Pro Tips for Arbitrations and Mediations

Episode Notes

Transcript

Dave Scriven-Young:

Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven Young. I’m a litigator practicing environmental and construction law in the Chicago office of O’Hagan Meyer. And I also coach young lawyers on how to accelerate their careers without burning out. And on this show, we talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and billing a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app to make sure that you’re getting updated with future episodes. And today I’m happy to introduce you to another one of our new co-hosts of the show, Jim Reeder, who’s a partner in the Houston office of Jones Day. Jim, we’re so happy to welcome you aboard. Tell us a little bit about your practice.

Jim Reeder:

Thanks Dave. Appreciate it. Indeed. I’m also a litigator practicing Andy Trust and commercial litigation, as you said in the Houston office of Jones Day. I’m also a former chair of the A section of litigation. I’ve been practicing law for 36 years, and because of tools like Litigation Radio, I continue to learn new stuff every day. I’m delighted to be taking over the hosting duties at Litigation Radio with my friend Mick Rason. It’s going to be a lot of fun.

Dave Scriven-Young:

Absolutely. And as always, this podcast is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the A BA as well as Jim. Of course, the litigation section provides litigators of all practice areas, the resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation. Mediation services in the United States is a half a billion dollar industry with over 90% of cases being resolved outside of the Courtroom. And whether the mediator is a judge or other third party neutral mediation has become the rule rather than the exception in litigation. Therefore, mediation and negotiation skills are crucial for all litigators since the vast majority of their cases will at some point be candidates for mediation, either because the judge suggests that the client asks about it or the lawyer feels like it’s an important option.

And our guest on today’s show who is an experienced litigator and mediator, will discuss how to develop these important skills. And our guest today is John Barkett. He’s a partner at the law firm of Shook, Hardy and Bacon LLP in its Miami office. He’s a commercial and environmental lawyer having handled scores of complex and simple litigation matters and federal and state courts or before an arbitration tribunal. John is also a problem solver and an accomplished arbitrator, mediator, facilitator, and allocator in a variety of commercial, environmental and reinsurance contexts. He’s a certified mediator under the rules of the Supreme Court of Florida and the Southern and middle districts of Florida, and a member of the London Court of International Arbitration and the International Council for Commercial Arbitration. He also serves on the AAA and ICDR roster of neutrals and the CPR Institute for Dispute resolutions panel of distinguished neutrals. John, welcome to the show.

John Barkett:

Thanks so much for having me.

Dave Scriven-Young:

So tell us a little bit about how you got into serving as a mediator and arbitrary. I know that you’re a longtime litigator and I think people oftentimes are very interested in becoming a mediator or perhaps an arbitrator. Tell us about your path to getting there.

John Barkett:

So it was serendipitous. It was about 30 years ago where I just got a phone call from a lawyer in Miami who knew me and said, will you mediate this case? I had not done a mediation before, but I said, sure, I’ve been in mediations, I just hadn’t performed them. So I said yes, and the parties came in, we mediated it, the case was resolved. And then a year or so later in the environmental world, I wrote a book on Superfund allocation that led to an appointment by a court to serve as a mediator, very complex case in Michigan. Lots of parties, lots of money been going on for several years. I mediated that case successfully after two days of mediation. And then frankly since then the phone has simply never stopped ringing.

Dave Scriven-Young:

And the rest is history, I guess. So I know I’ve seen a lot of advertisements for mediation training places. Center for Conflict Resolution, for example, is one that I’ve seen training for. Presumably that’s another way to get at the mediation and arbitration career path other than the coincidental or just name recognition that you had.

