approachable, strong, good at reading people, who understands insurance claims and

coverage, knows his or her way around the specific area of the law or business industry, is articulate,

persuasive and, above all, a closer.

The latest trend in mediator selection, perhaps the fourth wave, is the move toward purchasing neutral


services through provider organizations. At the risk of offending my colleagues by omission, it is

probably safe to say that southern California generally has two national ADR providers (AAA and

JAMS), and three well established regional providers (ADR Services, ARC and Judicate West). As

the market for mediation services has grown, perhaps exponentially, and these providers have come

to dominate market share over the last decade. Their rosters grew from dozens to hundreds of

neutrals, and the buying patterns became clear.

Legal professionals were as comfortable with these brand names as home sellers were with Coldwell

Banker, Century 21 and RE/Max. And like Mike Glickman did 20 years ago, entrepreneurs are

successfully entering the mediation provider marketplace to compete alongside of the established

giants, including PMA Dispute Resolution, a boutique with fewer than 20 highly successful neutrals,

and the Agency for Dispute Resolution, a start-up whose panel is a mix of ambitious up and comers

and seasoned veterans. Finally, we are seeing the advent of the field-specific provider with

organizations like the Entertainment Mediation Institute, mostly an assemblage of entertainment law

veterans turned neutral.

The market share owned by provider organizations, in comparison to independent ADR professionals,

in my own estimation, has reversed from 10-90 to 90-10, a trend that I only see continuing. When I

travel to mediate across the country, I hear that this California phenomenon of a provider-dominated

market is fast spreading to other states. Who is the last independent Realtor you can recall? The

same is becoming true for the mediation world. While it may result in higher neutral rates, as the

providers take their share, it offers the benefit of more professional case management, from

scheduling to billing, and the impression of a filter for quality, all of which is important to counsel in

a mature market.

Structure of the mediation process

In 1995, mediation took its format from one of two places – either from the settlement conference

model, where the neutral leaned on counsel for movement and rarely engaged with the real parties in

interest, or from the community mediation model where the mediator’s hands were tied and all they

could do was facilitate until it came time to hold hands and sing Kumbaya.

What has happened to the structure is interesting. In an organic way, most of the top mediators in

southern California have gravitated, by trial and error, to roughly the same kind of process. Agreeing

that most commercial cases move most efficiently in a separate caucus model, and acknowledging

that it makes no sense at all to have litigants walk through the mediator’s door and immediately sit in

the same room, but also recognizing that it’s important for them to lay eyes on each other, especially

if “them” is a plaintiff and an insurance adjuster who has never seen the plaintiff before and needs to

assess how that person will present at trial, most mediators moved to a process where the parties and

their lawyers will each be given a room where they will spend most of the day, but by mid-morning,

after a series of individual check-in meetings with just the mediator, the mediator will often bring

them together for a short face-to-face meeting where the mediator can cover ground rules,

confidentiality and manage the parties’ expectations for the day. On an unspoken level, the parties

get to see and know that the other one is there and equally miserable and going to spend the entire day

in the same frustration as they are. Unless a case is relatively new or counsel don’t know each other’s

theories of the case yet, usually not much cross-talk occurs.

What is nice, is the number of cases where the defendant asks to make a conciliatory opening,

apologizing that the dispute has escalated to this level and reassuring the plaintiff of their sincere


desire to work in good faith toward a settlement to bring about closure on this day. Those kinds of

overtures, when sincere, can go a long way. There is also a lot that the mediator can do in that

moment to remind parties that the people across the table aren’t their enemies for today’s purposes,

rather, they are the ones who hold what each of them came there for that day. This is a pinnacle

moment where the mediator can change the paradigm within which the parties and their counsel

operate. This opportunity is increasingly being seized by enlightened mediators, making these early

joint sessions impactful, if done right.

The last significant structural trend is that of meeting in irregular caucuses. Seasoned mediators are

finding it helpful to meet with only counsel in the middle of the day, and occasionally, under the right

circumstances and with the right permissions from everyone, sometimes with just the clients, whether

they are the business people or the injured and the adjuster. Direct communication along these lines

is incredible helpful, and increasingly is only frowned upon by counsel who are averse to conflict. As

we continue along this timeline of mediation, we will continue to see unorthodox meeting formations,

especially later in the day when the mediator has a good feel for where they can build a bridge

between the separated rooms. This evolution requires a skilled mediator who has his or her finger on

the pulse, and also flexible and trusting counsel, who have familiarity with the mediator from prior

cases or who have watched the mediator work and have come to a conclusion that the mediator has

their clients’ best interests in mind.

More sophisticated negotiations

It is said that Americans are culturally deprived when it comes to negotiation. It’s true if you think

about it – we only really negotiate when buying houses and cars, and occasionally our salary, if that is

negotiable. In some other countries, everything is negotiable. Can you imagine walking into your

local supermarket and when the clerk rings up a total of $121.10, saying, “I’ll give you $50 for it!”

Not here, where everything has a price tag, and we complain if it’s missing one. I often joke that the

little nine year old dragging a case full of jewelry up a Mexican beach has done more mediation by

the time s/he is 13 than most Americans do in a lifetime.

While attorneys have negotiated settlements to lawsuits for eons, studies show that most don’t have

the stomach for negotiations that go more than three to four steps on each side. What mediation has

done, is often force counsel and clients to negotiate many more steps in the process. While this has

frustrated some who are more rigid or short on patience, others have used the experience to learn

more about negotiation by trial and error.

I was especially tickled one day when defense counsel walked in with his young adjuster in tow. As I

chatted with the lawyer, and asked about his kids and we reminisced for a minute about the last case

we had settled together, I looked down to see his adjuster had numbered down the left margin of her

steno pad: 1P, 1D, 2P, 2D… and so on to 7P, 7D. She told me just how many moves she planned

(read: had been trained) to use to dole out her authority, and that she expected plaintiff to make the

first move, and her to make the last. They do say that distributive negotiation is nothing if not

predictable!

What the explosion of mediation in southern California has done is cause lawyers and clients,

especially the institutional ones, to learn more about, and become much more comfortable with, the

art and science of negotiation. When I ran Pepperdine’s Mediating the Litigated Case program for

seven years, not only did we train hundreds of lawyers in negotiation skills every year, but we were

also hired to travel the country training business people to negotiate better. Our most notable


experience was when one national insurer hired us to train every one of their claims people across the

country. This is an experience that every mediator should have. I learned an incredible amount about

their process, and how they are taught to negotiate, and how management measures and rewards them

(that is a whole separate article). Mostly I learned how little they knew about negotiation before we

got there, and watched as they learned and practiced and got stronger. Cases now going to mediation

require extensive negotiation, and those flying by the seat of their pants and following their guts are

severely disadvantaged.

Part of the more sophisticated negotiation trend includes learning how to game the mediator. The

most common game I’m seeing these days is the set-up for the predictable mediator’s proposal. Too

many of my colleagues have come to rely on the mediator’s proposal. To be fair, that is in part

because too many advocates have become dependent on it, even insisting on one at times. But, like

any other negotiation technique, it can become predictable. That is where the problems begin.

For any who don’t know, the mediator’s proposal, usually done in a double-blind method, is where

after an extensive negotiation that hasn’t yet resulted in settlement, the mediator is asked (or offers) to

select a number at which s/he thinks the case could or should settle. Each party is given the number,

and decides independently whether they will agree to it or not. Then each tells the mediator their

decision confidentially. If they both agree, then they have a deal. If one or both said no, then there is

not a deal, and neither gets to know what the other answered, thereby protecting the one who may

have said yes by allowing them, for the purpose of future negotiations, to remain publicly at their last

number prior to the proposal, so as to not be disadvantaged.

