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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Mediators and Industry Knowledge, Game Theory and Understanding Conflict

Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web):  Should Mediators Be Expert in the Field of the Dispute?  Excerpt below.

Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe.  His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.  He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.  The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness.  “A lack of industry expertise has never caused a failure of the mediation process.

I must admit that when Tim Hughes (@vaconstruction) -- he of the Virginia Real Estate, Land Use and Construction Law blog and an avid ADR watcher -- tipped me off to this post, I read the question as asking whether mediators should be experts in the "field" of conflict - rather than in the industry in which the disputants are involved.

Here's my opinion (as if you didn't already know).  As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle.  I imagine the great predictor, the political scientist and Hoover Institute Fellow  Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below).  See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?

What is the "other guy's" decision cycle?  It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision.  Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other.  Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber.  Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.

(Chart from Cultivating Piece)

You knew I'd come to my own "specialty" knowledge.  Some of it is industry specific -- insurance and  financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries.  Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients.  I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions. 

I can read a financial statement. 

At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal.  And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.

I am also schooled in the "field" of conflict resolution.  I understand at depth the cognitive biases --  universal tendencies in the way we think -- that inhibit rational decision making.  I know how conflict escalates and, more importantly, how it can be deescalated.  I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger);  the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.

And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders. 

I know this sounds like a lot of boastful self-promotion (it is).  Please don't take my word for it.  Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.

This is what I recall of mediator-hunting, however.  I'd send out a list to my colleagues.  I'd invariably get back opinions that were all over the board.  He/she is great with clients but usually ends up splitting the baby in half.  He/she talks too much and listens too little.  He/she marginalized the client and made me look bad.  He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client.  This guy/gal can settle anything.  Brilliant.  Magical.  

So what's a beleaguered litigator to do?  Ask people you respect both inside and outside your law firm.  Ask how the mediator handles the "process dimensions" of the mediation.  Does he/she simply carry numbers and rationales back and forth between separate caucus rooms.  Can she give bad news to both sides.  Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions?  Is the client happy with the result and with the process?  After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved.   You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.

I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.

So what's my answer to the question whether the mediator should have industry knowledge?  That answer lies, as most legal problems do, in the gray zone.  Industry knowledge helps.  But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work.  That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive.  I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles. 

I can learn, but if you called me for a personal injury or employment mediator, I wouldn't recommend myself - I'd recommend someone like Janet Fields or Nikki Tolt at Judicate West (personal injury) or Deborah Rothman, Jay McCauley or Lisa Klerman at their own mediation shops (employment). 

For commercial mediation, I'd recommend the usual suspects (including, of course, myself) and Jeff Kichaven, Eric Green, Jay and Deborah, Ralph Williams (at ADR Services, Inc.), George Calkins and Jerry Kurland at JAMS (complex construction litigation); Les Weinstein (IP, particularly as an arbitrator); Mike Young (Judicate West and Alston + Bird); and, John Leo Wagner (Judicate West). 

I know I've left a lot of fine mediators out of this list but these are the ones who immediately spring to mind because I either have personal experience as a client or co-mediator or I have it on the authority of my husband, Stephen N. Goldberg, formerly at Heller and now at Dickstein Shapiro (author of the Catastrophic Insurance Coverage blog).

Enough!  Off to the real brains at hand -- Bruce Bueno de Mesquita at TED.

Comments (6)

Read through and enter the discussion by using the form at the end
Timothy R. Hughes - October 26, 2009 1:11 PM

I thought you would be interested in this topic, but what a tremendous discussion erupted!

Your points remind me of a discussion internally regarding practice areas, industry lingo, and business development. What I truly describe myself as to folks is a complex civil litigator/trial attorney. The real skill is knowing how to attack a problem, set up arguments, drill witnesses in deposition and trial, marshal facts and arguments persuasively, and boil complexity to simple, artful persuasion.

Clients tend instead to gravitate towards industry based skill sets and knowledge. The can see and understand when a lawyer knows their language, understands their business issues, and can communicate with them in their shorthand.

Ultimately, that may or may not translate in the lawyer's talent at advocacy or persuasion. These skills and areas of knowledge are definitely helpful to factually analyze a case, its strong and weak points, and determine how to proceed. In the end though, knowing how to tear apart an expert is its own skill and talent.

