Lommen Abdo attorney Jamie Johnson is back on Joseph Wetch’s podcast Midwest Law Talk to teach us more about mediation.
Jamie Johnson answers the following questions, and more, in this episode:
- Who are mediators?
- What qualities does a good mediator have?
- What kind of training or experience is needed to be a good mediator?
- Are mediators a jack of all trades, or do they tend to have areas they specialize in?
- What sets Jamie Johnson apart from other mediators in the area?
- How does the fee structure work in a typical mediation case?
- If live outside of the metro, do you need to travel to see a mediator, or can they travel to you?
Listen to the episode on Spotify here, or on Apple here.
You can also find a transcript of the episode below:
Joseph Wetch: Hello and welcome to Midwest Law Talk. I’m your host Joseph Wetch. From Minneapolis, Minnesota lawyer practicing in the federal and state civil dispute and trial space. Today on the podcast is Lommen Abdo lawyer, Jamie Johnson. Jamie is here to talk about mediation and how to best choose a mediator to help settle a dispute. Jamie, welcome to Midwest Law Talk.
Jamie Johnson: Joe, thanks for having me on. Happy to be here.
Joseph Wetch: So Jamie, tell the listeners, just who are mediators?
Jamie Johnson: Well, mediators are a special group of people who I like to think of as problem solvers. They are there to get disputes resolved. And resolved in a manner that the parties may not be thrilled with, but that they are willing to live with. Often, mediation involves some type of middle ground, but not necessarily. I think mediators though, there are lots of traits and qualities that a good mediator needs to have.
Joseph Wetch: What would some of those be?
Jamie Johnson: Well, I think number one is experienced. And by experienced I mean just that. Not just a lawyer who has been a lawyer a long time. But a lawyer that has worked in the area of dispute resolution, who has represented both plaintiffs and defendants, people suing and people getting sued so that they understand what the fight is entailed in court. And that quality of understanding the battle is where that experience takes years to develop. And then not just legal experience, but also life experiences. Of being out in the community, having been raised in a setting that a lot of people will be able to maybe have common experiences with. Those are all important. So that’s the background. The other is a quality reputation for some major things. Number one, high ethical standards. Somebody who is going to be trustworthy, that you can tell them very confidential things and they will keep it confidential.
Impartiality. Absolute necessity for a mediator. Somebody who’s going to be neutral, not favoring one side or the other. But remaining impartial and objective. Most people who are in mediation, they’re advocating for their position. And they’re only seeing it really from their point of view. A quality mediator is somebody who can step in both sides shoes and look at this problem from their standpoint. So it’s empathy, but it’s also objectivity. Not getting swayed then by the emotions that come with standing in those shoes, if you will.
Couple other traits that separate good mediators from the ones who are just average, and that is perceptiveness. Being able to pick up on the social emotional cues, so to speak, that people have. And patience. They have to be good listeners. And they can’t expect people to change their position in a matter of seconds or a few minutes. It sometimes takes hours. So you need somebody that has patience, and along with that patience, tenacity. Somebody that is going to have persistence and dedication to see it through, to get to the resolution. So again, a good reputation for trustworthiness, impartiality. And that somebody that can display empathy, but also patience, tenacity. And being perceptive to pick up the clues that may be necessary to find out what is it really going to take to resolve the dispute.
Joseph Wetch: Do mediators go through any type of special training to kind of hone those skills like perceptiveness and listening skills, develop more empathy, anything like that? Or is that something that’s just developed over a time and experience?
Jamie Johnson: Yes. It’s really both. It is both. Because I’ve seen some people who are excellent advocates, excellent trial lawyers, but they make lousy mediators. Because they are trained as advocates and that’s what they do. Now, that ability to be objective and impartial does take some other training. And for example, I went through a 30-hour course. So it was three, four hours a night for, I think, it was 10 weeks. And in which it’s led by somebody who has a degree in the law, but also training and psychology and so forth. So there is some training, where you practice and hone these skills in that training. So you can take a continuing legal education as well that will update you on trends in the law, but also just trends in human psychology. Understanding how to keep your emotions in check. I’ve actually taken a CLE that was six hours long, that was basically stressing the importance of being able to keep your emotions in check.
Joseph Wetch: Do mediators specialize in anything? Like construction or intellectual property or…?
Jamie Johnson: Absolutely. And that’s because there’s all kinds of disputes. Our disputes can range from family disputes, employment disputes, commercial, neighbor disputes. People fighting over property lines, and driveway easements and so forth. And it can be as widespread as environmental issues. Where a river is being polluted. Or some habitat for a species is being threatened. So there’s a wide range of disputes. And so it can help to have somebody who has experience maybe litigating those, or mediating, and coming to resolution. I spent 98% of my career now, or maybe 95%, I would say, in civil area. But having some criminal training does help there. Now criminal cases are usually resolved with either a conviction or an acquittal. There’s not a whole lot of middle ground. But many times there will be probation and restorative justice will be a part of that. And that’s where the victim and the perpetrator get together.