Some counsel and clients have begun to “play for the proposal”, where their entire negotiation plan

(and every advocate should always come into mediation with a plan) is based around manufacturing

where the impasse will be set up, so that the proposal becomes slanted in their favor. For example, if

plaintiff begins at $400,000 and is expecting to settle at the end of the day for $175,000, if they were

playing for the proposal, they would frame the negotiation where they stopped at or above $250,000,

and ideally with the defendant at or above $125,000, setting the midpoint at $187,500 or more. That

sets the stage for the mediator to pick a number that is somewhere at or above their target number,

and if it’s positioned right, such as plaintiff at $230,000, defendant at $170,000, then the mediator’s

proposal might come in at $200,000. Alternatively, in a traditional negotiation beginning with the

same starting point, and target ending point of $175,000, the plaintiff would not be putting the brakes

on so high, and would likely end up negotiating all the way down to $175,000.

In this way and others, experienced counsel are raising their level of negotiation prowess and

gamesmanship in order to have the upper hand. More cases used to settle on the day of the

mediation. And at the risk of creating a self-fulfilling prophecy here, today, more cases do not settle

that day and require the mediator to follow up, as more counsel understand that they might have

additional advantage if they walk away without a deal at the end of that day.

This leads to the next new trend of mediator follow up. Ten or more years ago, we mediators felt as

though we had to be invited into a case, and that it had to be mutual by both counsel. Today,

mediators are expected to seize the role of protagonist and advocate for the settlement, understanding

that counsel appreciate us following up and drawing everyone back into further settlement

discussions. This is happening so often, in fact, that counsel have begun to rely on the mediator

doing this to get cases closed, leaving some mediators chasing settlements so hard that they end up

eating out of counsels’ outstretched hand like a puppy. There is a delicate balance between the

mediator being a tenacious closer, taking responsibility for a settlement and respecting the parties’

self-determination and making them do the work if they want the case to settle. But in either event,


mediators are following up after mediations more aggressively than ever before, and counsel expect

the mediator to do just that. Anything less is viewed as lazy or ineffective. This is a pendulum that

has swung completely in the opposite direction over the years and one that I expect will correct itself

over time to become less predictable and more in balance between counsel and the mediator.

The mediator’s position relative to the parties

In mediation’s early days, attorneys approached mediators a lot like they would a trial judge holding a

settlement conference – tell them nothing, admit to no weaknesses, and never, ever tell them your

bottom line. Today, after a decade or more of trust has been built through experience, counsel and

clients have begun to trust mediators more. Likewise, mediators have begun to act less like stuffy,

distant neutrals sitting in judgment, and more like coaches, partners and confidants of counsel and

parties alike.

More and more I have counsel trusting me with their bottom lines, and even attempting to delegate

their negotiation responsibilities, saying, “This is what we will do at the end of the day. We’ll leave

the steps to you, just get us there by 4:00 or so, I’ll trust you.” While most good mediators will

decline such an invitation, the very offer is an indication of counsel’s view of the mediator, less as the

enemy and more as a partner in the negotiation process.

What used to be, “why don’t you step out and let me talk with my client” has now become, “what do

you think we should do?” The latter actually shows seasoning, as that lawyer recognizes that the

mediator who should be a negotiation expert, has had the unique benefit of having spent much of the

day in the other room, seeing what counsel has not, and that mediator knows more about what kind of

response various offers will bring. In order for this to work, though, it requires a mediator who

doesn’t have the mindset that says, “I must get a settlement at all cost and would sell my mother to do

it.” In this kind of relationship, the mediator metaphorically sits on the same side of the table as

counsel, rather than across it where opposing counsel would normally sit.

The mediator can credibly position his or her self along the side of the parties, only once they have

built that trust. After that, the mediator can bring all of his or her training and experience to bear in

helping the parties negotiate effectively.

While this, too, is another whole article, I do not consider myself neutral. I don’t even act impartially.

I am what I have come to call “mutually partial”, meaning that I help and coach both sides to get the

most of what they came to get. I coach, advise, and partner with each side in helping them do what is

best for their interests. Rather than being on neither side, I position myself on both. This must sound

strange to those who have not experienced it, but at the end of the mediation, both sides feel as

though I have helped them and had their backs. I don’t tend to argue with counsel, I help them look

at what the outcome would look like if things go one way versus the other, and to consider both in

making their next risk-based negotiation moves. I help them evaluate choices that are available to

them and effectively weigh their options. Essentially, I position myself with them, rather than

opposed to them. This is, I believe, a growing trend in the field. Those mediators who are

enlightened are figuring it out, where others keep banging heads together, with no regard for finesse,

until they get a deal. Thankfully, this actually creates more choices for counsel when selecting a

mediator, and it is ultimately good for the whole field.

More of a process than a single day


One last evolution is that in 1995, mediation was an event. It was one day, no matter how long it

took. Respecting the momentum of the process, notoriously determined mediators and counsel

plowed until the wee hours of the morning to get a case settled. Back in those days, I mediated

several cases that stretched until two, three, four o’clock in the morning, to settle a complex or highly

emotional case. I prided myself on my personal record of 19½ hours straight to settle a wage and

hour claim. But we’ve all gotten smarter, mediators and advocates alike, recognizing that sometimes

taking time to reflect and talk to other people isn’t such a bad idea.

We now recognize that mediation is a process, rather than a day in time. And that a good mediator is

part case manager, part discovery referee, part early neutral evaluator, part client counselor, part

negotiation coach, part persuasive closer, and part settlement documenting consultant. If a mediation

is premature, then a good mediator helps the parties to stay on a settlement track, identifying key

discovery that is necessary before a productive settlement discussion can occur, while simultaneously

keeping everyone from overturning every stone, as if preparing for final adjudication of the matter.

Counsel have repeatedly told me that they want the mediator to take the reins and help the parties

negotiate discovery, keeping only to the necessary, such as an independent medical exam, voluntary

document exchange, or a key percipient or expert witness deposition, before returning for a more

informed final negotiation session. In construction and product liability cases, it is not uncommon to

have an experts’ day, followed by a “money” day, all facilitated by the mediator.

What is also changing is the blending of neutral roles that counsel are asking their mediators to play.

Because mediation is such a flexible process, and the role is loosely defined as “facilitating

communication between the disputants to assist them in reaching a mutually acceptable agreement”

(California Evidence Code Section 1115), the mediator may do anything that helps the parties move

toward agreement.

Combining this flexibility with counsel’s increasing experience with the process is yielding more and

more creative and customized processes and the market is rewarding mediators who are flexible and

creative. Some old favorites we are seeing again are Med-Arb, a blended process where the mediator

turns into arbitrator if the mediation portion of the process leaves the matter unresolved (often a self-

fulfilling prophecy and rife with ethical slippery slopes, not the least of which is the state’s disclosure

requirements for arbitrators), and Arb-Med, where the neutral, after a short evidentiary hearing,

makes a binding ruling, seals it in an envelope, and proceeds to begin a mediation between the

parties.

We have also spawned some new hybrids – some creative and others downright scary – including

Jury Mediation, where a mock jury is empaneled, delivers a mock verdict, and then the parties

mediate, guided by this mock outcome; ENE-Mediation, where the neutral first does an early neutral

evaluation and then, somehow, regains neutrality and serves as mediator; and Bottom Line Mediation,

which is essentially a settlement conference by telephone that cuts to the chase and doesn’t include

the parties at all.

Perhaps the most creative (and fun) process I have co-created with counsel was in a trade secrets case

where Big Company had filed a motion to compel Small Company’s bank records, including copies

of deposited customer checks, in order to support its claims that Small Company had been stealing

their customers. Small Company argued that if those records were produced, Big Company could put

them out of business by selling to those customers at a loss in order to win them all back. But

without those records, Big Company could not conclusively prove its case. We had to get creative to

move this issue along, so to protect Small Company’s privacy enough for them to agree to produce


the records, we agreed that the bank would produce the records to me, the mediator, in camera. Both

companies would supply me with their confidential customer lists, I would identify the overlapping

customers only, and I would disclose to both sides the exact amount of the deposits in the last

calendar year for each of those companies. After doing that, we reconvened for a mediation, using

those amounts as evidence of damages and settled the case in one day.

