Realistic Deals and Creative Solutions: Mediation Secrets with Jean M. Lawler, CIPP/US

Hello, my friends, and welcome to another exciting episode of Negotiate Anything. This show is produced by the American Negotiation Institute and with over 5 million downloads and listeners in over 180 countries, listeners just like you have made this the number one negotiation podcast in the world. Hi, my name is Kwame Christian and I am the founder and CEO of the American Negotiation Institute here at A&I we believe that the best things in life are on the other side of difficult conversations, and we are passionate about providing you with the best content that will help you to make your difficult conversations easier, both at work and at home. Lastly, I want to remind you that we offer consulting and conduct trainings both virtually and in person all around the world. Our focus is in three main areas. First, negotiation and conflict resolution. Second, leadership. And lastly, diversity, equity, and inclusion. Check the link in the description below to learn more about how we could work with you and your team. And now, without further ado, let's jump into the interview. Gene, thanks for joining us today.

Oh, thank you so much for having me. It's a pleasure to be here.

Yeah, it is a pleasure to have you and you come highly recommended from our mutual friend Veronica Cravener. For the listeners who don't know you yet, how would you get us started? By telling us a little bit about yourself and what you do.

Well, I'm a commercial and insurance mediator and arbitrator. I am based out of Los Angeles, but especially thanks to Zoom, you can mediate anywhere in the world. I am a lawyer in Southern California and obviously Los Angeles, but I've practiced for, I think, 37 years before I decided to go from being an advocate to a neutral full time. And so I've been mediating on a full time basis since 2017 and I love it. It's great. I should have done it earlier maybe, but whatever. Life is great. So it's wonderful to help people settle their disp.

No, this is great. And I realized as I was going through some of the episodes that I didn't have enough of my fellow mediators on the podcast. We had a lot of lawyers, a lot of people in sales and contract negotiation, but it's really great for me as a fellow mediator to have more folks who are experts in the conflict resolution arts coming on the podcast and talking about that. And can you set the stage for the listeners and kind of tell them what your typical day would look like in terms of the cases that you handle?

Well, sure. Most cases I handle are in litigation already. Some are pre suit, which is great. Get in there early and try and resolve the dispute before you have to resort to the court. But most of my mediations are on Zoom. Actually, I have an in person one tomorrow, but that's only the second since March of 2020. So I've had over, I don't know, over 300, 350 maybe, that have been on Zoom since March of 2020. And just like this, I have the people come in at whatever the time is, the council and their parties. We do some nice introductions, make sure that there is a live person that they're negotiating with, especially when companies are involved. And then at least out of California, we tend to not do joint sessions where the parties, the lawyer might say what their case is and the other lawyer says it, and that's gone by the wayside. I would say for many years here in California, we just maybe do separate breakout rooms or if it's in person, do different rooms and then go back and forth in the negotiations, bring the parties together, you know, that kind of thing. But ultimately try and figure out what each party's really, what their needs are and what their wants are, and then work on something that at the end of the day they can leave, ideally with a settlement or at least being closer to a settlement, if not that day that it's the stage is set for them to ultimately be in settlement or know that they can't settle and they, they need right now to do a summary judgment, motion or fine. That's what courthouses are for. Take it to trial or on appeal, maybe, you know, and see what happens.

This is great. And a couple of things I want to focus on the last couple of things you just said, where you said, okay, as a mediator, you're trying to find out what their needs are and what their wants are. Really want to hammer home to the listeners that those two things are not the same thing. They're very different. They're very different. Even though they will be proposed to you as though everything is a need, an expert mediator has to be able to distinguish between a want and a need. And then going further, just, I love the more realistic perspective on what's possible because you're setting those expectations going in. Because a lot of times people say, all right, if I get a deal, that's a success. If I don't, that's a failure. If I resolve the conflict, that's a success. If I don't, that's a failure. If that's the case, then there will be very few successful people in the mediation world. We're focusing on Progress. So, yes, it'd be great if we can get a settlement, but as long as we're moving closer to a potential agreement or clarity and understanding, that's still a win. And even if we end the mediation saying, all right, now I know for sure this is not going to settle, let's go. That is better than before too.

