I recently read an article in the Wall Street Journal that reminded me of the effect that emotions and moods can play in mediation. The title alone says a lot: “Good Moods Often Lead to Bad Judgments.”

Written by three thought leaders on the topic (including a Princeton professor of psychology who’s also a Nobel Prize winner in Economics), the article states, “Mood has a measurable influence on what you think: what you notice in your environment, what you retrieve from your memory, how you make sense of the signals.”

The article goes on to say that mood changes how you think. In a negotiation setting, a good mood can be helpful in making everyone at the table more cooperative, and it typically elicits reciprocation from opposing counsel and clients.

So what can we, as attorneys or mediators, do with this scientific information? A couple of thoughts:

Consider the other side’s mood in timing a mediation.
In cases I’ve mediated where the injured plaintiff is still in significant pain from an accident, that pain is the greatest obstacle to resolving the case.

People in pain have a hard time focusing on anything else besides their pain — which tends to negatively impact their thinking, and causes them to overvalue their case. In death cases, where the loss is still way too fresh, the pain of that loss makes it difficult for family members to objectively process information about the value of their case.

Mediations have a much better chance of succeeding if an injured plaintiff has reached Maximum Medical Improvement, or — in a death case — a year or two has passed since the death. Parties are better able to process information relating to compromise settlements.

If you’re thinking that’s pretty obvious advice, you’re right. But again, I’m speaking from personal experience — and the attorneys involved in those cases were good lawyers.

Preparing clients if you’re the plaintiff’s attorney.
If you’re representing someone struggling with pain or loss, spend some time preparing your client for the emotional difficulty that comes with a mediation — particularly the negotiation process. Acknowledge your client’s pain (physical and/or emotional). Remind them of your desire, and your commitment, to walk alongside them through their struggle. Remind them that the mediator can’t take sides, but serves as a neutral party who’s there to help both sides reach an agreement they can accept.

What about lawyers’ emotions during mediation?
In my experience, the most effective lawyers are the ones who keep their emotions in check during the negotiation process — particularly frustration, disappointment and impatience. I also know, from experience, that some lawyers believe the biggest A-Hole in the process gets the best results. I doubt I can convince you otherwise, but I strongly disagree.

Adjusters, corporate representatives and other lawyers are human. Nobody likes being bullied. Nobody likes disrespectful treatment. And nobody likes an A-Hole.

That said, I’m not suggesting there isn’t a place in the process for attorneys to express their anger or frustration. I still remember, during Oliver North’s congressional hearing, his attorney being questioned about his display of emotions, and responding, “I am not a potted plant”.

As the Wall Street Journal article points out, “negotiators who shift from a good mood to an angry one during negotiations often achieve good results — something to remember when facing a stubborn counterpart.”

Consider this analogy:
As a landowner, that thought reminds me of the difference between a controlled burn and a raging, out-of-control wildfire. They’re both fires. But one is an important tool for maintaining the health and safety of a forest, while the other destroys everything. Use your burn wisely!

In short, don’t let your emotions or moods hijack the process. Also, anticipate that emotions, good and bad, are involved in the process, and try to control them. Use them to your advantage.

Enjoy the journey!

BY THE WAY: If you’d like a PDF copy of that Wall Street Journal article, feel free to send me an email. I’d love to hear from you!

Why I’m optimistic. Particularly for the future of mediation.

By any standard, 2020 was a challenging year. It’s a year nearly all of us are glad to see in the proverbial rear-view mirror. At the same time, it could be argued that there is a positive aspect to the legacy of 2020 — because, on one level or another, we all love challenges. Challenges “show us what we are made of.” They test us. And on one level or another, we all rose to the challenge in 2020.

In my own practice, after two months of shutdown / lockdown, we changed and adapted. Virtual mediations became the norm. In August, I conducted a two-week arbitration in Chicago. We took everyone’s temperature daily. We wore masks. We had the room cleaned each evening. We made it work. Life went on.

By the end of 2020, we were conducting in-person, Zoom, and combination in-person / virtual mediations as if we’d been doing it that way forever. Again, we made it work.

In my personal experience, mediation outcomes were as consistently successful in 2020 as they’d been in prior years — and for that, I have a lot of excellent lawyers, support staffers and clients to thank. You all figured out how to meet the challenge. It may have looked different from “traditional” mediations, but it still worked.