As we become more comfortable with mediation and other ADR processes, we can stretch the bounds

and customize it to meet the needs of the parties in any given case. The danger is that in doing so, we

must pay close attention to the neutral’s ethical guidelines. The benefit can be tremendous savings

through efficiency and economies of scale, as well as the protections afforded by mediation’s strong

confidentiality protections.

Court programs

In 1995, Senate Bill SB 401 passed, begetting CCP 1775, bringing the mandate from our state

legislature that the Los Angeles Superior Court (LASC), and any other county that wanted to opt in,

was to set up a mediation program for all cases under $50,000 (those that were otherwise eligible for

Judicial Arbitration). Almost immediately, the court blew the lid on this limit and began sending

cases of all sizes into the program, and at its peak was sending over 40,000 cases a year to court-

annexed mediation. San Diego and Ventura opted in from the beginning, and slowly other southern

counties began to roll out programs, from Santa Barbara to the Inland Empire, court-annexed

mediation (ordered, or simply “referred”) had arrived. Even Orange County recently attempted to

launch a program of sorts.

Some of the early programs learned from their experiences and modified their rules to enable them to

better serve the court’s customers. Due to budget cuts, Los Angeles’s program turned into a

volunteer program for the mediators, and they soon found that in order to attract more experienced

mediators, they needed to add a program they named the Party Pay program (now called Party Select),

where the mediators have agreed to cap their fees to a court mandated rate for the first three hours of

each case, which was at least better than volunteering. San Diego and Santa Barbara offered market

rate panels of mediators for cases above $50,000. Santa Barbara and some others added panels of

other kinds of neutrals (special masters, discovery referees, early neutral evaluators, binding

arbitrators, etc.) in an effort to emulate the multi-door courthouse concept that came from the Harvard

program’s early work.

Interestingly, after the first five years, court mediation programs had enormous disparity in their

success rates, ranging from 28% on the low end to a high of 82% on the high end. Upon further

study, the most important determinant of this success was voluntariness. The programs that allowed

counsel and their clients to opt into the mediation program, select the timing, and select their

mediator fared at the higher end of that range. Those whose programs were highly mandated, either

not trusting counsel or not equipped to manage such complexities, scored near the bottom.

These court programs had a huge effect on mediation as it is practiced in southern California today.

On one hand, it exposed civil litigators to the mediation process in the mid-1990s when resistance

was high and confidence was low. These programs accelerated the exposure and eventually

acceptance of mediation. Some have said that the other thing they have done is educated counsel and

parties in some counties that mediation is something they should get for free, whether paid for by the

court or by the mediators volunteering their professional services. And yet, rightly, if a court is going

to mandate an extra process, some say that the court should not then make the litigants pay for it, lest


they reduce access to justice. So, it’s not so much that the jury is out on court-annexed mediation, but

rather that we must accept that, like anything else, there are pros and cons to it. And arguably, more

good than bad.

As the LASC tweaked its program, its resolution rate rose from 33% to almost 50% and as they added

the mid-level Party Pay program, we saw a new phenomenon: stratification of cases. Lawyers now

merchandise their cases, bringing the smaller, less challenging cases to the free court program (now

called Random Select in the LASC). They bring their compromise cases, where one side or the other

refuses to pay for the mediator of their choosing, but the other side thinks the case demands a more

experienced mediator or wants to exercise their choice, to the mid-level panel, where the mediator is

paid, but a relatively modest fee by the parties. And they bring their larger, more complex cases, or

those with a lot at stake or with highly emotional or entrenched clients to private mediation.

This exercise of measuring a case for the appropriate level of service is actually a relatively new

revelation, and is a step in the right direction when one is considering mediating. Not every case can

be resolved by a newly trained volunteer, likewise, not every case requires a $15,000/day mediator.

This broadening of the mediation market, coupled with more awareness of the market’s nuances,

forms a higher level of thinking about the process, which arguably leads to higher levels of counsel

preparation of the case, client and mediator, in addition to increasingly pairing the right mediator with

the right case, all leading to greater levels of success in mediation overall.

Disclaimer

Every bold article needs a disclaimer. In case it’s not already obvious, clearly what is above does not

apply to all lawyers, all mediators or all cases. Each must be managed based on its own individual

circumstance. Rather, what is above is intended to call out the trends, the fashions, and the evolution

of the mediation process as it is practiced in this unique market that has matured and bulked up on

steroids, due to the number of cases being mediated annually in southern California over these 17

years.

Where is mediation going from here?

Mediation is here to stay. There is no doubt about this fact. The real question is where is it going

from here. What I predict we will see is that continued budget cuts in government will limit courts‘

ability to dispose of conflict as efficiently as it has been. These cuts will also reduce the court’s

ability to fund mediation programs. Once they are convinced that a significant portion of their civil

dockets will continue to disappear because parties are mediating in the private sector, we will see a

hand-off of the administration of mediations from the public to private marketplace, with the latter

being dominated by well-branded provider organizations.

To the extent that courts continue to back up due to funding cuts, and time to trial grows, we may see

cases becoming significantly more difficult to settle because of a lack of incentive on the defense

side. Without the pressure of an imminent trial date, plaintiffs may have a tougher time getting

settlement dollars out of institutional defendants. Should that happen, mediation will lose some of

the effectiveness it has enjoyed over the last decade and a half. Having said that, mediation is still

growing and thriving in India, where the average time to trial was 35 years when I was last there.

We will continue to see a greater diversity of mediators in the market, too. Not just diversity of race,

gender and age (as the younger ones start coming out of grad school with advanced degrees in dispute


resolution and 10 years’ experience, having mediated since peer mediations in middle-school, not

unlike the little boy on the beach in Mexico), but also in work and life experience. As the market

continues to embrace specialization, construction cases will continue to see mediators who come

from construction and design professions, healthcare cases will increasingly demand mediators who

have run hospitals or who understand the medicine first hand, and so on. Not to the exclusion of

lawyers and retired judges, never to that extreme, but we will see a continued balancing of the variety

of experiences people bring to mediation until we begin to see those with no prior work experience,

but who come to mediation as their first career out of school. That day is not as far away as we might

think – in large part because it has been building here in southern California for two decades.

We will see mediation move earlier and earlier in the process, from early mediation programs in

courts to legislation and court rules requiring mediation prior to filing, much like the increase we

have seen in pre-dispute mediation provisions in commercial contracts and employee manuals. We

will begin to see attorneys getting involved sooner in these processes in order to assist their clients

with those early mediations.

Lastly, the private marketplace will continue to become more discerning in its procurement of

mediation services. With increased competition, there will be a Darwinian effect leaving only

mediators who can demonstrate the skill set at the highest levels. And we will see more and more

educated and sophisticated advocates in the mediation process, who recognize when mediators have

the ability, and are able to step in and salvage and otherwise doomed day, in the event that the

mediator does not.

In closing, please go wisely, use an abundance of caution, but feel free to be guided by the roadmap

laid out above. And if you are from another jurisdiction, it is probably a safe bet that eventually these

trends will seep their way into your marketplace, too, so forewarned is forearmed. I’d like to

encourage you to enjoy the ride. Not every mediation you experience is going to be amazing and

magical, but an increasing number will be. Enjoy, notice, learn, appreciate and reward those

experiences, and continue to sharpen your tool to get good results for your clients.

________________

Lee Jay Berman is a commercial mediator based in Los Angeles, California who enjoys a practice

that takes him traveling the country and the world. His biography is online at

www.leejayberman.com. He can be reached at +1 310-478-5600 or [email protected], and

he is interested in your thoughts about this article. Please feel free to reach out with comments and

questions.

http://www.leejayberman.com/

http://www.leejayberman.com/

mailto:[email protected]


12 Ways to Make Your Mediator Work Harder For You

by Lee Jay Berman

The biggest mistake most attorneys make is not getting all of the value that the mediator has to offer,

and for which their client is paying. Many attorneys won’t let the mediator get a word in edgewise,

tie their hands with respect to what they can reveal and discuss in the other room, and only want to

talk numbers with them after lunchtime. Then they complain that the mediator is overpaid. Getting

your money’s worth from your mediator is your job. You have to dig, prod and push to get

everything that you can out of your mediator, not unlike a tube of toothpaste (that is, if you paid

several thousand dollars for the toothpaste and only had eight or ten hours to get all that you could

from it). Most attorneys never get to see all of the skills a mediator has because they never make the

mediator work hard enough to need to for their mediator to utilize those skills.

