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!

(Thinking outside the litigation box)

I recently read a Mediate.com post which explored creative uses for mediation. It’s a great reminder for business people and attorneys alike of the many and varied potential uses for mediation.

In one of my earlier blog posts, I mentioned that I was once hired by a Fortune 500 company to mediate a dispute between two department heads who were constantly at odds with one another. The conflict was so bad that it was negatively impacting not only the company’s culture, but its ability to deliver product to its customers.

We started with a one-day mediation where the department heads flew into Birmingham. We identified the business areas of conflict, the personality issues and other sources of conflict, then worked together to find solutions. We also involved the services of an industrial psychologist.

As the mediator, the mediation process allowed me to say things that would have been difficult for a superior to say and still maintain a healthy relationship with the employees. We conducted much of the process in a joint session, and used caucuses to discuss specifics with each party. The rules of confidentiality protected the privacy of the process.

The process took a number of meetings and several weeks, but ultimately we formulated a remedy — and created a framework for the two executives to work together harmoniously on future projects.

This past week, I mediated a dispute for a construction client in which a job site foreman was alleged to have made sexually harassing comments to another contractor’s female employee. I conducted an investigation prior to the mediation, then scheduled a meeting between the employer’s representative and the employee.

Our session was a great training/teaching opportunity for both the employee and the company representative. We were able to salvage the foreman’s employment and create a framework to ensure that it never happened again.

As an attorney and mediator, I was again able to say things that needed to be said without impairing the relationship between the employer and employee. And again, all discussions were confidential and protected under the mediation and attorney-client privilege.

These are just two examples of using mediation to “think outside the litigation box.” Properly conducted, mediation can be an excellent tool for attorneys and businesses to facilitate difficult but necessary conversations. Keep this option in mind as you seek to serve your clients and businesses.

Enjoy the journey.

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.

The title to this post was actually inspired not by the song, but by a post recently published by my friend Richard Simmons (and no, if you don’t know him by name, not that one). Richard is a genuinely gifted teacher and writer, and I highly recommend his blog.

That said, the title is perfectly suited to mediation — where competing sides generally fight for pieces of the same pie with the attitude that “More for you means less for me.” That may be true, but the bigger truth is, if we can expand the pie, we both win.

Unfortunately, this is rarely an option — and the more time and money our clients spend fighting over the pie, the more it’s shrinking.

I recently conducted a mediation involving four siblings arguing over their father’s estate. One of the siblings was alleged to have exerted undue influence over the division of Daddy’s estate, and received $500,000 of assets — while the others got nothing.

After negotiations for an equitable distribution of assets slogged along for nearly a full day, I told the lawyers, “You’re the only ones who stand to benefit from this fight continuing.”

The more their fees increased, the more their client’s pie decreased. Being good and honorable professionals, the lawyers agreed. They recognized that their clients would benefit most from a prompt resolution, even if nobody got everything he or she wanted.

Too often, lawyers get a bad rap for doing their job.

In fixed pie cases, the reality is often that lawyers’ fees result in pie shrinkage.  At the same time, without lawyers, disputed pies rarely get divided fairly.

An important part of our responsibility as lawyers is a willingness to tell our clients that they can’t always get what they want. There’s a lot of truth in the old saying that a good settlement is one in which both sides are unhappy. I’d like to think a good settlement happens when both sides give, in ways that makes settlement sensible.

As a mediator, I often get to see lawyers at their best — subordinating their own interests to their clients’ best interests. While prolonging disputes often serves them and their firms’ bottom lines, they recognize when their clients’ best interest lies in prompt resolution.

This is one of the real benefits of mediation. The mediator, who “doesn’t have a dog in the fight,” can point this out to clients without their lawyer appearing to be less of an advocate for his/her clients’ position.

Clients often get so consumed with the correctness of their position, and the desire to get everything they want, that they end up making bad decisions. This is where our job, as attorneys and counselors, is so important.

Sometimes our clients need to see that getting most, or even some of what they want, is better than continuing the fight in hopes of getting what they think they should get.

I commend all of my fellow lawyers who, time and time again, put their clients’ lives and interests ahead of their own. It truly is a beautiful thing.

In the right hands, mediation is a great tool to help clients make good decisions about their “wants.”

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.

Growing up in the South, many of us have heard lots of “country sayings,” such as this one attributed to Mark Twain: “There is nothing to be learned from the second kick of a mule.”

Nearly everyone who grew-up around horses and mules had to learn the hard way — despite all warnings — what can happen when you stand directly behind one. If you’ve ever been kicked by either, I doubt you’ve forgotten it. I know I haven’t.

In the same way, most of the valuable lessons I’ve learned in life came from making mistakes — and many of those lessons were painful. Being human, I’ve been known to repeat some of my dumber mistakes — leading me to receive the proverbial “second kick of the mule.”

Fast learners in my profession will accept a difficult litigation experience as an instructive mule’s first kick. They learn from their mistakes, take corrective action, and avoid the mule’s second kick.

There are those who learn quickly – – –

I recently mediated a medical malpractice case where a patient was strapped to the operating table during surgery so that the table could be tilted to give the surgeon the best angle for the surgery. The surgery was completed without incident. But during the cleanup, the unconscious patient slid off the table and struck her head, causing injury.

I was impressed during the mediation to learn that this incident led the hospital to completely rethink its protocol for ensuring that it never happened again. Though the procedure for the surgery had complied with the standard of care, the hospital recognized that its procedure could be improved, and they made the necessary changes.