John Barkett:

Yeah, in Florida you can get certified. You don’t have to get certified to mediate, but if you want to get certified, you have to go through, I think it’s 40 hours of training, takes a couple of weekends to do it, and there are a number of people who in Florida get certified and follow that track. I’m not familiar with other states mediation requirements or whether there are certification programs in other states, but certainly there are a number of training programs and it’s likely very helpful if you’re going to advertise yourself as a mediator to put after your name that you’ve been certified by this group or that group. So yeah, you can go that route. I literally was on the phone recently with someone who’s just hung out a shingle as a mediator and was trying to figure out, and this person did it just as on the basis of years and years of litigation experience, nothing more didn’t go through a training program. So we chatted a little bit about how you get your name out there and normally it works the way it works for me, you one case and then word of mouth spreads. But yeah, you can go that route Dave training. Former judges obviously step right into the role and for persons with a lot of litigation experience can also step into the role. Although temperament sometimes doesn’t quite work for folks who have been litigating for decades may not have the patience that mediation requires.

Dave Scriven-Young:

Absolutely.

John Barkett:

So those are just some observations on your question.

Dave Scriven-Young:

Yeah, no, absolutely. And we’ll get to kind of what it takes to be media. One last question on the qualification piece of it. I see that you’re on the AAA panel for example. Is there a process that you go through in order to get on panels like that?

John Barkett:

There is. It’s primarily just based on recognition of your experience, your qualifications, your experience, and then all the provider organizations, they collect comments from the parties on their arbitrators, on their mediators. And so that also plays a role, but it’s generally speaking, it’s just based on the fact that you are good at what you do and they know that based on either the work you’ve done within that provider organization or the credentials that you’ve brought to the table.

Dave Scriven-Young:

Got it. And I’ll turn it over to Jim for the next question,

Jim Reeder:

John. So when you and I started practicing, there were no more than a handful of mediators in any one location. You knew exactly who they were and you knew how to choose them. It was very much in the infancy. Today there are literally scores of people who are mediators or arbitrators within various markets, which I think it makes it more difficult to kind of decide who to choose as a mediator. And I know there are a number of variables that go into choosing the right mediator, like the type of case, the amount of controversy, et cetera. But what qualities do you look for? What qualities should parties look for when they are deciding on a mediator in a case?

John Barkett:

So Jim, I have to amend your question a little bit because you started practicing 36 years ago. I started practicing 50 years ago, so there were no mediators around 50 years ago. I didn’t even hear the word mediation when I started practicing law, but you’re right. And the other amendment is there are now not scores of mediators. There are literally hundreds and hundreds and hundreds of mediators. I’m stunned by the number of emails I get asking me whether I can have any experience with the following seven potential mediator candidates. And I don’t recognize a single name and I’ve been doing this for 50 years. But to your point, to your question, I mean if I were picking a mediator party, picking a mediator, I’d want someone, number one who was smart. Number two, who has experience. Number three, has familiarity with trial practice, rules of evidence, rules of procedure.

Number four, substantive knowledge with an asterisk. I’ve mediated lots of cases where I didn’t have substantive background in the particular area, but I’ve been doing this as I said, for 50 years and I am a quick study, so I never had an issue with that. Some parties will only retain a mediator if they’ve got experience in the particular substantive area. And so that could be a qualification in a particular field in the patent area. That tends to be the rule of thumb. And I’ve written articles on patent cases decided by the Supreme Court for the last 17 years in a manuscript that I write every year. So I’m very familiar with patent law, but I’ve never been picked as an example for a patent mediation, even though I’d be very comfortable performing one because I hadn’t done one before. So substantive law also may be a qualification that parties would consider important. And then temperament I spent in that a second ago that normally goes with the territory. Good mediators have good temperament, they’re good listeners, they’re patient. And the other thing that a lot of folks do is they pick up the phone and call friends and say, have you ever worked with this mediator? What do you think? And that frequently is something that I know happens to me because people tell me that. So that’s a long-winded answer to your question.

Jim Reeder:

No, but I think that’s very, very helpful because one thing I do think that there’s a misconception, frankly, especially among parties about what you’re looking for in a mediator. You’re not necessarily looking for somebody who’s going to decide that your case is better than the other side’s case. And I think sometimes that’s the misconception. Instead, you’re looking for somebody who’s going to help you resolve the case, who’s going to be able to engage the parties in a negotiation that will reach a resolution. And I guess that then raises the question. I mean, is there a way to evaluate that? Is there a way to say, okay, here is a mediator who actually knows how to do that, can get that done and does it in a variety of ways has a bunch of skills and a toolbox to do that?