Absolutely. And clarifying facts, especially when you're in the mediation context where you have confidentiality. And again, every state has its own confidentiality rules and laws, so that can. That's another whole topic for discussion at some point. But presumably you have confidentiality on what's being said. And so you can have that kind of discussion to clarify facts that what may come out if you ended up in trial or not, or that can lead to a settlement where you never really thought about something the way the other side does, or vice versa.

Oh, Gene, now I have to ask this question and I want you to answer it from the professional side as you as a professor, mediator, understanding that you're in the judicial process, so there's a court there too. But I also want to approach it from a less structured perspective where we might not have discovery. So what is a fact?

Oh, well, let's see. Get Aristotle in on this. What time a fire started. That could be a fact. You know, how much was paid for this or that? Here's an example. I had a ransomware case that I was mediating. Let's see, that one was. I think that one was already in suit. Some of those come pre suit. So a ransom had been paid because of a data breach and one of the attorney, you know, attorney fees are at issue. Well, it became clear that more information needed to be provided to the other side who was being asked to pay attorney fees, like some bills that were redacted maybe, or things like that that would fact. What was it that the other party paid and what was charged. So you can see what you're dealing with in terms of damages now, liability. You also have factual things too. The name of the corporate entity or not. You know, are they the same person or entity that's the insured?

Yeah. Okay. I wanted to see where you would go with that because it's a strange time in the world where there is so much disagreement on what even is considered to be factual and what a fact is, what's truth, what's real, and those type of things. And I think it seems like it's getting murkier and murkier. At least in the legal world, we have the benefit of discovery or at least the threat of discovery. So even if the person isn't being forthright, we can let they know, hey, the truth is coming one way or another. You could either let us know now, or it could be just a painful process in a little bit. But in the real world, especially when we think about, let's say, interpersonal conflicts or workplace conflicts, we have a lot of differing perspectives. What was said, what wasn't, what was a promise, what was just chatting without commitment, those things.

And one person's truth may not be another person's truth, you know, and of course, perspectives. There's usually more than two sides to every story, you know, multiple sides as to what really happened and the way we perceive things, the way we actually said them, the tone of the voice. There's so many things like that. If it's that kind of a case, and some of the employment cases are a good example, you probably will never get the parties to agree on what really happened, because what they perceived, what they observed, what they experienced is their experience is what they believe to be the truth, so to speak. And the truth might not be the proper words to use there, the phrase, but. And the same with the other side. But then I will use a lot of the types of approaches of, look, you're just going to have to agree to disagree. You're never going to convince them of X and they're never going to convince you of Y. So let's just accept that for what it is. But you're in litigation or you've got this dispute that's going to go to litigation or arbitration if you don't resolve it. And I promise you, if you settle this today, when you wake up in the morning, you will feel a load off your shoulders. You can get on with living your life, get on with your business, you know, whatever it is. Those kinds of things I've even used once in a. I don't. I'm not sure I would do it again. It would depend on the. Probably the ages of the people in fall, because they might not know what I was talking about. But in a sexual harassment case once, and I was talking to the claimant. Wonderful, very nice person. But as an example, to emphasize this, asked if she'd ever seen that movie South Pacific, and that song of I just want to wash that man right out of my hair. You know, if you're not even familiar with it, probably, but that or, you know, just. I use song lyrics a lot. Even the Rolling Stones, you can't always get what you want. So you know, let's see what we can get. Just different things like that. People usually laugh when those kinds of things are said.

No, that's good. And breaking the tension in a mediation can work wonders with humor, and that can really get people to feel a lot more comfortable engaging with you. And I really appreciate the fact that you said, sometimes you just have to agree to disagree, because a lot of times we go into these conversations thinking that we are the sole arbiter of truth in the interaction, and our only goal is to get the other person to see things our way. And that's our only path to victory, which is in many cases, a complete impossibility. But just kind of getting to that point where we say, hey, okay, you see things one way, I see things another way. And based on your perspective and my perspective and our experiences, we're just not going to agree on this. But can we find a way to move forward even though we don't agree on this little part of the overall interaction? And I think coming to terms with that and being transparent with that reality can help people to move forward and still engage in the process, even if the other person isn't seeing exactly eye to eye.

Exactly. And the thing with litigation is, I mean, unless you're in a relationship, you know, whether it's family, friends, business partner, you know, something like that, where it's personal, if it's not, if it's a car crash or, you know, defective product or something like that, you're probably never going to have to see that person again. Even if it's a personal thing. Maybe you're both going to go your own way and just knowing that, get this off your plate, get it out of your head, you know, think of all the stress this is causing you, and you'll never have to see this person again. I mean, that freedom is an amazingly wonderful thing, or can be a wonderful thing.