– – – and those who don’t

On the other hand, I get cases involving companies accused of repeating safety and compliance violations, over and over. Using the metaphor above, these are organizations getting kicked by avoidable problems — then standing-up, brushing-off, walking behind the same mule, and (presumably) expecting a different result.

What’s the takeaway?

For me, it’s this: First lessons, which are often expensive, can — and should — be valuable learning experiences. They’re opportunities to avoid costly repeats of the same problem. But in order to enjoy their value, you have to see that the benefit comes from learning not what hurt, but rather what caused the pain. Namely, the mistake(s) that led to the pain.

Mediation provides a great tool for correcting mistakes made in business and in life. Hopefully, you can help your clients learn from their mistakes and avoid the second kick of the mule.

PS: The Twain quote above reminds me of how characters on “Green Acres” (now streaming on Amazon Video, BTW) periodically cite countrified aphorisms with the show’s characteristic absurdist slant. Two examples, for your entertainment: “You can lead a horse to water, but you can’t make him think.” “She’s prettier than a little red wagon going up a steep hill.”

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.


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!

For starters, consider mediation.

I remember as a young litigator at Cabaniss Johnston, partner Bill Robinson introduced me to the First Rule of Holes — which is, “When you’re in a hole, quit digging.” He was teaching me that when you have a losing position or case, you shouldn’t make it worse by doubling down. Sometimes, you need to change what you’re doing and cut your losses.

Experience has since taught me that there is a second Rule of Holes. Namely, “When you stop digging, you’re still in a hole.”

Years ago, I mediated an airplane renovation case. The parties were disputing the quality and timeliness of the work performed. At issue was the contracted renovation budge of $800,000. That’s a lot of money by most standards. But by the time the dispute reached mediation, each side had accumulated more than a million dollars in attorneys’ fees. Each side’s in-house counsel had gone “all in” to win the case — which meant that both sides had violated the First Rule of Holes. The mediation was unsuccessful. Neither was willing to compromise, and both were left in holes of their own making.

Ever find yourself in a hole?

Mediation is a great solution when we find ourselves violating the Rule of Holes. As lawyers, we don’t always get to pick our clients, cases or arguments. In other words, we don’t always get winners.

A lot of my readers, and friends, make a living defending “bad” cases — with tough facts, bad conduct and high liability exposure. When you’re a great defense litigator, it practically comes with the territory. After all, the worse a client’s case is, the more they need the best possible lawyer defending them. And unlike plaintiff’s lawyers, firms serving corporate clients don’t have the luxury of regularly turning-down bad cases.

That said, it’s not unheard-of for even the most successful plaintiff’s attorneys to file “bad” cases — with tough facts, limited liability or low chances of recovery.

The worst part about “bad” cases is, you often don’t know how bad they are until you’re deep into discovery. For those cases, where you really don’t want juries deciding just how bad they are, mediation is a great solution.

As we all know, risk is what makes mediation succeed. Risk of a bad result is what all litigators and clients seek to avoid, and mediation is an excellent tool to help value and resolve bad cases — whether you represent the plaintiff or the defendant.

So, the next time you find yourself in a hole, don’t keep digging. And don’t lose heart. Get realistic, cut your losses, and find a way out of the hole through mediation.

And even then, try to remember: Ours is a noble profession. So enjoy 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.

The title of this post, of course, is from the Alexander Pope quote, “To err is human. To forgive divine.”

This post isn’t about forgiveness. However, lest we forget, we are all human! So what does that mean? For one, it means we aren’t machines programmed to automatically produce correct responses in all situations. We all make mistakes. Most of the important lessons I’ve learned in life are the result of mistakes I’ve made. To paraphrase Will Rogers, Good judgment is the result of wisdom. Wisdom is the result of bad judgment.

Consider instant replay.

It’s been a great addition to sports officiating. Questionable calls are immediately scrutinized to ensure they are correct. As much as we like to complain about the refs, it’s still amazing to me how often officials make the right calls — particularly given the speed of most games, and the need to make snap decisions, play after play. As viewers, we get the luxury of scrutinizing the refs’ calls in slow motion — and from multiple angles.

In some ways, that’s exactly what we do in mediation. We have the benefit of hindsight, and the luxury of scrutinizing decisions others had to make in real time.

I recently mediated a legal malpractice case.

It seemed clear to all involved that the lawyer made a mistake — one which led to severe consequences for his client. It was easy for me to see the mistake. In a manner of speaking, I had the benefit of instant replay to assess the decision and render judgment.

I regularly mediate medical malpractice cases.

It’s amazing to me, when I think about how often doctors have to make life and death decisions in real time. Sometimes they make the wrong decisions. That doesn’t necessarily make them bad people, or incompetent doctors. In many instances, it just means they made mistakes.

Mediation provides an excellent vehicle to assess fault and culpability for mistakes that have been made. It also provides an opportunity to remedy, or compensate for, the resulting damage.

As a mediator, it’s important for me to be empathetic with attorneys, doctors, business owners and individuals — rather than being judgmental.

Someone made a mistake.

In most of the cases I’ve mediated, the defendant didn’t intentionally harm his client, patient or other party.

When mistakes are made, it’s human nature to find it easier to empathize with the one who’s been injured as a result. However, to do my job well, I need to empathize with all parties. I employ the term “tactical empathy” — which is a technique I wrote about in a previous post, inspired by a blog I read often by The Black Swan Group.

This post reminds me that whether we serve as attorneys or mediators — or in some other role — we should first apply the golden rule in treating others the way that we’d want to be treated. For me serving in a mediation, that rule would be, “empathize before I judge.”

Enjoy the journey.