John Barkett:

Right. It’s a great question. What I say to people just said it this week in a mediation actually, I always say, look, I don’t care whether you settle the case, but I do care if you don’t settle the case. And when you’re on those courthouse steps, you think back to the mediation and say, gosh, I wished I had resolved it when I was with John Barkett and we had the chance to resolve it. So it’s my job to make sure that a party’s eyes are wide open and to help them understand the strengths of their case, the weaknesses in their case if they have weaknesses, and then to help them evaluate risk and evaluate whether the best solution to the resolution is a negotiated agreement as opposed to a trial. Now how do you decide whether mediators can do that successfully? Every mediator will tell you their success rate is 90% or higher.

You heard the statistic in Dave’s introduction that cases don’t go to trial, that more than 90% are resolved with that trial, and federal court is actually closer to 98%. So there’s either a dispositive motion or a mediation that results in the resolution of the case. So mediators just because of a concerns about risk, mediators are generally going to be successful once they explain to parties what the strengths and weaknesses of their case are. Now your question really is how do you know whether a mediator can do that successfully? And I’m not sure how best to answer that word of mouth is one way, reputation is another way. I like to think that the people that either I recommend or that recommend me do so because they just have great reputations for being well-prepared, knowledgeable, skilled in bridging impasses in the discussions when they make mediator proposals, they make them sensibly wisely and they’re generally accepted. I mean, these are the things that you try to figure out whether you can figure that out for every mediator that may be nominated. Really hard to say. Lemme mention one other thing because the dollar amount may also make a difference. Mediators charge the range of hourly rates is extraordinarily variable. Some people charge a fixed fee per day, some people charge a dollar rate per hour both in preparation for mediation. And so if you’re dealing with a $35,000 matter, you’re probably not going to want to hire a thousand dollars an hour mediator for that.

Dave Scriven-Young:

And John, so I practice a lot in the construction architects design defect type cases, and a lot of those contracts have provisions that require mediation prior to filing a lawsuit. I wonder, assuming you’ve run into those contractual provisions, how valuable do you think those provisions are and do mediations typically work in those scenarios?

John Barkett:

Yes, I have run into them. And the reason why they’re in contracts is typically because you want to try to resolve a dispute when it’s small and not let it get bigger because you don’t want the project to stop. You want to keep moving. And there’s another tool that is also used in the construction industry as you probably know, is, or these dispute resolution boards where a decision can be made. And it’s not just mediation, it’s actually a binding decision that can be made for the same reason you got to keep the project going. So yes, they can work. The best way to make them work is to have schooled up principles on both sides who have full settlement authority, who understand the costs of delay and who can sit down across the table from each other and reach a business solution to a problem that keeps the project moving outside of construction where you frequently see these clauses that they, they’re referred to as step clauses is as a prelude not to litigation, but to arbitration.

And there that can be an issue if you don’t engage in the mediation that could present a jurisdictional question for the arbitration. The arbitration itself may not be allowable if you haven’t complied with the contract requirement to conduct the mediation. But I’m a fan of them. They may not work in every setting. I remember one clause, it wasn’t a construction case, it was a very extensive cross purchase shareholder agreement involving over a billion dollars where the dispute resolution clause calls for a mediation by the CEOs of the two companies at any place in their choosing in the world. These are two international companies, and I predicted successfully that that would get nowhere because when you’re talking about a billion dollars, everyone’s going to posture. So the amount in issue can play a role there if it’s a huge amount, frequently people have their armor on and they’ll go to mediation because they have to.

But the likelihood of settling it at mediation, if there are huge sums involved, typically isn’t very high because the folks doing the negotiating aren’t as prepared as they need to be. Their lawyers are telling them, we’ve got a good chance at winning this and here’s why. And so they repeat that message and the other side’s hearing the same thing from their lawyers or its lawyers as the case may be. So yes, they work probably 95% of the time because people need to keep the project moving, but there are circumstances where they’re not going to work and you really need to get to a finder, a factor, or an adjudicator to resolve it.