Yeah, absolutely. And I think we get so caught up in the fog of war sometimes that we lose sight of the. The relief we will feel once we put this behind us. Like you said, it's a weight on our shoulders. It holds us back. And I think we also fail to appreciate the impact it has on the people around us if we are stuck in litigation and this massive conflict. It's not just you. It's your partner at home, it's your family and friends. They're all experiencing it because you're not at your best when you feel like you're just at war all the time and just making sure that you continue to have that perspective of hope and there's something on the other side can help people reorient during the conflict and focus more on what they can do in this moment to move forward rather than vilifying and breaking down the other side in a way that doesn't lead to agreement. Does your company invest in professional development training? If you believe that your team would benefit from a negotiation workshop, all you need to do is go to our website, fill out the workshop request form, and then we'll set up a time to chat. These workshops are completely customizable, and we've done them all around the country. Negotiate. Negotiation and conflict resolution skills are beneficial across all professions, but they're especially useful in procurement, purchasing, sales, sourcing, and contract management. Our calendar is filling up quickly, and we even have some workshops scheduled for next year if you think you might want one. I'd suggest reaching out soon so you don't miss out. Check out the link in the description to learn more. And we will be right back after this.

Right. Whether it's a lawsuit or just a dispute, think of how negative it is to be in litigation because you, if you're the plaintiff, you know, feel that you were wronged in some way and you need, you know, whatever the lawsuit can bring for you for satisfaction. And I'm not saying that that's not appropriate. It can be very appropriate. But most cases settle, most lawsuits do not go to trial. So it's so much better to recognize that earlier than later. Think of that Gwyneth Paltrow case that was just in. Where were they? Utah, I think. And there was an interview of the plaintiff afterwards, and he was quoted on the news. He was asked, was it worth it? And he said, absolutely not. No. I think perhaps because I was a practicing attorney for so many years, and this, you know, the stress of prepping for trial, the invasiveness, if you will, of answering discovery, going to a deposition, you know, all these things, your life is not your own if you're in litigation. And again, courthouses are there for a wonderful purpose, and I'm not demeaning that at all or minimizing that at all. And that's our, you know, hopefully our justice or civil litigation is different obviously, than the criminal. But recognizing that most lawsuits do not go to trial if you can possibly settle it or if you at least explore settlement, I think it's wrong not to explore settlement early and maybe, but at least early and then again on the courthouse steps, if you've gone that far.

Agreed. Agreed. And one of the things that we talked about before is the importance of pre mediation preparation. And I know the basics of pre mediation preparation are going to be similar to what you would need to do to prepare for a negotiation. And I think it would be really helpful to give listeners an idea of what you go through before the mediation to put yourself in a position to be successful in the actual negotiation.

Well, one of the things I think that is so important, and this is only since I became a full time mediator, in fact, on the the United States Federal Court, Central District for California on their ADR panel and they do require that the mediator and the parties, whether jointly or separately, hold pre mediation conference calls. Now, when I was in practice, we never did that. Somewhere along the line that started to become a thing. And now almost every mediator I know does that. But I think that is so important. In fact, I had one call this morning before we started this and I've got another one after we're finished for tomorrow's mediation. And what that does is I talk privately to each side. I, I will be, I'm happy to talk to them jointly, the council jointly, but most of the time they would prefer just to talk with each council separately. But it gives a chance where they've already submitted a mediation brief or a mediation letter to let me know what's happening. I've read it and can kind of drill down, you know, distill what the crux of the issue might be and what documentation do they have, maybe that will help, you know, help convince someone of this or of that or support their position or contradict the other party's position. Again, it comes back to establishing facts, I suppose, you know, as much as possible. And so that's important. The premediation brief of some sort is important, but it's very important that the attorneys talk to their clients in depth and properly prepare their clients for mediation. And I would say even go so far as to say prepare the other side for the mediation. There's one plaintiff lawyer who recently was giving a presentation and he pointed out, and he's a plaintiff personal injury lawyer, that he makes sure to send the share the mediation brief with the other side about a month in advance. Because in his cases they're always. Well, generally there's no absolutes, right? So generally there will be an insurance company on the other side who's provided the defense in these personal injury cases for whoever the defendant might be. And he knows that not just the lawyer, defense lawyer, but the insurance company will need time to review the position. You know, maybe they Roundtable it. But both sides need time to prepare themselves as lawyers reasonably evaluated, find out what judgment potential might be in that area of the country for that type of case, and then come in. So by the time I'm getting it, I'm talking to them in a way that ideally they've done that homework and if not, maybe suggesting some of the homework that they could do based on my fresh eyes, looking at the case, you know, and ask a lot of questions.