Remember that experienced mediators have taken and even taught hundreds of hours of classes and

workshops in negotiation strategy, and have facilitated hundreds or thousands of negotiations.

Seasoned mediators have seen literally thousands of attorneys work their craft. That experience is

what you are hiring when you select a mediator to help with your case. But it’s up to you to draw

upon that talent and make that mediator work hard for you. Accept nothing less from them. Some

mediators think that they can coast into their work with a semi-retired, carefree ease. Weed them out

early. Expect to work hard to get your case settled, and expect your mediator to work harder.

Here are 12 ways to make your mediator work harder for you. If you take advantage of every one of

them, you will get much more out of your mediators, your mediations, and your settlements.

1. Voir dire your mediator.

While much has been written about how to select a mediator (mediation experience, references,

personality, style and subject matter experience), there is no prohibition on giving a prospective

mediator an old fashioned job interview. Attorneys who fail to do their due diligence in selecting

their mediator are not putting their clients’ (or their own) interests first. Unlike arbitration, the

mediation process encourages and relies upon ex parte communication, and offers the opportunity to

speak directly to your prospective neutral in advance of selecting them. Before investing a full day of

your time and your client’s, not to mention all of the preparation, consider taking the fullest

advantage of this opportunity, both to make the mediator work to give you comfort that you won’t be

embarrassed in front of your client by selecting him or her, and also for you to build that critical

rapport as a first step in connecting with the mediator, even in advance of their receiving your brief.

In addition to having the opportunity to interview your mediator and survey them regarding their

experience and their style to make sure you’re choosing the right mediator for this particular client


and case, you also have the opportunity to make a credible, early impression. Your time is too

valuable, and good clients are too scarce, to risk having a bad experience in mediation. The chances

of this can be greatly reduced if you make the mediator work for you before you have even agreed to

use him or her.

2. Put them to work early and often!

Some mediators will not arrange pre-mediation calls (either with all counsel or individually). If your

mediator doesn’t call you for a pre-mediation call, then you can and should call them. Bend their ear.

Take advantage of this second opportunity for ex parte communication, and talk the case over with

them. Go beyond arguing your case. Ask them affirmative questions, to see if you can get them to

agree with you. Ask what would be most helpful for you to include in the brief. Make sure they

understand your professional experience, your client’s credibility, your theories and arguments. This

is also an opportunity to tell the mediator in a private conversation about any issues you might be

experiencing with opposing counsel, your adjuster or your client, and anything else you would like

them to know while you have them alone (for a second time). Not only is this fully allowed,

mediators encourage it.

3. Brief them well.

Make your mediator read and understand the case like you do. Of course, this will take you distilling

it down into digestible form. Give your mediator a chronology. Don’t get excited and jump to the

good parts first. Tell the story the way it happened – from start to finish. Give dates and time frames.

Then, avoid repeating, avoid bold, italics and exclamation points. Your outrage doesn’t persuade a

mediator; your facts must. Most mediators you will be using have seen hundreds of cases, if not over

a thousand. If your facts don’t stand on their own, elaborate language and punctuation only draw the

mediator’s attention to that. Bad behavior by bad actors do not require emphasis. Seasoned

mediators can see a case developing. They can see it crescendo, they can judge liability and evaluate

damages if they are laid out in an organized fashion, but more importantly, they also understand what

you are saying in between the lines.

Any mediator who has been mediating for 10-15 years has read thousands of briefs can read very

clearly what you are saying (and not saying) about your client, your adversary, opposing counsel, your

case, and your settlement posture without you actually having to say it directly. This is the best

reason not to let your first year associate write your mediation brief. Mediators really do form

opinions about attorneys, especially ones who are new to the mediator, by their writing prowess. If

you had your associate draft your brief and you signed it, you have communicated to the mediator that

either you do not write very well, or that this case is not important to you. You undermined your

credibility before the mediation has begun. A well crafted brief, threaded throughout with covert

information, is more important than your reputation because it is real to the mediator. It is what’s in

the mediator’s hands before the mediation. And, if you tell the mediator your confidential thoughts

regarding settlement in a private brief, you can shave hours off of your mediation time.

The same goes for telling the mediator about recent settlement discussions. Nothing is a bigger waste

of time than getting almost to lunch time only to hear for the first time that the number just put on the

table was offered last week in direct settlement, and that the last couple of hours have been a waste of

time. Write well and put your mediator to work long before the mediation begins. Work harder to


pass along subtle information, prepare your mediator privately, and give them what you need them to

know to help you out. But expect them to learn everything you spell out, and if they miss it, make a

note of that.

4. Arrive early and meet with the mediator alone.

Get to the mediator’s office early and ask if you can talk with the mediator alone before the “formal

mediation” begins. Ask questions, clue him or her in on client or adjuster issues, and connect if you

have not met before. A good handshake and three or four minutes of good conversation starts the day

off on the right foot. Then, bring the mediator over to meet your clients. Introduce them and

facilitate a short, light conversation between the two of them. This can range from “Marge, tell the

mediator how your back is feeling today” to “Turns out you and Jim both went to UCLA!” This

gives you two brief moments to take the mediator’s temperature (and pulse, if necessary) and let him

or her take yours and your clients. Doing this allows everyone to become humanized, look into each

other’s eyes, make a little small talk and shed the armor of playing the roles of “attorney”, “client”

and “mediator” when you sit together. When the attorney and client are on a more human level with

the mediator, it makes the mediator work harder because they cannot simply convey numbers to you.

And human nature dictates that it is harder to break bad news to people we like, so in some cases, this

can be a negotiating advantage.

5. Enlist them as a strategic partner

Bring your mediator around to your side of the table - literally. When you have them alone in your

first private session, enlist their help and draw them away from neutrality and into partiality by asking

them how they would play your hand, if it was theirs. Acknowledge your case’s weaknesses, then ask

them, “What am I missing? What do you see that I am not seeing? How would you oppose me if you

were on the other side? What would your opening argument be?” Make the mediator work harder by

working up the case with you, and then see if you can lure them into working with you to craft a

settlement strategy for the day. Be careful not to answer your own questions. If you ask the mediator

a pointed question about case flaws, value or strategy, make sure you get their answer. In these key

moments, who ever speaks first gives in. If your mediator is on the fence about offering opinions,

wait them out, press them, and if they won’t give you their thoughts about what you should do, then

ask them to play the other side and tell you what they would do if they were the other side. Use the

mediator like you would a colleague you might enlist to help you evaluate a case.

6. Make the mediator respond to your offers first

Use your mediator as a sounding board. You deserve to know what the mediator thinks of each offer

before they leave the room to present it (don’t accept politically correct neutral speak here), and how

they think the other side will respond to it. If you really want to put them on the spot, make them tell

you what kind of reciprocal concession they think you should be able to expect from the other side

before they leave the room to deliver the offer. That will put them under the gun to try to achieve the

concession they told you to expect when they are in the other room. Consider their feedback and be

flexible to it. Remember, your third, fourth and fifth offers don’t matter! They could be anything, as

long as you’re getting the movement you want from the other side. So, if the mediator feels better

about one number over another, it is best to let them go with the number they feel good about and sell

it sincerely, than to send them with one that they don’t like and have to try to hide their raised

eyebrow when they present it.