Dave Scriven-Young:

And there’s also, it seems to me, a business relationship that the parties are interested in maintaining not only for the current project the dispute is about, but also perhaps a long-term kind of involvement. And I’m sure you’ve come across situations where that’s important as well.

John Barkett:

Absolutely. Yeah, no, I can’t tell you the number of times I’ve been involved in mediation where in fact I had one recently where the matter was resolved because of the business relationship. One party was a supplier to the other party and the other party wasn’t going to continue the supply arrangement as long as the litigation was continuing and a very creative resolution was settled upon to encourage continuing purchases by the one party that would result in reductions in any amounts that might be paid over time. So yes, business relationships are important and you can actually sometimes incorporate them into the resolution of the case.

Jim Reeder:

The question Dave asked about the mandated mediation provisions pre-trial, raise the question in my mind about just timing of mediation. I find that sometimes you have parties, a client who says, let’s try to get this resolved early, right? And yet there’s so much you don’t know about the case early on that sometimes that just doesn’t make sense. Other times, I don’t know whether it’s good to mediate while the subject judgment motions are pending or after they’ve been decided or as soon as fact discovery is over or as soon as expert discovery. There are a lot of different questions about the timing of when you ought to mediate. What do you think is the right time to mediate the case or is it in fact just something that you’ve just got to get a feel for?

John Barkett:

Well, it’s a very difficult question to answer, and it really is going to vary from case to case. Jim, I remember one mediation where the parties were going to come to Miami from all over the country, and when I got their mediation statements, I realized they were settling two different cases. One thought the case was worth x and the other party thought the case was worth three times X and they were approaching the mediation within that framework. And I called them up and I said, look, I think we’re going to waste our time here. This happened to be an environmental matter. And I said, I urge you to get your technical teams together to see if you can work out some of the reasons why you’re viewing these costs so differently. And they did that. We postponed the mediation, they did that and they got within, once the technical teams met, they came back for the mediation and their dollar differential then in terms of what the case was ultimately worth had been reduced to the point where we could have an intelligent mediation over the issues.

Sometimes you’re right, I’ve been in situations where I’ve adjourned a mediation to go get a deposition taken. So there’s also that possibility where you may go ahead and mediate in the mediation, you’ll discover that there’s a critical witness that both parties really need to hear the answers to questions from. And so that person’s deposition gets taken and then we reconvene. Sometimes the pending summary judgment motion is a good time to mediate because there’s an outcome there that could affect both sides and that uncertainty sometimes produces a good mediation time. But there are other situations where parties are just so entrenched in their belief they’re going to win critically if there’s cross motions for summary judgment that they’re willing to roll the dice and wait for an order. It just varies. I’ve conducted pre complaint mediation successfully. I’ve conducted pre complaint mediations where we’ve adjourned and the parties have gone out and collected depositions or I’ve also done them where we’ve awaited expert reports because that turned out to be very important. I can’t tell you there’s one answer to your question. When parties really want to settle the case, both sides want to settle the case and they get together, they will settle the case

If that’s their goal, but sometimes that isn’t quite doable. I had one matter recently where the parties were just so far apart on dollars that I could not bridge the gap and discovery was concluded, was completed. And so I said to them, go try the case. One of you is wrong, go try the case.

Jim Reeder:

And that highlights the importance, obviously the posture of the parties as well. Your job is just that much more difficult in that kind of situation. But I think it also highlights, John, your answer highlights the role of the mediator beyond just the day where the parties are there physically in your office and you’re going through the shuttle diplomacy because the decisions that you made, there were mediator decisions that is, alright, let’s get the technical people together or let’s have another deposition, or let’s wait till this event happens or another event happens. I take it you don’t feel like as a mediator, your role is confined to that day or half day when you’re doing the mediation?