Yeah. Oh, this is great. So let me provide a bit of a summary here. So in the premediation process, some of the things we talk about are first reading the pre mediation letter or brief, drilling down to the crux of the matter for both of the parties, getting documents, data, evidence and other supporting information to support or substantiate the points that they're making. Hopefully the lawyer preps their client for the mediation and preferably they also prep the other side as well. And it could all happen a month in advance or more. And I think for a lot of people, when they think about the preparation that would go into it, they would think about you in your office, kind of by yourself reviewing the case files and things like that, more of a solitary approach. But really, it seems like this is almost a more collaborative approach to preparation before the actual mediation.

I haven't thought of it that way, but it probably really is. And when I do say prep the other side, I'm not picturing one lawyer telling the other lawyer what to think or whatever, but just making sure the other side understands your position and the reasons for your position and vice versa. You know, that kind of thing. Communicating, talking as a. When I have these calls with the lawyers, I want to know, have they had any communications with the other lawyer about settlement yet? You know, what's the mood of the case? You know, are the lawyers cooperative with each other? Is it a contentious case? What do they think might settle it? You know, there's all sorts of things, all sorts of questions you can ask.

Yeah. Oh, this is great. This is great. And one of the other things that we mentioned when we were in our pre interview phase, our pre interview prep, we were talking about power of using bracketing or ranges in these types of mediations and negotiation. And so can you paint a picture of what that means, practically speaking, and then talk about how it actually applies to you in your mediations?

Sure. There are probably as many definitions of bracketing in mediation as there are mediators. Okay. But that said, you know, in mediation, you would go back and forth generally and offer or demand. Start with the demand and then an offer and a demand and an offer. And maybe you're making small, you know, smaller progress. And it's like, how long is it going to take to get to what I call the dance floor where you're in the realm of reasonableness, that for the final dance floor? I mean, certainly if someone is way out here in the insult zone and someone is over here in the credible zone, that's great, you know, but you've got to inch them a little, keep inching them closer together. And so bracketing is a way where. And again, there's so many ways of doing it, but in a more traditional way, lots of times it's phrased, look, if they will go to X, you know, we will go to Y. And so you've got X and Y. So maybe it's 50,000 and 100,000 for round numbers for the bracket within which you will then negotiate. And then you could, you know, keep doing that kind of thing. And those are not real offers or demands, so to speak. They're what I call ifs. You know, kind of like if. Look, if they would go to something in this range. I personally don't like the phrase bracketing so much as I like ranges, because as I do say to people, I must say, who in America likes to be told what to do? Nobody, you know, so when the old traditional way of saying, look, if they go to 25,000, then we'll go to a gazillion, you know, or whatever it might be, 100,000, you know, and it's like, no, no, no, I do not encourage people to try and tell the other side where they need to go, but rather, what would be a reasonable range that you think this case should settle in, and then that forms a bracket, so to speak, and maybe then go to the other side, see what theirs is. Maybe they overlap, you know, maybe using this example of 50 to 100, maybe someone's at 75 to 150. So you see, you've got a $25,000 overlap in there. It's a way to have hypotheticals, offers and demands, but narrow it so then someone can actually say, okay, I'll make a concrete demand, or I'll make a concrete offer. You know, look, we'll do whatever, because everybody sees the way it's going, and it does shorten the negotiations. But there are lots of rules for rules, quote, unquote, bracketing. And, you know, like, if you've got a bracket this much, then you should never go down below what you said would be your low end or your high end. Don't go above your high end, depending on which side you're on. And that I personally, like I said, I prefer to deal in the ifs. Look, if they would go here, would you go there? Or can I propose this as a bracket? Because that's a phrase people are familiar with. But explain that. I look at it as a range. You know, things like that.

