Lommen Abdo attorney Jamie Johnson is back on Midwest Law Talk with Joseph Wetch, this time discussing what makes mediation effective.
Jamie Johnson answers the following questions, and more, in this episode:
- What are the key factors to successful mediations?
- Why is understanding the other party’s perspective crucial for engaging in productive dialogue during mediation?
- How do mediators maintain neutrality and encourage parties to explore the strengths and weaknesses of their positions?
- What is the mediator’s preparation process, including the collection of confidential submissions?
- What are the insights provided about court-ordered mediations and the potential use of mediation arbitration?
- What are the important considerations in selecting the right mediator, preparing effectively, and timing for successful mediations?
- How can interested individuals contact James Johnson for his mediation practice?
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. I’m a Minneapolis Minnesota lawyer practicing in the civil dispute space. Today on the podcast is Lommen Abdo lawyer James Johnson. James is here to discuss what makes mediation effective. James, welcome to the podcast.
Jamie Johnson: Thanks Joe, and you can certainly call me Jamie. People who know me for a while, I’m familiar with that. When they ask for Jim on the phone, then I know they don’t know me. I go by either James or Jamie. Anyway, that will work.
Joseph Wetch: Thank you, Jamie. Before we talk about what makes mediation effective in this episode of Midwest Law Talk, why don’t you tell our listeners just a little bit about your mediation practice here in Minnesota and Wisconsin?
Jamie Johnson: Yeah, well, I have an office in Hudson, Wisconsin and licensed in both states, and so people can travel to me, I can travel to them if necessary, but I have handled cases from everything, timber trespass, domestic relations, otherwise known as family law, bad house cases, construction cases, real estate, and not to mention personal injury. I’ve been a litigator for 33 years and for over the last decade I have mediated as part of my practice and I’m working towards getting that to be the majority of what I do. Like I said, I’ve seen a lot in those 33 years and I have generally good success in settling cases. Not all settle during the mediation, but I think virtually every one of mine has settled shortly after the mediation, but certainly before trial. It can take one hour, or it can take all day. I’ve run the gamut as far as the length of the mediations.
Yeah, so if people aren’t sure whether or not they’ve got an issue that should be mediated, they’re certainly welcome to give me a call and we can run through the process. But it does take two or more. If there’s three or four parties, I’ve done up to five party mediations before and successfully resolved them. I think you won’t know until you ask. I have a pretty flexible schedule so I can accommodate folks, like I said, either in the office or out.
Joseph Wetch: Now that alternative dispute resolution methods such as mediation, mediation arbitration, arbitration, and those types of things have arisen in the litigation sphere and dispute resolution, we have to talk about things that make it effective. If they’re not effective, then people aren’t going to do them. What things make mediation and these alternative dispute resolution methods effective, Jamie?
Jamie Johnson: Well, I would say it comes down to timing and preparation, and those are two separate concepts. Within those, there’s lots of … We could talk about for an hour actually. I’ll start with timing. The question is, are the parties ready to mediate? With the parties, obviously there are attorneys. Some people think that because of the cost of litigation, they have to get in there and mediate immediately. There’ll be some cases where that is appropriate. If there is complexity to the case and/or it’s just too hot of an issue, there’s too much emotion involved, the timing may not be good to have it done right away. When you ask, “Are the parties ready?” There’s two things underneath that as far as being ready. That is one, understanding not just your case, but the other side’s case. All right? Understanding your case and then secondly is have you discovered enough about the other side? When I say understanding the other side’s cases, trying to look at it from their standpoint.
When parties hire lawyers such as you, Joe, they’re looking for an advocate. They’re looking for somebody who’s going to tell their story. Mediator is not going to be that person. A mediator is not an advocate. In fact, a mediator is pledged to be neutral and often an effective mediator will push the parties on their cases. You’re not going to get a cheerleader when you get a mediator who’s trying to resolve the case. You want to get somebody who will probe your case and make sure that you understand where the other side is coming from. If you can’t list at least three weaknesses to your own case, then you may not be ready for mediation. Now how do you get to understand the other side’s case? Well, usually there’s initial what’s called paper discovery, where you request documents, what are the documents that support the other side’s case you want to review all of them and any communications that support their case.