John Barkett:

Absolutely not. No. I conduct pre-mediation calls with counsel. I want to really, I want the mediation to be successful. I’ll give you a good illustration of one of the reasons why I do this is as it relates to damages. So I tell parties all the time, look, you can’t go a mediation and spend mediation time educating the other side on what your damages claim is. Get the damages information into the hands of your counterparty and let them understand what it is you’re seeking and why you think you’re entitled to it so that the other party can properly prepare for mediation and you’re not wasting time in mediation using the mediator to go back and forth explaining what the damages are. So I will make pre mediation calls and I’ll say to the plaintiff, have you explained to the defendant or frequently defendants defendant exactly what your damages are and how you got there?

And I know rule 26 a one in federal court has a disclosure requirement where you’re supposed to do that but honored in the breach, frankly not typically provided with any substantive basis yet because there’s, you always see well subject to modification as we learn, as we go through discovery. So I try to make sure people understand damages beforehand because that frequently is the stumbling block. Another issue that I like to get clarity on is attorney’s fees provisions. Does the prevailing party get them? Because you can have a $200,000 case sometimes with a hundred thousand dollars of legal fees. You may be shocked to hear that, Jim, but it does happen. And so you really want to understand whether there’s a prevailing party clause. And one of the benefits, by the way of a pre complaint mediation is if there is a prevailing party clause on attorney’s fees that can play a role in urging the parties to see if they can reach a resolution before a bunch of money is spent on lawyers. And that ends up becoming the focus of a later mediation,

Jim Reeder:

Then the economics just don’t work. Yeah,

John Barkett:

Yeah. So are, yes, I don’t hesitate to pick up the phone to talk to people beforehand and particularly when I see a mediation statement come in and I see an issue there, I will call, I only mention one other thing about mediation submission. Sometimes they’re confidential just to the mediator, sometimes they’re exchanged. My personal preference as I tell parties all the time is I’d like a confidential submission, but I’d like you also to make a submission that is exchanged so that the other side can know where you’re coming from and properly prepare for mediation. Again, that’s so critical to have both sides understand the other side’s position so that they can fairly evaluate their settlement position before they walk into the mediation. And then that sometimes doesn’t happen, I’m afraid to say.

Dave Scriven-Young:

Well, and John, you mentioned preparation and getting clients prepared, getting attorneys prepared. It’s not something that typically gets talked about in law school, which is how do you prepare a client for mediation and what the role should be during the mediation. Just wondering what tips you might give to lawyers or young lawyers regarding how to properly prepare their clients for the mediation session?

John Barkett:

Another great question. So one tip is don’t wait till the last minute. That’s very important. I’ve seen that happen. And so look, clients are busy people, president of a company, general counsel of a company, there’s a vice president for a particular division that’s involved. They’re all busy people, so you got to get their attention, number one, and do it in enough time before the mediation where if some more homework needs to be done, you have time to do it. Very, very important to remember that. A second tip relates to what I just said. If you’re the plaintiff, make sure that you’re able to explain your damages theory, whether it’s in a commercial case, whether it’s a before and after claim, for example, on lost profits in a tort case, what your medical costs are, your specials are, and whether if you’re using a multiple, for example, as a basis for your damages claim or if you have some sort of a bellwether or a comparative way to identify what your damages are going to be.

Make sure on the plaintiff’s side you can articulate them in a way that the mediator can understand them and can explain them. And then on the defense side, get that information beforehand so you can properly evaluate the likelihood of success. To use your example before Dave, in a construction case, I mean suppose there’s four or five or six issues, defects, if you will, in a project that an owner is complaining about, well, each one of those will have a dollar value assigned to them. And you want to understand what’s the like of success on each of those and game it out fairly beforehand. The biggest problem I’ve seen over the years is that parties don’t fairly evaluate risk. They have a rosy picture of how they think things are going to go. I remember in a mediation I did some years ago where I gave to five lawyers in the room from the senior partner down to the junior associate, and they were literally five lawyers representing the client.