One strategy I’ve seen that really works well is to give the mediator two numbers, either of which

would be acceptable to you, and ask the mediator which number they like better. If they pick the

lower of the two every time, then call them on it. An honest mediator will tell you when your

contemplated move is too large. If you haven’t ever heard that from a mediator, then you are not

working them hard enough. Think about it – how much do you really learn from a mediator if you

argue with them and win in each round? By giving them two numbers, you get to learn about them,

how much you can trust them, and whether they are really paying attention, rather than simply

shuttling numbers.

As a master strategist, these are the things you really need to know for later, when the negotiation is

getting down to real money. You have to know that when they walk into your room and say, “That’s

really all there is.” that you can trust them, and if you haven’t learned about them during the

mediation, then you don’t really know how much you can trust them.

7. Make them explain your offer completely

Naked offers may sound sexy, but they’re really just bare. A fully dressed offer explains the

reasoning behind it, the thinking that went into it, the analysis and the message that is conveyed along

with it. You can write this down: The intent of any offer is more important than the content of that

offer. It is always more important, with every offer, that the other side knows your intent. Your offer

is a message to them, but if you send over a naked number (or a have a mediator) that only says,

“They’re at $850,000”, then you leave the other side to make up their own story about you, your offer,

your strategy and your intent.

Take control of the other side’s impressions by filling in the gaps for them, and insisting that your

mediator convey the entirety of your meaning, complete with the nuance you intend. This is why

your mediator needs to be highly articulate, expertly nuanced and deeply attentive to you and your

client. If they’re not getting your message or seem only interested in your naked offer, then ask to

speak to opposing counsel and convey it yourself. You should never feel handicapped by a mediator

who can’t convey your message the way you want it conveyed.

Additionally, make sure that your mediator raises all of the issues relating to settlement long before

you start to reach the numbers. Mediators who take their eye off the ball can leave you arguing with

opposing counsel about settlement terms like confidentiality, release language, taxation and other deal

terms at the end of a mediation when you thought you had agreement because you agreed on a

number. Make sure they are on top of these issues early on and doing their job to flesh out all of the

relevant issues. In fact, doing so can sometimes take the focus off of the numbers at a strategic time

in the afternoon when the negotiation needs a change in focus.

8. Have them be your eyes and ears

While there is some disagreement about the ethics of sharing the “temperature” in the other room, I

have had two very telling instances of sitting in on a mediation as a consultant to a party, one when

my brother sued his general contractor, and the other when my other brother went through divorce

mediation. When the family mediator in the latter case came back into our room and said, “She has

melted down. She is a puddle on the floor in the other room.”, there was no question about where

things were, and that it was time for a new approach to bring her back into reality. In the construction

case, when the mediator came back and said, “She’s so nervous, she can’t sit down, she’s pacing


around the room. If I didn’t know better, I’d swear she was on coke!” Knowing this allowed my

brother to be make more informed strategic decisions about the size and timing of his next offer.

If you are in one room for the majority of the day, you do not get to see first hand whether the other

side is frustrated, bored, wearing down, boiling over or at the tipping point. In some cases, this

information can be more important than the amount of their last offer. The non-verbal cues such as

the attitude behind an offer and the flexibility surrounding it will determine how you respond to it as

much as the offer itself. You need to know who is driving the bus in the other room, including how

that may change as the day progresses. Expect your mediator to paint picture for you so that you can

use all of the context to your advantage. Ask your mediator each round or two how their temperature

is in the other room. You will make more informed decisions and the mediator will be of more value

to you.

9. Have them give you your choices.

While you may see 2-3 options for responding in a certain circumstance, your mediator may see

another option or two that you do not. Ask them to review the available choices as they see them.

Remember, if you’re hiring a professional, expect that they have studied negotiation theory, game

theory, distributive bargaining and integrative bargaining, and should be expert in architecting a

negotiation that will result in a settlement. Put that expertise to work for you.

It is a well-known fact that most untrained people negotiate in a way that is consistent with their

personality. Nice people negotiate more collaboratively, and competitive people like to play hardball.

But your mediator should be skilled in both styles and more. So, make them work for you and offer

you options before you narrow to one choice for your next move.

10. Have them tell you when enough is enough.

By late in the day, your mediator has spent many hours watching and gauging the patterns and ability

of the other parties and their lawyer(s), feeling the ebb and flow, watching control shift from attorney

to client and back again. Your mediator is best equipped to know when the other side is at the end of

their rope in the negotiation, and when “no” really means no. Make them opine, and give that

considerable weight. Ask the mediator what they are relying upon in concluding what they conclude,

and make them show you their logic and reasoning.

11. Make them work until the end.

There are some mediators who are quitters. When 5:00 comes, they will leave, right in the middle of

a mediation, no matter now close a settlement may be. Do not accept this from your mediator. No

matter how big a “name” a mediator has, do not ever hire them again, and make sure that every other

advocate you know hears about it if a mediator quits on you. Some mediators will also quit when a

deal is reached - literally sitting down in the far corner of the room and letting counsel, who have

opposed each other all day, try to iron out a difficult or complex settlement agreement, or worse,

leaving and telling the parties that it is not their job to facilitate the writing of the settlement

agreement.

While it is never the mediator’s job to write the settlement agreement, given that one would have a

hard time suing a mediator for drafting language that disadvantages their client or failed to foresee a


problem down the road, it is the mediator’s job to facilitate the discussion until the signatures are all

on the page. After all, the settlement agreement is just an extension of the negotiation between the

parties.

Many attorneys say that the most important quality in a mediator is an iron rear end – one who can sit

there as long as it takes to get the job done. Your mediator should be the last one out of the room,

when a settlement has been reached, and especially if one has not (yet). Your job may need to be

keeping the mediator working until the ink is on the paper. Do not accept less from your mediator.

12. Expect them to work after it’s over.

Any mediator worth their salt will be committed to you until the case is settled. Seasoned mediators

see mediation as a process, rather than a day. If the initial mediation session ends, make sure that

your mediator continues to work for you. With mediators who are either so busy that they don’t have

the time to adequately follow-up or with those who are not as aggressive as you would like, you may

have to prompt them to call the other side.

There is no shame in calling the mediator if you haven’t heard from him or her for a few days after an

unsuccessful mediation and prompting them to call the other side with a “routine follow-up call”

(rather than indicating that you called them first). If your mediator required a jump-start, you can

certainly provide the motive power, as a last resort. Ideally, you want your mediator to remain

tenacious after a mediation session that didn’t end with a signed settlement agreement, and in some

cases, you may have to initiate that conversation.

Conclusion

In these economic times, attorneys are paying more attention to mediators’ fees. Consider that

focusing just on fees is a lot like buying a car based solely based on its price, without ever asking how

big the engine is or what options it has. If you are making your mediator work hard in all of these

ways, you will get your clients value for every dollar. Now that you have these 12 ways to make them

work harder for you, you should have much better results in your mediations.

_____________

Lee Jay Berman is a mediator and trainer based in Los Angeles. He can be reached at (310) 478-

5600 or [email protected]

This article was published in Advocate magazine in October 2009.



ABA Section on Dispute Resolution Journal

Practice Development, Business of Mediation and Skill Development Committee Columns

Recession Advice for Mediators

January 2009

While many believe that mediation is a recession-proof business, the truth is that a difficult economy

slows every business and practice as people have less money to pay for things. When a mediation

practice slows, there are three things that mediators can do to make productive use of increased down

time. They can increase their marketing efforts (attend more networking events, update websites,

etc.), improve or update the administrative infrastructure of their practices, and they can hone their

skills.

Continued training for mediators is critical only to those mediators who want continued success. The

marketplace is fickle, and mediators who continue to grow and add new tools to their toolboxes

thrive, while those who plateau find their practices ebbing. Users of mediation services – litigators,

adjusters, house counsel, executives – become disinterested if they think that they know all of a

mediator’s tricks. Mediators must stay fresh and grow or be left behind. This is the reason for many

mediator panels and organizations requiring minimum continuing mediator education (CME) for their

members. But even absent such a requirement, each mediator should have such a goal or requirement

for themselves.