Then, the other is depositions. I find that depositions are helpful in getting parties ready to mediate because they’re able to vent. Whether it’s family law, real estate, personal injury, there’s some emotion usually involved in any legal dispute. That deposition process helps in the venting, because the person feels like they’re being heard. If the parties have had an opportunity to give their side of the story, so to speak, and by the same token if the other side has been able to answer the questions of your attorney, then you’re able to better understand where they’re coming from. Whether it’s documents, depositions, I just think playing your cards close to the vest kind of puts a damper on the mediation if you’re trying to play hide the ball. You have to have a willingness to share your case, warts and all, with the other side. Hopefully you’ve got a lot of strengths, otherwise you don’t want to be in litigation if you don’t have a strong case. But, mediation is that opportunity to present those strengths that you do have. Are the parties ready?
Then preparation, it’s not just the parties that need to prepare but also the mediator. When it comes to that preparation and timing, I think that some type of conference between the attorney and his client or her client are important because the attorney needs to explain what’s going to happen. If the attorney and the client are meeting only for the second time at mediation at the mediator’s office, it’s going to be very hard to get the case resolved because people get nervous when they’re in new settings. Many people are strangers to mediation and if they don’t understand the process, they don’t relax, they can be nervous. That acts as a roadblock to trying to get the case resolved. Making sure that the person understands that … When I’m a mediator, that’s where I start every mediation is explaining the process, making sure that these people have a clear and correct understanding of what is or is not going to happen at mediation. I think that timing, preparation really key points to effective mediation.
Joseph Wetch: You mentioned that the mediator has to prepare and obviously you want a well-prepared mediator for the session. How does the mediator prepare for the session?
Jamie Johnson: Well, what I do is I always ask the parties to submit confidential submissions because I want full candor. If I tell them that I’m going to share everything that they tell me, people are going to be hesitant to play all their cards, they’re going to play them close to their vest. That’s the first thing I do is encourage generally five business days before the mediation, I want to receive what the party’s positions are, what they identify as the key issues, and what is their goal, what would their range be? Because usually it’s about amount of money, but what sum of money would they be willing to pay or would they be willing in the case of a plaintiff to accept to resolve their differences? I always ask the attorneys to put in their submissions the strengths and their weaknesses.
Often I’ll get long paragraphs about their strengths and then very minor, if any, concessions on weaknesses. Then when that happens, then I know I’ve got to work on that part. I think that giving the right amount of information, you don’t want to overwhelm the mediator number one. It adds to the expense if you give him a reams of paper to have to review and your important points can get lost. I think it’s important for the mediator to understand what are considered the main points, what do you consider to be the best evidence to support those points, and then something on the law, if it is a dispute that involves an unusual area of law, one is like timber trespass for instance where somebody usually unknowingly, it’s rarely intentional but doesn’t know where the property line is and goes and cuts down trees that they think are on their property and that, oops, they’re on the neighbor’s property.
There’s statutes that deal with that. If you don’t deal with that area of law every day, you’re not going to be familiar with it. That’s why if it is somewhat unusual or a rarely used area of the law, it’s good to provide the mediator with the most current law on that subject. If the mediator has the law and the facts, the other stuff will kind of fall into place, but that’s what they need to do before they ever meet the parties.
Joseph Wetch: What about the parties themselves? They have to do certain things to make sure that they’re prepared too before they come into mediation, like resolve liens and subrogation interests or be prepared to have those resolved, don’t they?
Jamie Johnson: Yes.
Joseph Wetch: They have obligations too.
Jamie Johnson: When you’re talking about liens and subrogation, it would be in the example of a personal injury case. Somebody who maybe they’re over 65, so they’re on Medicare or maybe they’re on government insurance or maybe they have their own private insurance who paid their medical bills and those entities, Uncle Sam or name your private health insurer or HMO, if they’ve paid out money under some contract that you have with them, then they’re going to expect to be repaid. If you don’t contact them in advance of the mediation to find out what they’re expected to be repaid, it’s going to be very difficult, virtually impossible for you to try to do that during the mediation because people are busy, they won’t necessarily answer their phone in that two to three to four hour time period, and you may not get down to the brass tacks.