It was a big matter, and I gave them a piece of paper and I asked a bunch of questions and had them fill out the answers that related to how much they thought the dollar, what damages they thought could be obtained from the other side. And the rosiest picture was given by the least senior lawyer, and the realistic picture was given by the most senior lawyer. There was great variability, but that exercise was conducted at the mediation. Do that before the mediation with the client and explain what the risk factors are realistically. I mean, you got to put your feet in the shoes of the other party sometimes and say, well, if we lose on this, this is where we’ll end up. So those are among the things that you can do. Just preparation is really understanding risk, understanding the amount of the claim, and then evaluating how you think you’ll do in front of a judge or a jury versus what you hope to accomplish in a mediation.

Jim Reeder:

And that’s a great point, John. I use the decision trees to do sort of risk weighting, but what you find of course, and I think you referred to this earlier, is that each party can have a different view of the neutral settlement value of the case, and it’s a mediator’s job to sort of pull those things together.

John Barkett:

Jim, let me stop you. Let me stop you there on just one point to make, because one of the things I’ve found, I also use decision trees as a mediator. I prepare them during the mediation on a spreadsheet, but one of the things I found is lawyers are not nimble in evaluating dollar numbers as variables change within a mediation. And so your approach, having a decision tree before you walk into the room is very valuable so that you can make decisions nimbly as you learn things during the mediation.

Jim Reeder:

Well, I find it the same way you do, which is, and I test it on young lawyers, et cetera, and it’s constantly being modified. It’s kind of a living document for me as I go through the case. John, you talked about mediation statements and whether they’re public or made available to the other side. I do find that young lawyers, for instance, fear that you’re giving away the keys to the case when you do something like that. So there’s this balance between how much you share. I tend to overshare probably because I just have been doing it so long, it doesn’t seem to matter. But there is the question of the opening statement or the opening conference where you’ve got the parties together, and I find that some parties loathe that possibility. Do you find that opening conference, an opening statement to be a useful, valuable tool?

John Barkett:

Well, again, it depends. As a certified mediator, I have the obligation to make the offer to each side to do it. What I say to them is privately typically, look, this cannot be an attack. You want to be civil, you want to be straightforward, cut out the adverbs, cut out the adjectives and lay out your case. You’re looking at me, but you’re talking to your opponent. This is your opportunity to speak directly to the decision maker on the other side. And if you can do it in a way that’s, as I said, civil professional, and you’ve got appropriate backup to defend your position, that could be very important. It could be a very important tool. And so I’ve seen it work and I’ve seen it not work. Typically, it hasn’t worked because people haven’t listened to me and they’ve used adverse and they’ve used adjectives and they’ve reflected frustration over where they stand in the case and the like.

But it really depends. If you’ve got sophisticated parties on both sides and they really know their case frequently, they’ll say, look, let’s not bother. Let’s just go right into private caucus. We know where they’re coming from and if mediation papers have been exchanged, and if the party has done what I always ask, which is what you do, Jim, lay out your position. I mean, just like you’re in the opening statement in court, lay it out so the other side knows where you’re coming from. That’s the best way to settle the case when you’re both on the same plane factually and legally, meaning from an understanding standpoint, that’s when you can evaluate risk best. But if that’s been done, sometimes you don’t need opening statements if that’s not been done. Sometimes opening statements serve a purpose. And then sometimes if you’ve only had one exchange of mediation submissions and no rebuttals, sometimes the opening statement is used as a rebuttal to the mediation statement that the other side submitted. So it really varies. I just tell people, if you’re going to do it, make sure when it’s done, you haven’t created any emotional problems that I have to overcome as a mediator.

Jim Reeder:

Exactly. And it actually is, people ask about the skills that lawyers need in mediation, and I think they often minimize what the skills are that are necessary, but that is one of the skills that you want to bring, which is kind of a dispassionate way of conveying the elements of your case without inflaming the other side.

John Barkett:

Could not agree more, could not agree more.

Jim Reeder:

Yeah.

Dave Scriven-Young:

So last question, and I know you could probably teach a masterclass on this, John, but in terms of negotiation skills, that’s another skill that lawyers named walking into a mediation. Can you give us maybe your top two tips on successful negotiations at mediations?

