(Sounds like the job description of a mediator)

We would probably all agree that, in our country today, people’s viewpoints seem to be more polarized, on more issues, than they ever have been. In the political arena alone, you’re practically asking for a fight with somebody somewhere if you strongly support or oppose vaccines, masks, the border wall or the police — to name just a few.

Democrats cannot tolerate the views of Republicans, and Republicans dismiss the views of Democrats outright as irresponsible.

The resulting intolerance of differing viewpoints does not help determine who is right or more right. It just leads to arguments that nobody wins. Both sides close their ears and resort to name calling and insults. Dialogue becomes vitriolic, and the decision-making process is undermined.

Fortunately, I don’t see a lot of this in mediations.

Sure, lawyers often disagree strongly in evaluating cases and the law — but that’s always been the case. For the most part, lawyers are great at agreeing to disagree — at least that’s been my experience as a mediator. Usually as the dialogue continues and information is exchanged, the process works.

I have yet to see a case where one side held all the cards. Even in terrible, clear-cut liability cases, there is the key unknown: Namely, what’s it worth in a court of law? Put another way, what would a jury of complete strangers award, if anything, in damages?

Mediation provides a safe setting to explore issues of liability and damages, and discuss them openly. It also affords both sides a third-party opinion from a professional peer with no proverbial dog in the fight.

But what about the client who refuses to listen or budge? Often, our greatest challenge isn’t the experienced attorney(s) on the other side of the aisle. It’s taking the client with polarized, and polarizing, viewpoints — and convincing them that the value determined by the mediation process is fair.

With the right mediator, the process can open your client’s ears and eyes to reason — and help him or her make the best decision. Occasionally, the best decision may be to reject a settlement offer and try the case. But in the vast majority of cases I’ve mediated, the parties determine otherwise.

Thank you for taking the time to read my column, I genuinely appreciate it. Please let me know if you have suggestions for future columns, and don’t hesitate to reach-out if I can ever help you with a mediation.

In the meantime, 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!