All of which is why, as we move into 2021, I’m feeling genuinely encouraged. I think 2021 will be a good year. At the very least, it has to be a better year than 2020, right? Sure, there will be more challenges and more unpredictability. But we’ll figure it out.

Think of all the things we figured-out, in very short order, last year: Working remotely, wearing masks in public, social distancing, using hand sanitizer and brown-bagging instead of eating out — to name just a few.

Yes, the challenges will continue. And for those of us who lost friends and loved ones, 2020 will be a hard year to put behind us.

This early in 2021, it may still feel to you as if nothing has changed; in which case, I’d challenge you to ask yourself: “What have I learned?” For me, the answer is: “We can do this. We will do this” — whatever “this” is.

I want to wish you, your family, and your firm a healthy, prosperous and safe new year. I hope to work with you on your mediations and arbitrations this year. And yes, I’m confident that, together, we’ll face the challenges of 2021 and make it work!

Enjoy the journey.

A few months ago I wrote a post entitled Mediating Cases Under The New (Ab)Normal. When I wrote it, I really had no idea what the New Normal would be. I’m not sure that I do, even now.

What I can say with confidence, several months later, is that mediation can be effective no matter how it’s conducted. Since the lockdown, I’ve conducted mediations in person and by telephone, Zoom and WebEx. I’ve also led “hybrid” mediations — where one party was in my office, and one or more parties participated by phone, video, or both. The good news, for any of you who haven’t participated in a mediation recently, is they all work.

I currently have several in-person mediations scheduled. Whether they go off as planned or someone chooses to participate through some other means, I’m confident the process can be effective.

I recently read a post on the Mediate.com blog about telephone mediations, which reported three key conclusions from the available research on the topic — namely: 1) Telephone mediation often results in settlement. 2) Motivational interviewing techniques appear to increase the likelihood of agreement. 3) High levels of acrimony between the parties reduce the level of engagement in mediation.

Those conclusions accurately reflect my own experience. Below are a few of my own observations regarding the mediations I’ve conducted recently:

• Since most of the mediations I led before the pandemic had little interaction between opposing parties and attorneys, the percentage of in-person mediations I conduct has not been significantly impacted.
• By allowing attorneys to be present with their clients at more-or-less private locations, mediation by Zoom & telephone has helped keep client/attorney contact where it should.
• Remote-connection technology has enabled attorneys and parties to focus on the issues, rather than on safety concerns.
• During remotely-conducted mediations, attorneys can more easily conduct private conversations with mediators — outside the presence of their clients. This is often more difficult, or awkward, during “in person” mediations.
• Scheduling is much less complicated when mediation dates aren’t dependent on everyone being in Birmingham at the same time.

The good news for mediators, attorneys and clients
As we continue trying to figure-out how to safely return to normal, we’re lucky to be in a profession that enables us to continue conducting business. Maybe not entirely As Usual, but almost.

How about you?
I would love to hear your perspective on conducting mediations during this time, and I encourage you to share any experiences, frustrations or suggestions I can use to improve the service I deliver in helping you with your mediations.

In the meantime, stay safe — and enjoy the journey.

Hello and sincere best wishes, from my home and family to yours.

I doubt any of us could have imagined, even two months ago, that our lives could be so radically affected by something as common to our experience as a flu virus. We are told that its effects will be long lasting, and I for one believe it.

As lawyers, we deal with problems every day. We’re trained to analyze situations and provide solutions. Together, I believe we’ll eventually solve this problem as well.

While we all practice social distancing, our new normal for mediations and arbitrations will be abnormal. I’ve conducted my share of telephone and online mediations in the past — and while it is definitely a different experience, it can work. My law school class at The University of Alabama is using the Zoom App to conduct virtual mediations, and it seems to work pretty well.

Need tips on hosting a videoconference?

The Wall Street Journal just published a very good article offering Best Practices advice for a number of videoconferencing apps — from Zoom and Google Hangouts to Skype. If you don’t subscribe to the Journal, but would like to see the article, email me — and I’ll send you a PDF.

That said, I’m still serving clients in mediation as we move forward in these challenging times, and I have some practical, preparatory suggestions for anyone planning a remote mediation.

1. Exchange initial offers and demands ahead of time.
   

   This will allow both parties to do some preparatory spadework before any mediation sessions begin, and it will help ensure that both parties are serious before entering into the process.