John Barkett:

So again, everyone comes to mediation with a different approach. One tip is certainly to game things out ahead of time, not just one step, but two steps and three steps and four steps. So know where you want to end up. And again, that should be a realistic number and not a pie in the sky, rosy slam dunk sort of number because no case really is a slam dunk case, at least most cases are not slam dunk cases. So think through the process before you walk into the mediation room with your client. And then when you’re in the mediation room, if you’ve already gamed out some of these things, it’ll save time for sure and allow you to respond in a reasonable time to, as the offers go back and forth. So sort of preparation gaming things out is one tip. Bracketing is something that I see a lot of as a negotiating tool where you’re stumbling along, you’re very far apart.

So brackets can be proposed. And if you can get both parties to agree that sometimes there’s a way to bridge a gap. Some folks like to, I use the word dance, they move in small increments, and so you can spend a whole day and not get very far. And why do they do that? Because that’s their negotiating strategy. I get that and I’ll dance with them if that’s what they want. But sometimes you got to make sort of more significant moves to get the other side to make more significant moves. And this, by the way, where the mediator really is important because the mediator can say to both sides, it looks to me like you’re dancing. If you really want to resolve this case, you really need to move more. And I’d like a commitment from you that if I can get the other side to move significantly, that you also are going to move significantly, because that frequently is the reason why people dance.

They’re worried that if they get close to their bottom line too quickly, they’ll end up below their bottom line. So I mean, those are the things that I’ve seen. I don’t know that there’s the really, the best strategy in a sense is having folks present with full settlement authority, a person present who doesn’t have to pick up the phone to call anybody to resolve the case. And if you can get two people like that and a mediation, assuming it’s a two party mediation, then negotiating strategy frequently becomes a business negotiation where the mediator probably isn’t even necessary. If you could have gotten those people together beforehand. And I frequently, by the way, will get business people together during the mediation. I’ll ask the lawyers, I’ll ask the parties if they will agree to have the business people meet directly. And I just sit back and listen as they talk.

And I can’t tell you the number of times that cases have been resolved when you’ve got people with full settlement authority sitting down together, going over the issues and coming up with a business solution. But I don’t know that I’ve answered your question directly, Dave. I hope I’ve given some tips there. It varies from case to case dollar amount to dollar amount, and some people play it close to the vest for a long time. I don’t typically recommend that, but I get it. It’s not my case. And sometimes the mediator has to step in to bridge gaps when people engage in that kind of strategy. Some people like to just go pretty quickly to close to a bottom line number so they’re not spending hours and hours mediation, but then the mediator has to couch that number in a way that the other side understands that there isn’t much room to move. But that’s again, a longwinded answer to your question. I hope I’ve answered it.

Dave Scriven-Young:

Absolutely. And maybe Jim and Mick will have you back to talk more about negotiation strategies, but we are at the end of our time together, and John wanted to leave time. If you had any kind of last thoughts for our listeners today about mediation, perhaps becoming a mediator, some of your challenges or perhaps why you continued to mediate cases to this day.

John Barkett:

Well, I mean, I will say preparation as I’ve mentioned the word several times today, but preparation is really, really critical. Both the client being prepared and the lawyer being prepared. Take mediation seriously. Don’t spend the money or client’s money or don’t have the client spend the time to go through a mediation process and see it fail if you can reach a resolution. I do understand there are some cases which end up becoming not settleable because as I said, pigs get fat, hogs get slaughtered. If you’re dealing with a hog, then you may not settle the case, but preparation is really, really important. And use the mediation time wisely. Make sure that you educate beforehand as opposed to spending mediation time, educating as far as getting into the mediation field. You really need your first case and be successful at that, and then word of mouth will spread, and then hopefully you’ll have friends who will retain you as the mediator and get you that opportunity for that first case. So those are some thoughts. Happy to have people continue the dialogue with me if they want to reach out. I’m easily findable on the internet.

Dave Scriven-Young:

Absolutely. Well, John Barkett, a partner with Shook Hardy and Bacon in Miami. Thanks so much for being on the show today.