That’s why it’s important for the party’s attorneys to do that legwork ahead of time, contact those other attorneys or other parties that have interests in the litigation to find out what it is that it would take to repay them and satisfy them to sign off ultimately on a stipulation, because that’s what you’re working towards at a mediation, is an agreement to settle the case. You’re not actually fully settling the case until a release is signed and an order of dismissal of the lawsuit is filed.
Joseph Wetch: What happens if the case goes through, let’s say you go through a whole day of mediation and everybody works hard at it and you just don’t get it done?
Jamie Johnson: Well, and again throughout the day, what you try to set it off at the beginning, get the person the party comfortable, and then you set their expectations. If you can tell right away, if they give you in the mediation submission, I want $150,000, and when you review all the materials as the mediator, you’re thinking this is never going to settle for more than 50, then you want to start working on that person’s, their expectations and tell them, “I know that you want a quarter of a million dollars, but I’m just telling you now, you’re not going to get that today.” Being clear up front, now you might be able to get this much, but I don’t know that because I haven’t talked to the other side. I don’t know where they’re willing to go, but I just want you to understand that we have to be flexible today.
If they have the right mindset, and again they’ve worked through their emotions and if they understand where the other side’s coming from, it’s a lot easier to gain that flexibility you need from each party. Ultimately, the mediator’s job is to get an overlap of the positions or get them very close, but you can’t always do that. Sometimes you can work and work and get that party who is expecting 150 and you get them to that 50,000 that you think is the neighborhood where it can settle, but then the problem is on the other side you can only get them to 40. You got this $10,000 gap.
Depending on the facts of the case, I usually do a mediator’s proposal, whether it’s three hours, four hours or eight hours that we’ve been at this. I’m going to say, “Look, the parties, you’ve expressed what your bottom line is today, we’re not going to get this settled today. But, based on what everyone is saying, I really think this is a case that ought to settle at …” And then you name the number and I’m putting it out there for both sides to consider. Either side can tell me no, but unless both sides say yes, you won’t know if you were the only one to say no or not. It’s called a double-blind. I throw that out there, a number, and it may take a day, it may take a week, but you want the people to at least be thinking about it and you need to put a timeline on those mediator proposals, otherwise the parties just won’t get back to you.
A good mediator will put out a proposal that is within reach for either side if they will move that extra amount and then follows up with those saying, “Hey, it’s been a week, I made this proposal, I haven’t heard from you. What’s your client’s position on that?” You want some follow up from the mediator in order to see if that proposal he threw out there, which maybe neither party was willing to accept at the time of mediation, but I find that it’s very frequent that that ends up getting it done when folks are looking at another 10,000, 20,000, 30,000 in fees and they’re being asked to resolve a gap that’s less than $10,000.
Joseph Wetch: Jamie, that actually just worked for me recently. Last week actually, I was in a mediation and we failed at the mediation, but the mediator made a proposal, not a $10,000 gap, but a significant gap, and we were able to resolve it after the mediation through these post mediation efforts. I can testify that they do in fact work.
Jamie Johnson: Yes, definitely. Some people think, well, it didn’t get settled that mediation must be a failure. No, it’s not necessarily a failure because you have to understand your goal. While the goal of the mediation may be to resolve the case, maybe it’s just to get the parties in the same neighborhood or maybe your goal in the mediation is to get that neutral mediator’s input on your case. I’ve had cases where my client was very adamant that the case was never going to be worth $50,000, and I was trying to tell the client that it might be worth more. Then we had the neutral mediator say, “No, you guys are way too low. This is never going to settle for less than a hundred. Just be prepared that you’re going to have to get into six digits.”
As the attorney, I wasn’t necessarily being the “hard-nosed attorney” or somebody who had the bearer of bad news, here’s this neutral third party who’s telling you that your position is too strident. That can be a big benefit in the case. Sometimes it’s helpful to have a third party give you support as well and let the party know you’re not being super unreasonable here. I think that I agree with your position on X, Y, or Z, but let’s see if we can get this resolved or close to resolved. That’s successful Mediation in my view is one where if you haven’t didn’t have full understanding of the other side’s case you do at the end of the mediation.
