We often hear the phrase “He just needs his day in Court.” This phrase can mean any number of things, but I think it often means a person really needs the opportunity to be heard. Sometimes a person just needs a third party to hear both sides of an issue and help find the resolution.

These needs can be met in a productive mediation session. While I do not declare a winner or loser in mediation, I think if I do my job properly and the parties determine that it is in their best interest to settle, then both sides feel that, to some extent, they’ve won.

We’ve all heard the old saying:

“A good settlement is when neither side is happy.” I understand that, but I think that it misses the point. Rather, I would say, “A good settlement is when both sides factor-in the pros and cons of continuing litigation versus reaching a settlement, and determine that it’s in their best interests to settle.”

Mediation, like litigation, is about risk. In assessing the risks, attorneys and clients have to consider numerous factors — including costs, probable results and demands on their time.

I recently conducted, in the same week, a will contest involving a multi-million dollar estate and a medical malpractice/wrongful death suit. They were two entirely different cases, but the emotions — and the needs of the parties in both cases — were very much the same.

My primary objective in both cases was to allow the parties to be heard. I took the time to peel back the proverbial layers of the onion, and explore the emotions involved. There was some cussing, a few tears, and plenty of venting. However, through it all, there was healing, and — ultimately — resolution.

One party wrote me after her mediation.

Here’s a brief excerpt from her letter:
I just wanted to thank you for all your efforts to get a fair resolution of our suit. The last 14 months have been an emotional roller coaster for my sister and me. Our frustration has been with the legal system, but it is over and we thank you. Because of you and our attorneys, we feel vindicated and have received justice. Thank you from the bottom of my heart.

Needless to say, her letter made my day. It reminded me why I love what I do. The woman who wrote it clearly felt she’d been given the opportunity to be heard. Moreover, the process worked in another very important way. It gave her a genuine sense of closure.

I’d call this an absolute Win/Win resolution, and I love being part of mediations with this kind of outcome. In the past, I’ve written about the importance of listening, and techniques for being an effective listener during mediations. I’ve said it before: Listening is at the heart of what good attorneys do during mediations.

All of which is why this one piece of advice is also worth repeating: Never underestimate the importance of giving your clients the opportunity to be heard.

Enjoy the journey.

As an undergraduate, I majored in finance, but I’ve always been something of a student of marketing — and I love great ad campaigns. By “great,” I don’t just mean the ones I enjoy — but the ones that really stuck with me, and delivered results for the companies who paid for them. Here are just a few that come to mind immediately:

  • Wendy’s “Where’s the beef?”
  • GEICO’s original Caveman ads
  • Verizon’s “Can you hear me now?’
  • AllState’s Mayhem character

One current campaign I particularly like is AT&T’s “Just Ok Is Not Ok” series. It’s the campaign featuring, in one spot, a surgeon who walks into his patient’s waiting room announcing, “Guess who just got reinstated!” — and, in another, a mechanic who tells a prospective customer, “We have a saying around here: If the brakes don’t stop you, something will.” When it comes to choosing surgeons and brake specialists, just OK really isn’t OK.

The same goes for attorneys in mediation.

I have to confess that, in my former career as a litigator, there were times when I approached trials or mediations with a less than stellar attitude. Not that I ever simply “phoned one in,” so to speak, but I have to admit that some of my smaller, less interesting cases didn’t get the same enthusiasm as the bigger ones did.

In my current role, I’ve certainly witnessed varying levels of enthusiasm from the attorneys whose cases I’ve mediated over the years. All of which has made me think about how I approach my job today — and yes, it’s led me to conclude that, no matter who you hire as a mediator, Just OK is not OK.

Your clients don’t settle for just OK. Neither should you.

When you think about it, are you in something of a rut with the mediator you use? If so, you should discuss it with him or her. Especially if that mediator is me!

I recognize that conducting a mediation is as much of an art as it is a science — maybe more so — which means there’s no one Right way to do it. A lot of what mediators do comes from gut instinct: Knowing when to push, when to back off, when to challenge positions and when to remain silent. Sometimes, as a mediator, that means knowing when to take risks; sometimes it works, sometimes it doesn’t.

Confession: I don’t always get it right.

I’ve conducted a lot of mediations in which, at one point or another, it’s up to me to make something happen. I’m the one who has to move things along. In other meditations, my role is better-defined as an Offer Toter. Regardless of the circumstances, it’s always my responsibility to keep my finger on the pulse of the parties. A big part of my job is intuiting what actions I could take will be productive — or counterproductive. More than once over the years, I’ve found myself apologizing for things I did that weren’t productive, or helpful.

A mediator will never make everyone happy. I’ve come to accept that, but not without difficulty.

How should you evaluate your mediator?

First, remember that Just OK is not OK. You should expect your mediator be prepared, and work hard in helping you achieve your goals. You should insist on effective follow-up when your cases don’t settle on the day of the mediation: Persistence, persistence, persistence is key. Demand nothing less.

Hold us to a standard of excellence. When we get it right, let us know. When we don’t measure up, we need to know that as well. You have the right to expect excellence from your mediator. Most of the mediators I know seek to provide excellent service. Positive and negative feedback will help ensure that you get it.

You aren’t just the attorney. You’re the client!

No one in the process should ever forget that — most of all, your mediator. I would like to thank all of the “clients” I’ve served over the last 10 years. I would also like to say to any of you whom I haven’t already been lucky to serve: I hope we can make that happen in 2019!