John Barkett:

Thanks so much for having me. Again,

Dave Scriven-Young:

Thanks to litigation section Premier sponsor, BRG for sponsoring this podcast. BRG is an award-winning global consulting firm composed of world-class experts in accounting, damages analysis, economics, finance, intellectual property valuation, data analytics and statistics who work across industries, disciplines, and jurisdictions, delivering clear perspectives that you can count on. Their guiding principle is intelligence that works. Learn [email protected]. And now it’s time for a quick tip from the A BA litigation section’s, mental health and wellness task force. And I’d like to welcome back Beth Fenton to the podcast. Beth is a partner in the Delaware office of Barnes and Thornburg, where she litigates and tries cases involving business torts, shareholder and post-closing disputes, antitrust issues, piercing the corporate veil matters and enforcement of restrictive covenants with a particular focus on the Delaware Court of Chancery. Welcome to the show, Beth. What’s your quick tip?

Beth Fenton:

Thanks, Dave. It’s always good to be on Litigation Radio and I have a tip which hopefully will be timely for a bunch of our listeners. The tips for today are about reentry after a vacation. We’re getting ready when we record this. We’re going into the 4th of July holiday, and I think a lot of folks are going on vacation, so hopefully this will be useful to you. The first tip is if you can get back home with a day before you have to go back to the office, that just gives you a little buffer before you dive headlong into all of the work that has piled up while you’ve been away, that gives you a chance to go grocery shopping, get your laundry done so you’re not just overwhelmed that first day back at work. The second tip is anticipate that you’ll need a couple of blocks of time to go through your email and your mail.

If you are like me and you use your Outlook calendar, just block out a couple of times so people know that you’re not available in those times, so you have a chance to do that in a way that is the most efficient way to do it. This is a tip that I’ve never done, but I read about it and I thought it was a good one. So I’m going to recommend it to you. Plan your return from vacation before you leave. So try to set some time up on your schedule the day before you leave, where you make a list of the things that you need to do when you get back. That way you don’t have to go back through your emails and your inbox and figure out where you left things. It’s a proactive way of making your return less stressful, and I’m going to do it on my next vacation.

Another tip is use it as a chance to reconnect with your work team. So when you get back, be sure to reach out to folks. Let them know that you’re back in the office, you’re ready to jump back in. And the other bonus of that practice is that it may help you triage your emails better. So if you make a couple of phone calls or you send a couple of emails to folks, they might just fill you in on some things that happened while you’re away so that you can maybe not have to read every email in detail. And then the other key tip for coming back from vacation is pace yourself. You’re going to be dealing with catching up with either a few days a week, maybe even if you’re lucky, a two week hiatus from being on your email all day long every day.

And so be sure to give yourself the time to get through that. You’re not going to be able to get through everything in one day, so prioritize the ones that need to happen immediately. And then other things like non-billable tasks, administrative tasks, you might put those off a day or two until you’ve got the email under control and then try to take back from your vacation to your so-called real life, some of the things you learned while you’re on vacation. So for example, if you went on a vacation and you had a lot of fresh fruit and vegetables while you were away, try to bring that back into your home life. Similarly, if you got good sleep, think about why your sleep was good and is there a way to make that part of your regular life. And then finally, my other tip for reentry from vacation is I always try to plan my next vacation as soon as I get back. I am pleased to be here on behalf of the section of Litigations Mental Health and Wellness Committee. I hope these tips helped you out. There’s lots of content on the website if you want to know more. I hope you have a great summer. Thank you.

Dave Scriven-Young:

Thanks Beth, again for being on the show today. And that’s all we have for our show, and I’d love to hear your thoughts about today’s episode. If you like the show, please help spread the word by sharing the link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple Podcast, it’s incredibly helpful. Even a quick rating at Spotify is super helpful as well. And finally, I want to quickly thank some folks who make the show possible. Thanks, To Michelle Oberts, who’s on staff with the litigation section. Thanks. Also goes out to the co-chairs of the litigation section’s audio contact committee, Hailey Maple and Charlotte Stevens. Thanks to the audio professionals from Legal Talk Network. And last but not least, thank you so much for listening. I’ll see you next time.

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