Just as lawyers don’t know everything about the practice of law after law school and doctors don’t

know everything about the practice of medicine after medical school, mediators don’t know

everything about being masterful mediators after a 40-hour course or even after a master’s degree.

The start of a new year is a good time for every mediator to take an honest inventory of their strengths

and weaknesses. Those who used post-mediation evaluations should revisit them to see what clients

are telling them, and the mediations that ended without resolution should be contemplated (see

“Impasse is a Fallacy” at www.mediationtools.com/articles/impasse.html).

The first question might be, “What do you wish your mediation training had included?” I recently

asked this question on the International Arbitrators and Mediators Listserve

(http://groups.yahoo.com/group/ArbitratorsAndMediators) and invite readers here to add to the

ongoing list.

The second question might be, “If I could add one new tool to my repertoire, what would it be?” And

the third question might be, “Who would I like to study with to learn some new tools?”

In founding the new American Institute of Mediation, I spent a lot of time discussing these issues

with our other core faculty members (Erica Fox, Ken Cloke, Jim Melamed, Woody Mosten, Doug

Noll, and Mel Rubin), and decided that as we were building this new training institute from the

ground up, we might rethink how training is done. Mediators may want to look at their own training

experience in this way in deciding what metaphorical muscles need building or toning.

http://www.mediationtools.com/articles/impasse.html

http://groups.yahoo.com/group/ArbitratorsAndMediators/


Back to fundamentals.

As mediation training has grown in the academic settings, and more private mediators seek out their

training there, rather than community mediation programs, the experience has become more like

academic instruction than hands-on training. With this shift, the emphasis on core skills such as

listening deeply, skillful reframing and maintaining a balance between inquiry and advocacy has been

substantially reduced. These skills are a mediator’s real secret weapons. Even experienced mediators

can get into a rut after a while, focusing on thinking about how to solve a problem on an intellectual

level, that dialogue becomes more like debate. A workshop that emphasizes the core fundamentals

upon which mediators rely can impact a mediator’s practice immediately.

Advanced Skills.

It is often said that we don’t know what we don’t know. What better way to find out than to take a

great advanced skills course? But for really new skills, stretch outside of your box and take a course

from someone whose background and style are completely different from yours. Unless, of course,

you want to get better at doing what you already know.

Specialization Skills.

When the market is quiet, it is a great time to brush up on an area of law that has not been an

emphasis for you to this point. Investigate legal updates in employment law, intellectual property

law, family law, real property, lending and land use law, professional malpractice, construction, and

any area of law that might be a logical next step. In addition to the substantive knowledge, consider

seeking out mediation courses that specialize, in order to learn insights into effective mediation tools

in those areas, usually taught by mediators experienced in that niche.

The Business of Mediation.

Nobody likes to market and network. But it still beats accounting, budgeting and projecting any day.

When was the last time you had a workshop on building your practice or looked into a tool like the

Mediator’s Start Kit or Woody Mosten’s Mediation Career Guide to help streamline the paperwork

and correspondence that a practice requires? A mediation practice is a business and it must be treated

as one. The truth is that many mediators today have moved laterally from law, psychology or other

fields where business management wasn’t necessarily a priority in the degree track. Good business

people say that it’s not how much you make, but how much you bring home that counts.

Deeper Learning.

If you always wanted to learn more about the psychology of conflict, reading body language, neuro-

science of the brain, neuro-linguistic programming, heart-mind coherence, connecting wisdom

traditions to conflict resolution or any other deeper learning, this is a great time for that. What makes

mediators truly masterful is understanding what is going on behind the curtain for the people at the

table. Reading the non-verbal signs that people are offering gives a mediator an insight that cannot be

measured. Wouldn’t you want to know more about what people are really thinking and feeling?


Work on You.

I have told the professionals who study with me for years that the people at the table are making up

their minds about you as you are introducing the process to them. Whether in joint session or private

sessions, while you’re covering confidentiality and your role as the mediator, they are sizing you up:

Is she smart enough? Is he compassionate enough? Is he old enough? Does she like me? Why does

he seem so stiff? Can I trust her if I tell her the truth? What a mediator brings into the room with

them, from self-confidence, temperament, body language, voice, presence and energy affects what

participants think of the mediator, it affects what information the mediator does and does not get to

hear, it affects the effort they put into the session, and it affects their optimism about getting a

resolution. Most of what a mediator brings into the room is unconscious. Masterful mediators

meditate or do something to cleanse themselves before walking into a mediation. Learning more

about one’s self and working on one’s energy and temperament can send a very different tone for the

day, and often bring about a completely different path for the day’s events.

In the end, the marketplace for mediation is a competitive one. Asking attorneys or clients why they

picked a certain mediator over the others, the answers are often mumbled. The primary answer in

commercial mediation is because that mediator settled the last case. The nuances listed above are

what makes the difference between settling 90% or more as opposed to 75% of the time.

In family law, the answers lean more to the experience and the mediator’s temperament. Those

answers lie above, too.

Here’s wishing you all a very happy new year, with lots of successful resolutions, and hoping you will

take the time to carve out some time for you – to grow and develop further and add some tools to that

toolbox. As the great UCLA basketball coach John Wooden once said, “It’s what you learn after you

know it all that counts.”

_____________

Lee Jay Berman is President of the new American Institute of Mediation based in Los Angeles and

author of the Mediator’s Starter Kit. He began as a full-time mediator in 1994 and has successfully

mediated over 1,300 cases. He is a Fellow in the International Academy of Mediators and a

Diplomat with the California Academy of Distinguished Neutrals and The Daily Journal named him

one of California’s 2008 Top Neutrals. He is Director of the “Mediating the Litigated Case”

program at Pepperdine’s Straus Institute in Malibu and was national chair of the Training

Committee for the ABA’s Section on Dispute Resolution from 2003-2007. He has conducted

trainings in Delhi, India, Amsterdam and Dubai, and has trained judges from the Kingdom of Jordan

and mediators from post-war Croatia. He can be reached at [email protected].



ABA Section on Dispute Resolution Journal

Practice Development, Business of Mediation and Skill Development Committee Columns

October 2008

Question:

I’m having trouble getting my mediation practice off the ground. I don’t really want to

mediate litigated cases, so how else can I make a living as a mediator?

Answer:

Just like there are many opportunities for those holding Juris Doctor degrees outside of the practice

of law, there are more ways to have a viable career in mediation that are outside of the litigated arena

than can be counted. Additionally, as we are beginning to see in more seasoned mediation markets,

as litigators see that the magic of mediation can be learned by taking a couple of classes, more

litigated cases are being settled without the need of private mediators. Together, this means it may be

time for the profession to begin considering “Life After Mediating Litigated Cases.”

The problem may be that we have defined the profession too narrowly. Because mediation’s

popularity was turbo-charged by its implementation in the courts, mediators have traditionally left

their basic mediation training courses and fled to the courts like ants to a picnic. Not that this is a bad

thing, after all, our litigation system was and is in need of mediators to help parties resolve conflict

more efficiently, more cost effectively, more creatively, with more voice to the disputants, and with

more choices. While the courts and the litigators may seem to be the gatekeepers of seasoned

disputes, they are also the most obvious place to look, drawing the largest numbers of mediators, until

the demand is met or exceeded, leaving more mediators than litigated cases, and not enough food at

the picnic for mediators to put food on the table.

While I built my career in the litigated case arena, I have watched those who entered our profession in

recent years struggle to gain enough traction for mediation (in communities where mediation is

newer), or struggle to get themselves cases (in more mature, competitive mediation markets). I also

believe that the surest way to make money in our society is to do the things that other people do not

want to do. In the world of mediation, I believe that means considering turning your back to the court

house and looking for the road less traveled. While these opportunities will not present themselves as

readily as litigated cases, the upside is higher and the competition is almost non-existent when you

create a new opportunity, rather than following others where the opportunity already exists.

The first step is to figure out where your education and career background intersects with your

passion. Mediators with backgrounds in aerospace will likely have different career paths than those

with backgrounds in teaching, the law or in real estate. Figure out which field interests you and seek

out or create a way to marry your conflict resolution expertise with that field.