I handle a lot of construction related matters, so that becomes a shorthand niche to describe. I am also involved in a LOT of mediation. I have tended to go for folks that have some level of familiarity with construction contracts and issues for purposes of credibility with the parties and also to streamline the education process during the mediation.

In the end, one point of agreement and one of disagreement: I agree with you that a talented mediator needs to possess expertise or experience on multiple lines, but that grasping decision-making and conflict resolution are way more important than having a ton of case specific litigation experience.

I disagree that your post sounds like a lot of boastful self-promotion. :P

Peter Phillips - October 27, 2009 9:56 AM

Thanks yet again for your kind words on the blog, Vicki! And for commercial mediators, I hear there's a guy in Montclair NJ who is pretty good!

Vickie - October 28, 2009 12:09 PM

Thanks Tim and Peter for dropping by and especially to Tim for the nice words about this post not sounding like a lot of boastful self-promotion, esp. since a recent commenter said I was pathetically arrogant!

In my own legal practice (predating my ADR practice) I found industry knowledge easy to pick up and specialty legal knowledge taking a little additional time (like insurance coverage - horizontal and vertical exhaustion of limits, for instance, "trigger" of coverage for long-tail claims and the like. On the other hand, I once KILLED a nationwide class action that attorneys for Fortune 50 co-defendants settled for considerably more burdensome than my client did because I didn't know that my settlement proposal contained proposals that SIMPLY WEREN'T DONE. I was too green to "know" that I couldn't settle the case in the way I did. So every element of our practice (skill, experience, expertise, technical and legal knowledge) has its up side and its down side and every weakness has its strengths. The agile, the innovative, the courageous and the persistent prevail more often than not, which is a good as it gets in an adversarial system.

Timothy R. Hughes - October 31, 2009 3:43 PM

Now I am going to have to go digging for that comment. I know pathetically arrogant (I suppose I have been guilty of it once or twice), and I never have seen an inkling of that from you!

Michael Mcilwrath - November 1, 2009 9:05 AM

Victoria, another great post (as was Peter's) to which I'd add my own humble comment that as a user of mediation services it's hard to avoid the "it depends" answer when asked about who would be the right mediator for a particular dispute and whether special expertise is desired. Inevitably, someone on one side or the other will insist on trying to figure out who would be the right mediator based on the parties, where they are from, the industry or technical background, the main points of disagreement, and what exactly the other side will be looking for or expecting from the mediation.

Easy to get lost in those details, which unfortunately we have in the past at my division, and it has led to some awful experiences with neutrals who lacked basic competency in mediation. We've had more than our share of prominent professors, retired judges, or distinguished engineers, who felt they did not need any training or experience to be able to hold themselves out as "mediators".

I can tell horror stories about unqualified "mediators" inadvertently leading the parties into greater conflict than when they first approached mediation (occasionally discrediting the practice of mediation with one or more of the participants).

While we like to be able to defer to preferences expressed by the other side (and often have to just to get to mediation), one lesson learned has been to insist that all candidates being considered for an appointment as mediator are genuinely qualified as such. So my own answer to the question you and Peter have posed is this: what we want for our dispute in most cases will be a mediator who is a great.... mediator.

In fact, now that I think of it, all of the most successful experiences we have had in mediation have been with mediators who did not have core industry/technical competence. They didn't need it as the technical details tended to be filled in by the technical people on both sides.


Vickie Pynchon - November 1, 2009 10:21 AM

Thanks SO MUCH for sharing your experience and your insight with us Mike.

For those who don't know him, Mike is Senior Counsel, Litigation for GE Infrastructure - Oil & Gas. He is based at his company's headquarters in Florence, Italy where he represents his division in disputes world-wide, including work in negotiations, mediation, and arbitration.

He is also Chairman of the Board of the International Mediation Institute, IMI (www.IMImediation.org).

Mike has been interviewing mediators and their clients in a series of podcasts for the International Institute for Conflict Prevention and Resolution for years.

These incredibly valuable podcasts can be found here: http://www.cpradr.org/NewsArticles/Podcasts/tabid/319/Default.aspx.

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