Once a month I take time to reflect on and write about mediation as a practice. What are the skills that help resolve cases? How can I as a mediator help people resolve a dispute which probably involves strong feelings, negative feelings, physical pain, and/or large sums of money? For most of the past year, I’ve put those reflections on paper and published a monthly article in the Bar Bulletin. I appreciate the great feedback I’ve received from the readership, my colleagues, and the general public. There are, in fact, readers who are not lawyers I was pleased to discover. And this month, unlike most months, I was inspired to write from a slightly different perspective. This month I was inspired by the thought of giving back.
I am sure this month’s Bar Bulletin contains one or more articles about the annual KCBA Breakfast with Champions, which was held this year on May 9, 2023, and is in fact the day I am penning this article, while the feelings are still fresh, and therefore, the opportunity to be honest is strongest. I was inspired by all three speakers, including a young man of color, Dontay Proctor-Mills, who is about to graduate from law school and begin his career in public service. I was also inspired by a colleague, David Zapolsky, General Counsel for Amazon, whom I have had the honor to work with over the years, as he described a wonderful pro bono program, aptly named the Records Project, designed to assist deserving people to have their criminal records expunged, thereby allowing them to apply for housing and employment without the need to disclose a criminal past. Finally, I was inspired by the keynote speaker, Mr. Doug Baldwin, who has turned his star power as an elite athlete into activist power for those who might otherwise never have a voice. And it is from these three gracious and humble humans that I draw my topic this month.
Doug Baldwin is passionate about creating empathic solutions to complex problems. During our breakfast, he talked about three pillars by which he lives his life. I absolutely believe these pillars have a place in mediation as well as in our lives generally. As Mr. Baldwin said at the breakfast, if we would all live by these three pillars, we would not have problems with our fellow human beings. I set out to test this against the backdrop of mediation.
Pillar Number One:
Be Honest
Honesty seems obvious. But like so many things in life, there are nuances. First, there is honesty with others. As lawyers we can easily appreciate our obligation to be honest with the court and opposing counsel. It’s written into our RPCs. This is sometimes referred to as “cash register honesty.” That’s really the easy part.
But we are also called on to be honest with ourselves. When we look in the mirror, can we honestly say our outsides match our insides? Are we walking our talk? In mediation, are we being honest with our own evaluation, our presentation to others regarding the value of a case, the risks involved? Or are we stretching facts, being lazy with our interpretation of the law and advocating a position that is riskier than we are willing to admit?
I was mediating a case where one attorney was having a difficult time communicating with his client. The client was angry because his life had been turned upside down by events that were not of his making and, as we say, not his fault. In his mind, the person at fault was sitting comfortably in the other room. This lawyer was running into emotional barriers when he tried to talk to his client about risk, about expenses, about that vague concept we call “settlement value.”
There is risk with honesty. There is fear with honesty. When we are honest, others may not like what we say. When we are honest, we may fear the response. In this case, the client might respond with more anger and direct it toward his own attorney. The client may lose faith not only in his attorney but also in the process. This is where you should lean on your mediator.
As a mediator, one of my jobs is to gain the trust and confidence of your client. This job is helped of course by your preparing the client for mediation and explaining who I am, a little about my background, that I write articles on mediation and maybe even provide them access to those articles. All of that is to say if you help your client understand that I bring value through my experience, then when I speak honestly with your client, there is a better chance they will hear me. And if I can absorb their anger and show compassion for their situation, they may also act on what they hear from me in a way that is best for them. In short, there is little risk if I talk honestly with them and as a mediator, and I am not afraid for them to hear it. If you find it difficult to convey the honest message to your client, your mediator can be your greatest ally.
Pillar Number Two:
Be Curious
Doug Baldwin has a second pillar, curiosity. Always be curious about your life so you don’t miss an opportunity. The same is true in mediation. Well before mediation, many opportunities to improve your case will be presented. Curiosity will open your eyes to these opportunities. I remember as a young attorney learning the lesson that I should never pass on an opportunity to speak with a witness. Curiosity about what that person knows unveils surprising facts often enough that I never want to miss the opportunity. Curiosity about those facts may change your case for the better.
And even at mediation, be curious about how the other side is thinking about their case. You have enough information and experience to deduce where the other side is coming from. You may see patterns in their behavior, and certainly in their offers. Are they avoiding sticky evidence? Are they chasing the same “middle” after each offer or are they moving the middle in a way that predicts their next move. I recently handled a mediation where the claims professional made offers by cutting in half each previous offer. It was not hard to see if you were curious. Be curious.
Pillar Number Three:
Be Forgiving
Doug Baldwin is admittedly a man of faith. Faith guides his life and as part of his faith this pillar stands prominent. We are all humans, we all have flaws, we all look at life from the perspective of our own experience. And we disagree. Nowhere do we disagree more, perhaps, than in litigation. Sometimes we disagree with another’s interpretation of a fact. Sometimes we disagree with another’s interpretation of the law. Sometimes we disagree on principle. Sometimes we disagree because we can’t bring ourselves to agree on anything which supports our opponent’s position. This conflict can make mediated solutions difficult if not impossible to find.
But it is through forgiveness of others that we create the space to find agreement. The angry client in the room is made less angry and finds space to resolve his case by forgiveness. Fault is a legal concept that gets mixed in with a philosophical concept and creates a barrier against forgiveness. Your clients are helped by understanding that who was at fault legally is unimportant. It is like truth. In a courtroom, truth is what twelve disinterested people, who may or may not be your peers, decide the “truth” is with an imperfect amount of information, an imperfect amount of intelligence, and imperfect amount of interest.
Trials are imperfect. Allowing a jury to decide who is telling the truth, who is at fault, and what is the value of the claim is an imperfect solution. A better solution, a good solution, is a mediated solution. A mediated solution is within your control. I appreciate the saying that “perfection is the enemy of the good.” No one should expect a perfect result. But a good result is well within our reach. And if you employ these three pillars in mediation, then your opportunity to achieve a good result is greatly increased.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at eric@gillettmediation.com While in person mediations can be arranged with all participants fully vaccinated, Zoom mediations are also available and encouraged.