Notice that because the mediation profession is relatively new, the field has been populated by people

moving laterally from other professions, and as such, mediators’ resumes and educational paths are

often made up of fields that are different than mediation and conflict resolution. The next generation

of mediators will more likely have degrees in mediation or conflict resolution, and will then endeavor


to find applications of those skills in other professions, where most of us practicing today come from

these other fields and are using those prior skills to define our specialty within the mediation

profession.

For those who don’t want to mediate litigated cases, think about your passion, and about your

qualifications, the following is a list of some ideas to research. This list is by no means exhaustive,

and is intended to start your juices flowing and wheels turning. Research thoroughly, take additional

training and course work as may be required, and have fun being a pioneer:

● Government. Many federal, state and local governmental agencies have laws or ordinances

mandating or encouraging the use of mediation. Many also hire mediators into salaried positions.

● Ombudspeople. Many college campuses, hospitals and large corporations hire ombudspeople to

handle conflict that arises within their organization. These positions are essentially mediators who, in

the end, are employed by the company to settle disputes. Opportunities here may arise in job

postings, but the idea might also be pitched to a large entity in your area who has not yet considered

such a position.

● Business. Corporations have tremendous need for mediators, but in most cases, they don’t know it

yet. While some of our colleagues are doing this work, the door is wide open for people to help big

business see the value added by having a mediator assist in situations such as mergers and

acquisitions, management and culture change programs, retention programs, and facilitating

management and board level meetings.

● Education. Parents fight with teachers, who are under siege from administration (or vice versa),

contract disputes arise, and somewhere in the mix students have troubles with each other and with the

grade their teacher gave them. Not to mention special needs children, where mediation is already

gaining a strong foothold. Education is a field with multiple stakeholders and high emotions. This is

a great arena for the future growth of mediation.

● Healthcare. Healthcare suffers from the same built-in stakeholder issues as the educational

system, with nurses leaving from burnout, insurance coverage disputes, patient and family relations

strained with the hospital, internal disputes between doctors and nurses, and administration and

employees, the health care world is ripe for the plucking for mediators. If your local hospital does not

have a mediator on staff, maybe they should. Kaiser Permanente, the large California HMO, is a

model example. Health insurance companies would be smart to consider adding staff mediators to

their claims department, too, if policyholder and provider retention is important to them.

● Academics. Just as we say, “There is always room for one more peacemaker,” there is also always

room for one more teacher of peacemaking skills. Whatever the grade level, teachers and trainers

who can deliver mediation training and inspire today’s youth to be tomorrow’s peacemakers will

always have a home. Some do it as consultants, marketing their training to public and private schools

and universities, others become full-time faculty, adjunct professors and full tenured professors. If

this is your passion, the number of dispute resolution programs is expanding exponentially – find one

or create one!

● Law Enforcement. While these positions are often filled by officers who have been trained in

mediation skills, law enforcement departments are increasingly hiring mediators to help resolve

issues between officers, “the brass”, and constituents.


● Community Mediation. If working hands-on with real people is your passion, then opportunities

in community mediation may be right for you. Often, governmental funding, grant funding, and even

funding from the courts can be available to fund community mediation programs. While some

funding only covers program administrators and staff, occasionally staff mediators may be funded as

well. Bringing peace to a community two neighbors at a time may be its own reward.

● Faith-Based. Because religions generally teach non-violence and peaceful dispute resolution,

those involved in conflicts that arise in these arenas usually do all they can to avoid litigation. This is

a place where skillful mediation, especially with a mediator who is well schooled in the religion’s

beliefs and in the skills required to mediate effectively in this setting, can thrive. Discussions in this

arena generally consist of very different subjects than what a jury would do with their dispute.

Mediators interested in reconciliation and forgiveness, rather than just settlement, will enjoy working

in this setting.

● Group Facilitation. While group disputes often turn to mediation after litigation has been filed,

these are very different mediations than the typical litigated cases. With multiple and diverse

stakeholders and complex and intertwined issues, these are generally long-term projects built around

collaboration, rather than compromise and problem solving more than settlement. With increasing

pressure for public policy change in areas of the environmental resources and green living, future

opportunities for group facilitation will be plentiful. While work in this area requires specific

training, including a deeper understanding of group dynamics, cross cultural issues, and possibly

environmental issues, training is available at places such as www.ConcurInc.com. This work can be

a nice niche for mediators who want to do more than “move insurance money around the table,” as I

have heard some mediators say. Public agencies, non-profit organizations, environmental groups and

NGO’s often engage in this kind of process.

● Settlement Counsel. Law firms are increasingly setting up ADR departments and looking for an

attorney to lead them in their pursuit of being ADR leaders in their local community. Litigators are

also increasingly hiring settlement counsel to assist with mediation advocacy in larger cases, advising

trial counsel and clients on settlement strategy throughout the course of a mediation. This is every

mediator’s chance to be on one side of the negotiation and actually pick up the hand of cards and play

it, for a change. For every mediator who has always wanted to say, “you’re offering too much!” or

“don’t drop that fast!” this may be the job for you.

● Courts. Many courts are now hiring ADR people, both as staff mediators, like Bob Rack at the

U.S. 6th

District Court of Appeals in Cincinnati, and as ADR administrators, like Julie Bronson, who

oversees 25,000 mediations per year at the Los Angeles Superior Court’s ADR Office. If it is the sole

practice nature of operating a mediation practice, and trying to get enough cases to feed your family

that makes you shy away from the competitive world of mediating litigated cases, these are

opportunities to put your training and experience to good use and have a steady paycheck.

● System Design. In addition to delivering mediation services, some mediators choose to specialize

in ADR system design, helping companies, agencies, courts and other organizations design dispute

resolution systems that move through a variety of processes until the dispute is resolved. A working

knowledge in dispute resolution systems and design is usually required, but those with advanced

degrees in dispute resolution can often find gainful work consulting to organizations in designing

efficient and effective dispute resolution procedures.

http://www.concurinc.com/


Lipscomb University’s Institute for Conflict Management believes so strongly in “Life After

Mediating Litigated Cases” that they have created an entire conference around it. Their first annual

Southeastern Mediators’ Summit is entitled “In the Shadow and Out of the Box: Realizing

Mediation’s Future” (http://icm.lipscomb.edu/page.asp?SID=168&Page=6150), scheduled for

December 1-3, 2008 in Nashville, Tennessee is focused entirely on the applications of mediation

skills outside of the litigated arena.

Mediate.com also lists, for their members, job opportunities in the field of mediation at

www.mediate.com/careers.

And finally, be sure to question how important it is to you to call what you are doing “mediation.”

The skill set in which you are trained and have been practicing, can be practiced under many names,

such as ombudsperson, employee relations, union negotiator, facilitator, manager, client relations,

customer service, project manager, committee chair, claims manager, human resources, peacemaker,

transactional attorney, business affairs, collaborative lawyer, broker, intermediary, department head,

administrator, moderator, diplomat, politician, and yes, community organizer. So think about

whether you are passionate about the mediator title or about practicing the skills, as they may not

necessarily be inseparable.

In any event, go forth, spread the word, multiply, practice the skills, do good work, make money, and

above all, enjoy yourself!

_____________

Lee Jay Berman began as a full-time mediator in 1994. He has successfully mediated over 1,300

cases and is a Fellow in the International Academy of Mediators and a Diplomat with the California

Academy of Distinguished Neutrals. He is Director of the “Mediating the Litigated Case” program

at Pepperdine Law School’s Straus Institute for Dispute Resolution in Malibu, and has taught

“Mediating the Complex Case” at Lipscomb University’s Institute for Conflict Management. He was

national chair of the Dispute Resolution Training Committee for the ABA’s Section on Dispute

Resolution from 2003-2007. He has taught mediation, negotiation and conflict resolution skills to

judges in India and the Kingdom of Jordan, mediators in post-war Croatia, and business leaders in

Amsterdam and Dubai, as well as across the United States.

http://icm.lipscomb.edu/page.asp?SID=168&Page=6150

http://www.mediate.com/careers


Mediation Strategies

Choose Carefully All Mediators Are Not Created Equal

By Lee Jay Berman

If a mediation is going to have a chance at success, perhaps the most important decision is

who will sit in the neutral chair at the head of the table. From case to case, that decision will vary.

Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right

mediator for each case. In a time where we have retired judges, litigators, transactional attorneys, so

called “recovering litigators”, and professional mediators available, and when more mediators are

specializing in particular areas of practice, here are 13 tips on the best ways to select a mediator

effectively.

■ The old days of each side picking three and scratching two from the other’s list, a process

that comes from the adversarial arbitration process is out. Even more so than arbitrators, mediators

must be selected on a consensus basis, rather than a least objectionable basis. The mediation has a

greater chance of settling the case if all parties buy into the mediator’s reputation, personality and

qualifications for a successful mediation.

■ Just because the “other side” proposed a mediator they have worked with before, that is no

reason to “ding” that mediator. Consider three things. First, the mediator has no ability to coerce or

pressure you or your client, or to make you agree to anything you don’t want to. Second, if the other

attorney is proposing a mediator they are probably doing so because they feel the mediator has the

ability to settle the case which means that mutually agreeable terms have been reached. Third, if you

are concerned that the mediator and opposing counsel’s working relationship may be too close for

comfort, ask the mediator some questions. Perhaps it is important in reaching a resolution that your

opposing counsel feel that he or she can trust the mediator, and that the mediator has the ability to

reach that attorney (or client) in a way that can be more persuasive than another mediator that they do

not know or that is not familiar.

■ Consider the mediator’s training in resolving conflict. While mediation is an art form more

than a science, there are many levels of tangible skills that mediators can study and learn to make

them better negotiators and facilitators. Some mediators on court panels have merely completed a

single 25-hour mediation course, while others make mediation their full-time career and study for

hundreds of hours with the best instructors in the world. Mediators often refer to their mediation

skills as tools in their tool box or the bullets in their gun. My website says, “If the only tool you have

is a hammer, you tend to treat most problems as nails.” The difference in the level of training your

mediator has in actual mediation skills (or how many tools they have to pull out of their tool box and

use) may be just the difference you need to get your particular case settled. After all, if settling the

case was easy to do, you wouldn’t need a mediator at all!

■ Consider the mediator’s tenacity. Lately I have been asked to do a lot of second mediations

for cases that went first to an ineffective mediator. All too often the attorneys tell me that the

mediator heard the initial dollar amounts that each side was looking to settle for and gave up too

easily, or didn’t have the skills or tenacity to see the case through to resolution. A mediator can only


keep going if they have the skills to keep trying different things, and if they have what some have

called “an iron rear end” and are willing to sit for as long as it takes to get it resolved. That tenacity,

or resolve to resolve a case, is one of the most important features to look for in evaluating a mediator,

or in interviewing other counsel who have worked with that mediator in the past.

■ Consider the other attorney(s) in the case and their clients and either ask them or size up the

type of mediator to which they would best respond. Some cases (and some opposing counsel) require

an authoritative voice of a retired judge or litigator with multiple decades of experience, others may

respond better to a persuasive, personable mediator who reaches people well and can see the big

picture. Some cases require a macho authority figure, while others may do better with a feminine

touch. It is important to consider variables such as these in each case. No case will be like any other,

since the personalities at the table will be different and will respond to different types of mediators.

■ Consider your client’s state of mind regarding the litigation. If they are highly emotional

about the case, they will benefit (as will you) from a mediator who can handle emotional parties and

gently guide the case to a smooth settlement. If they are stubborn and intransigent, they may need

logic and tenacious persuading. If they are weak decision-makers or are unsure about the fair value of

their case, they may need the authority of a retired judge or seasoned litigator.

■ Consider your own strengths and weaknesses. This may be the hardest part, but it’s critical

to know yourself with clarity. For example, if you have a strong, authoritative presence, you may

benefit from a mediator who has a softer touch to complement you. If you tend to be more left-

brained, or a more logical or linear thinker, you may want a mediator who is more right-brained, or

more emotionally attuned, and perhaps creative. If you have a client control problem, you may want a

mediator whose style is more directive. You will also need to consider your relationship with

opposing counsel and whether you want more of a facilitated negotiation or an evaluative appraisal of

the case.

■ Consider the timing of the case. If for some reason outside your control your case is ordered

to mediation before a particular date, and that date is too early in the case, you will want to select a

tenacious mediator who is dedicated to following the case through the litigation process. Experienced

mediators know that sometimes, the first day of mediation is the start of the mediation process, but

that additional key discovery may be required before a final settlement can be reached. In these cases,

a mediator who will take the lead in facilitating the discovery process will be an asset. For this, you

will want a mediator who is a real believer in peaceful resolutions, and not letting litigation get out of

control before trying to settle a case. This could range from a no-nonsense retired judge to a former

general counsel to a non-attorney mediator with business and economic sense. This may be important

in cases where you have general counsel involved in a case.

■ Consider the subject matter. It is not imperative, but it is helpful to have a mediator who

understands the nature of the dispute. If the dispute is a dissolution of a family business, it is helpful

to have a mediator who understands partnership and corporate law, business law and contract law. It

will be beneficial to have a mediator who is familiar with the workings of the particular industry in

which the family operates their business. It may be even more beneficial to have a mediator who

specializes in or grew up in a family business and understands the dynamics involved in these unique

situations. The important thing to consider in selecting the mediator is that they are familiar with

what it takes to discuss the issues and to reach a resolution. It is not enough for the mediator to

understand the legal issues, they must understand how to relate enough to the parties and their


counsel to bring the parties to a resolution they are willing to go along with.

■ Because such a large volume of cases going into mediation are doing so as a result of a

court order, you must examine the court program rules and the ability to select a mediator of your

choosing within the court’s program. Just because a case may be court-ordered, you may still have

the right to pick your mediator. Most courts allow the parties to select their mediators from a list of

available mediators. Many courts have followed Santa Barbara Superior Court’s successful Court

Administered Dispute Resolution (CADRe) Program by listing the mediators and making their

resumes available on the court’s web site. Take the time to review these resumes and comb for the

qualities described above.

■ If the court doesn’t assign the mediator to a case, you should request resume information on

the potential mediators if it is not made readily available to you. Allowing the court to select the

mediator for you when you have the ability to participate in that decision is doing your client a

disservice. Furthermore, even when the court offers a list of “approved” mediators, that should not

limit your ability to select and hire a mediator of your choosing if you do not see one on the court

panel that has the qualifications that you want. What should be more important is actually settling the

case. That is, after all, the only reason to begin the mediation process

■ Ask colleagues. But ask questions that will give you useful information such as what has

been outlined above. Ask specific questions about each of these points, rather than simply asking if

your colleague liked the mediator or thought he or she was competent. Even less informative is

asking whether the case settled, since there are so many variables involved in whether a case settles or

not that the mediator may have been unable to overcome all of them.

■ Finally, there is the list of things not to do. The dartboard approach is out. So is the “pick

an address label from this random list offered by the court” method. Coin flipping is shameless. And

picking the one with the biggest ads in the legal periodicals may not tell you enough, either. Often

times, name recognition simply means a mediator markets well, but does not necessarily imply

competence or appropriateness for your case. Letting opposing counsel select without asking any

questions of them is paramount to telling them you are not planning on taking the mediation process

seriously and do not care to put the effort into it.

The mediator you select may be the most important decision you make regarding the

mediation. Regardless of whether the mediation is ordered or voluntary, take the time to pour

through resumes, ask colleagues, and do the appropriate research. Make the decision wisely and

settle your case!

Lee Jay Berman is a mediator and trainer based in Los Angeles. He can be reached at (310) 478-

5600 or [email protected]

Berman - Impasse is a Fallacy

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