Joseph Wetch: Now mediation is typically a voluntary process, but in some instances it’s court ordered. What makes a mediation effective when it is court ordered?
Jamie Johnson: I think, again, it goes back to timing. What I have seen in the scheduling orders where the judges require it, in fact I would say most Western Wisconsin counties, judges will not give you even a jury trial date unless you’ve proven that you’ve attempted to mediate the case. That deadline is somewhere after five or six months of discovery has occurred. Judges do that on purpose. Now, the parties can choose to mediate very early before they’ve spent $10,000 or $15,000 in a attorney’s fees and court reporter expenses and or experts, and it could be even more than that that they’re looking at.
They may choose to mediate before incurring that expense, but judges will typically give them a deadline that’s coincidental or a week or two before the trial scheduling conference. That way, when you’re back in front of the judge and he’ll ask, “Okay, did you folks mediate? Who did you use? And was it successful?” Generally, if the parties are in front of the judge at that trial scheduling conversation, it means it didn’t settle because if it did, one of the parties would’ve written to the judge and told him, “We got it resolved and you need to give us 45 days to get the paperwork in.”
Joseph Wetch: I see. Have you had any experience with the tool called mediation arbitration, the combination of the two?
Jamie Johnson: I did as a litigator. This was 25 years ago before mediations became almost mandatory in Western Wisconsin. It was unique because you’re sharing information about your case to somebody who’s ultimately going to decide whether they agree with you or not. A pure mediation, the mediator does not take a position on what the case is worth or what the final full value of the case is. With an mediation arbitration, you’re hearing each side’s positions where they’re starting from and what they’re arguing supports their position. If it can’t get settled, then the parties have to agree in advance that they will abide by whatever number the mediator sets at the end of the mediation/arbitration.
It’s very rare, at least in Western Wisconsin. For those people who do want to see finality, they want to end the litigation, it is definitely an option that helps because maybe somebody doesn’t want to voluntarily go to 75,000, they’ll go to 50 and the other side will go to a 100. I’ve just seen a lot of arbitrators, whether it’s mediation arbitration or straight arbitration where their final number just happens to be somewhere in the middle. It’s rare that an arbitrator goes all in on one side or the other.
Joseph Wetch: Well, as we sort of wrap up here, Jamie, any last thoughts on mediation and what makes it effective in the first place?
Jamie Johnson: Well back on May 9th, you and I did podcast about how to choose a mediator. I think that, again, that’s a long topic with a lot of sub-parts, but getting that person who’s got the experience and the personality is important, but then having them properly prepared and then asking them to mediate when the timing is right. I just can’t stress timing and preparation can be the great equalizer when it comes to differences between mediators and differences between attorneys, because when it comes to litigation, the strongest attorney doesn’t necessarily always win. It helps to have a strong attorney, but if they’re a good attorney, they’ll also understand the weaknesses of the case and they’ll also know when the timing is right to settle the case. If you’ve got good timing and you would send the right materials to the mediator and get them well-prepared and get your client well-prepared, your chance of having an effective mediation go sky-high.
Joseph Wetch: Tell folks how they can get in touch with you, Jamie.
Jamie Johnson: Sure. They can call, my direct line is 715-381-7105 or just email me at jamesj, that’s J-A-M-E-S-J at Lommen, L-O-M-M-E-N dot com.
Joseph Wetch: Jamie, I want to thank you for coming on the podcast today. It was very informative.
Jamie Johnson: Well, thanks for having me, Joe. I appreciate it. Always like talking to you.
Joseph Wetch: Thanks so much. Folks, if you have any questions about Jamie and his mediation practice, be sure to contact him at the number he gave or through his email at firstname.lastname@example.org, or you can reach him through our website at www.lommen.com. That’s it for this episode. Tune in next time, we’ll have more interesting information on Midwest Law Talk. Thanks for listening. Have a great day.