2. Prepare mediation statements to educate the mediator.
   

   Consider sharing a version of your statement with opposing counsel. This gives both sides documents they work off of, and refer to, during the mediation session.

3. Consider using half-day mediations.
   

   Using half-days instead of entire days means everyone still makes a significant time commitment. At the same time, the reduced time frame should force the parties to get to “brass tacks” sooner.  If a half-day proves insufficient, it’s easy to schedule another half-day; moreover, the break between half-day sessions may provide the time needed to process information, reconsider positions and allow the mediator to work with the parties.

4. Trust the mediator.
   

   Share your goals with the mediator. Enlist the mediator’s help in meeting those goals.

I’m confident we’ll figure out how to make this work for all of us. We will adapt. We always have.

ON A PERSONAL NOTE —

I have always prayed that the Lord would not “waste” a trial for my children or family. My prayer has been that God would teach me and my family about ourselves, and Him, through every difficult life situation. This trial is no different.

I believe humans are wired to search for God. Some conclude there is no God. Others conclude there is a God, but that He’s not for them.

Many of us have been led to faith in God through trials. Tim Keller, one of our time’s great Christian thinkers, put it as eloquently as I’ve ever heard: “Suffering, if faced rightly, can drive us like a nail deep into the love of God.”

I watched a recent livestream talk by Keller — Peace in Times of Suffering and Uncertainty — in which he explores what Christianity, and the other “major” faiths (including atheism), have to offer us in times such as this. Whether you’re comfortable in your own faith, or still questioning what you believe, I highly recommend it.

I also recommend a recently-published book by my friend Richard Simmons (author, speaker and founder of Birmingham’s Center For Executive Leadership), Reflections On The Existence of God, which I enjoyed very much.

It’s a well-researched, thought-provoking collection of short essays (short is better for me) examining evidence and arguments for the existence of God and Jesus. If you’d like to read it, send me your address and I’ll mail you a copy — free of charge — as long as my supply lasts!

That said, if I can offer you any assistance with mediations or arbitrations, please let me know. In the meantime, stay safe.

Continue on the journey!

Have you ever been involved in a mediation that ended before it started? I have. I don’t mean literally, but I do mean one that never gets past the first round of demand and offer.

In one sense, conducting a mediation is like flying a plane: It’s not going anywhere if you can’t get it off the ground; and that means getting the case into the rhythm of exchanging offers.

As simple as that may sound, lawyers often make it difficult — and never find the rhythm.

I routinely conduct mediations in which the initial offer or demand is made is at the mediation. This is not uncommon in straightforward (IE: car accident) cases, and it rarely presents a problem. However, in larger and more serious cases, I’ve seen competing attorneys expend a lot time, energy and negative emotion trying to get into a rhythm where the parties can have a meaningful negotiation session.

I’ve found this kind of negativity often occurs when the defendant or plaintiff only hears a demand, or offer, for the first time, at the mediation. When that happens, a mediation may never get off the ground.

A well-respected lawyer once told me that his office will not agree to mediate a case without first making a demand and receiving an offer — which, in his experience, typically sets the stage for a productive session. Though this doesn’t ensure success, it does ensure awareness going into the process.

I’m guessing every experienced litigator has participated in one or more mediations that failed because of high demands (or low offers) being withheld until the first day of mediation.

I will concede that, by making an advance demand or offer, you run a risk of discouraging the other party from participating in mediation. At the same time, I would contend that, if this occurs, maybe your case isn’t ready for mediation in the first place. And wouldn’t you rather know that before you waste a day finding out?

Another decision that often impacts a negotiation process finding its rhythm is when lawyers back up from, or renege on, offers or demands made prior to mediation. I’m not necessarily suggesting that this tactic is improper, but I will say it’s one that never sits well with the opposition.

And yes, I understand that offers and demands change based on the posture of a case, and that no one has a right to assume an offer or demand will remain open indefinitely. However, I have found that, when one intends to withdraw a prior offer or demand, an explanation ahead of time is helpful — and often necessary. Otherwise, it will not be received well.

Before your next mediation, ask yourself “Is this case ready to mediate? Have I done everything needed to give the other side an opportunity to adequately assess the risk?” If the answer is no, you may want to save yourself (and your client) the money, time and energy — and explore the option of mediation at a later date.

Enjoy the journey.