So even in the criminal area, there can be ways of mediating a resolution that would save the parties the emotion and expense of a trial that could cause an all or nothing type of result. So having most of the cases I’ve handled be injury cases, but yet I also have commercial training. And I’ve also, like I said, had some of that criminal. Landlord/tenant’s another area. That, while it’s not a 100% of the cases that I’ve had, it’s been a smattering over the years. Enough for me to understand from both the landlord and the tenant perspective the issues and problems that they’re faced with. And how do they move forward without a result that’s an eviction, for instance? Or leaving the landlord with months and months of unpaid rent.
Joseph Wetch: So you act as a mediator in Wisconsin and Minnesota, is that right?
Jamie Johnson: Yes. I am licensed in both states. And while my office is located in Wisconsin, we’re right on the Wisconsin/Minnesota border. And I can handle cases from both states.
Joseph Wetch: And you will travel?
Jamie Johnson: Yes, I do. And I travel for the clients that hire me to advocate for them. And I go as far as four or five hours travel time, but I can do that for mediation. And many times that’s helpful, because some parties can’t travel. But if they’re looking for a mediator who has experience in their area and they want to be face-to-face. Which I happen to personally think is the most effective way of mediate, is face-to-face. If the parties are splitting the expense. And I will give a break on my hourly rate for the travel time, so that it’s less of an expense than the parties paying their lawyers to come to me.
Joseph Wetch: Do you have any experience with doing mediations over Zoom or Microsoft Teams? Or anything like that?
Jamie Johnson: Yes. And that is Zoom. I’ve done those. And confidentiality can be kept very easily in that setting. I’ve even done them just by telephone, which is the older technology. But again, as long as you can keep the parties separated and confidential, they’re more likely to have candor with you and share things. I like to be able to see them. So Zoom is better than telephone. In person, better than Zoom. But I still do Zoom. And these days you have to, if you’re dealing with a company whose representative is in California, or the East Coast, or something. And the case is venued here in Wisconsin or Minnesota. It’s a necessity. You don’t want to make somebody get on a plane to fly, but yet that person is critical to getting the case results. So I think Zoom can be just as effective. Just in my experience, I’ve had a little bit higher success when people don’t just necessarily get exasperated and want to just push the leave button and leave the mediation.
Joseph Wetch: Well, when I started practicing law about 22 years ago and we were doing mediations, it was routine for insurance company representatives to be forced to come on a plane and come to mediation. And so…
Jamie Johnson: Yeah.
Joseph Wetch: Mediations would almost always fail if the claims representative was not there in person. But now that’s kind of gone away with the evidence of Zoom.
Jamie Johnson: Yeah, I think Covid had a lot to do with that, Joe, frankly. Because I’ve been at this for 33 years. And 25 years ago, even 20 years ago, the insurance companies had more local claim reps. One of my clients had representatives that were officed in Eau Claire, which is only one hour from our office here. And then when companies became more centralized, that local office went away. And then it was Milwaukee, which was four and a half hours away. That’s fine. Sometimes we would meet in the middle. If it were another party that was from Western Wisconsin, we’d meet in the middle and mediate there. And then once they became more national and then Covid hit, which no one could be in person, all of a sudden they recognized, “You know what? This Zoom thing can work when you’ve got good technology, good camera, good microphone, and somebody who knows how to use the technology.”
Joseph Wetch: So what sets you apart, Jamie, from other mediators in the area? Why should people choose Jamie Johnson?
Jamie Johnson: Well, I think that it goes along with, first of all, somebody who’s effective. I have been highly effective at getting the cases brought to me resolved. I’m not a 100%, I’m not going to represent that to be the case. But in those few instances where I haven’t been able to get it done at the mediation, I’ve had instances where the parties then ended up settled where I told them, “This is where you’re going to need to get in order to get this case settled.” Sometimes it happens a week after the mediation, sometimes a month after. And one time I had the parties come back to me in person. And so we went at it for a total of nine hours. Five hours the first time, and four hours the second time and it eventually got done. So I think it’s that tenacity that I have, because I see my role as being the problem solver.
My job is to be objective. I don’t have to advocate for one side or the other. But I do have to have those parties be able to see the case from the other side’s viewpoint. And that ability to relate to people is the key. You’ve heard the phrase people person. I like to think of me in that way. I come from a blue-collar background, grew up on a farm. And I’ve always been a social person who likes to engage folks. I like to listen. And I was taught empathy at a young age. And so those qualities then mirror what it takes for a quality mediator. You could be the best trial lawyer in the world, but if you can’t get parties to come together to resolve their dispute, you’re not going to be effective as a mediator.
Joseph Wetch: So in terms of expense, how is that handled among the parties if they decide to go to mediation?
Jamie Johnson: Sure.
Joseph Wetch: How is the mediator’s fee…? I assume there’s a fee involved, or I know there’s a fee involved. How is that handled between the parties and…?