Yeah, it makes a lot of sense. And essentially what we're doing is we're setting the, like you said, the playing field, the dance floor, what's realistic. Let's only. Let's agree to only play within this range so we don't waste time insulting each other offers that are way outside of the realm of possibility. And as a mediator, you have a great opportunity to get a little bit more candor and vulnerability from the parties when you're using shuttle diplomacy, interacting with each person individually, going back and forth so they're not posturing in front of other people. In a negotiation. When you think about utilizing this type of strategy with ranges, what would that look like in a more traditional negotiation setting?

I think it's probably a matter of knowing where you want to be. And it's true for anything, of course. Where do you want to end up or where will you not go over? Where's your tipping point that you won't exceed? That puts a bracket in your mind already. So if someone had offered a hundred thousand and someone had off, demanded 100 and offered 50, well, that's your bracket.

Yeah. No, that makes sense. And I know there have been times where I've used arrange, kind of like a soft anchor, where I might say, well, depending on the entire package that we're talking about, I could see this falling between this and that in general. And I kind of say it like that. And I think it's more just recognizing that we could use that methodology in a bit more of a concrete, established manner within a mediation, especially as a mediator, because you have that authority to kind of set the stage and the ground rules for the whole interaction. In a negotiation where we're both more or less on the same playing field in terms of you're a negotiator, I'm a negotiator. Leverage might differ more or less. We're both negotiators here. It's harder to establish a range and say, hey, your offers don't go above this or anything like that. That's tough to do. But just starting off and saying, making your offer, especially if you, you have some questions where you're not 100% sure saying all right, based on what we need. And after hearing your perspective, it seems like something in the range of this to that might be realistic. I want to see how that lands with you. You could use that as an opportunity to gather some information in that situation.

Absolutely, that'd be a great use of it. And of course keep in mind that it's not always about the money. Is also very often about the non financial aspects of it. You know, how you leave a person being perceived or for themselves or whatever. One of my friends once settled a case where a child had died. This was in Louisiana. And anyway, for that family, of course no money. And that's true in any loss of a life or major injury or whatever. No amount of money can bring that person back to life or maybe at all properly compensate for the loss. But that's what we have in our world to use. So. But what this family ended up settling for, I mean they, they arranged for some money thing obviously, but a family a week for the family with the other siblings who were still, you know, there lost their, their sibling and the parents and the children to go to Disney World for a week and have that time together as a family. And they were very grateful for that.

Wow. Wow, that is, that's incredible. That is incredible. I appreciate you sharing that. And again, it just shows the power of empathy blended with creativity in a negotiation. We cannot bring back the child, but we can help you to create a memory with other members of your family that's really powerful.

Right. And finding joy again in their lives maybe, you know, but empathy and creativity are key I think for any mediator and really for any negotiator.

Absolutely. Gene, this was great. I really appreciate you coming on the show, sharing your expertise with us again. It's always great to have another mediator on the show.

It's nice to meet you.

Yes, likewise. And before you go, please remind the listeners about what you do and how they can get in touch.

Sure. My website is lawler l a w l e r a d r dot com and I'm on LinkedIn and I've got roads to resolution, closure and certainty. That's a podcast and a YouTube videos. So feel free to get in touch with me at all. And I would just suggest that if you are interested in other types of programs like this at no cost, in addition to the ones that you would see here, maybe check out will work for food. The new possibilities hour willworkforfood news. Amazing Programs on all things negotiation, life and various various things. And there is no charge. It's only asked that a donation if you're able. And if you're not, no one's keeping chaps. So if you're able to make a donation to a food bank. And so far, almost $400,000 has been raised of which we've been told, and that's over 4 million meals. And this was started during the pandemic by Natalie Moton Armstrong, an American lockdown in Normandy, France at the time. And then Jeff Ketchavan, a mediator here in Los Angeles. And I co moderate, Saray Argmiri always. She schedules things and she is living in Canada, so it's. It's quite international.

This is great. Yes. Everybody check that out. We'll have links in the description for all of those websites. We have Jean's website, so you can check out her ADR offerings. And then also we'll work for food as well. I think that's a great opportunity and I appreciate you bringing it up and sharing it, because food insecurity is important everywhere and I don't think enough people really understand how serious that is. So I appreciate all of the work you do. And thanks again for coming on the podcast.

Thank you so much. It's a pleasure being here with you today and kudos to you for what you're doing. This is great.

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