Jamie Johnson: Right. Well, so it’s split by the parties who have an active role. Let’s take typical case where there’s one injured plaintiff, and there was two drivers. So you got two insurance companies who are defending the case and each is pointing at the other as far as causing the accident. So all three of those parties would be active participants. And then the plaintiff is going to say, “It’s going to take…” Let’s just pull a figure out, “$50,000 in order to settle this case.” And you have the two other defendants. The two defendants are each thinking that the other side is more at fault. Ultimately, if you can get one side to offer enough money that will combine with the other defendant, and you can get that to overlap with the plaintiffs, that’s where you can get to a resolution. Even if you can’t get it settled at the end, everyone agrees going into this.
And I do agreements to mediate ahead of time where people know, “All right, my fee is going to be this much.” Typically, it’s in the area of $350 an hour. All right. And then that’s going to be split, however many ways, of the people who are actively participating in the mediation. Now, there may be tertiary parties who have what’s called a subrogation interest. Maybe an insurance company paid $2,000 for medical expense. Their $2,000 interest in a $50,000 or a $100,000 case is not enough for them to actively participate. So they don’t share in the fee split with the mediator. But if it’s just one defendant, one plaintiff, then it’s going to be split 50/50. I’ve done cases where it was a five party case. One plaintiff, four defendants. And I got each of the four defendants to contribute enough money to be able to satisfy the amount that the plaintiff was looking for.
And we were able to end the case. My fee was split five ways. And my fee is just all determined by the hour, based on how much materials I have to review. And typically it’s going to be in the range of an hour to two hours of preparation goes into a mediation. And the typical mediation will take 90 minutes on the very shortest end, to seven, eight hours. But most typical is I would say four hours. So if you have a semi-complicated case that takes 90 minutes of review of hundreds of pages of materials. And then four hours of mediating. Well that’s a five and a half hour bill, times 350, that’s going to be less than about $1,800. And so again, that’s split either two or three ways, or four ways depending on the number of parties.
Joseph Wetch: That really is cost-effective way of getting somebody involved like yourself to try and resolve a dispute. Short of going to all out war and trial.
Jamie Johnson: Oh, yes. And that’s the thing is, having that impartial, neutral person objectively looking at the case is important for the plaintiff to hear who’s bringing the lawsuit. Because his attorney has been advocating for him, cheerleading him so to speak. And telling him his case is worth a $100,000. Meanwhile, you’ve got the other side, the defendants who feel that they’re wrongfully being accused of causing this. They think that the plaintiff’s injuries were caused by somebody else. And so their attorney is advocating that they pay hardly anything at all.
And so having that person who can say, “Folks, this is what I think if it goes to trial, the jury’s going to hear this. Here’s your range of potential outcomes. And what I think you’re going to need to look at this really hard and cost effectively. Is it even worth, even if you win spending another 25,000 on a case that if you lose, you might pay another hundred. So here’s your risks and the pros and cons of the case. And then when you can get it resolved…”
Let’s take that instance of a case where they’re seeking a $100,000, the other side doesn’t want to pay anything. And you get it settled for $35,000. You’ve saved that party who was looking for a hundred, but could have gotten zero, months and months of mental anguish. Not to mention costly expense. And likewise for the defense. They could have lost, even if it was half as much as what the plaintiff was seeking, that’s still more than they end up paying and getting it resolved early. So again, you’re looking for an outcome that’s not necessarily going to favor just one side or the other. But is going to bring a resolution that the parties can live with and move on with the rest of their life.
Joseph Wetch: As we sort of wrap up here a little bit. Jamie, any last thoughts on mediating in Minnesota and Wisconsin over the past few months and into the future here?
Jamie Johnson: Yeah. Well, I think the big thing is getting on a counter, because mediator schedules can fill up. If you’re thinking that you’re going to have a mediation at some point, whether it’s even before you bring a lawsuit or after. Get ahold of the mediator because they can run a conflicts check, and make sure that they haven’t represented somebody who’s close to either party. And then get a date that could be as much as two, three months out so that the parties get properly prepared. But I think it’s, communication with the mediator. Let them know what’s coming down the road. And that is, it’s critical that you decide to move in that direction sooner rather than later.
Joseph Wetch: Well, thanks for coming on Midwest Law Talk, Jamie. Why don’t you tell our listeners how they can get in touch with you?
Jamie Johnson: Sure. My email is James J, that’s J-A-M-E-S-J@lommen, L-O-M-M. That’s Mary Mary Edward Nancy.com. So jamesj@lommen.com. And my direct desk phone is 715.381.7105.
Joseph Wetch: And you pick up that phone yourself if you’re available, right?
Jamie Johnson: I absolutely do. Yes. If it goes to voicemail, it means I’m probably in court, or on the other line.
Joseph Wetch: All right. Well, thanks for listening to this episode of Midwest Law Talk. I’m your host, Joseph Wetch. Please subscribe and review this podcast on your favorite platform. Until next time, please take care and be safe.