Miles Mediation & Arbitration Services

ATLANTA OFFICE:
6 Concourse Pkwy., Suite 1950

Atlanta, GA 30328
(678) 320-9118

SAVANNAH OFFICE:
17 Park of Commerce Blvd.
Suite 301

Savannah, GA 31405
(912) 417-2879
All Fax: (404) 389-0831

March 29, 2016 No Comments


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In every mediation, the mediator has to point out certain weaknesses in a party’s case. The lawyers understand that this is the mediator’s job. However, unless the mediator has established a relationship of trust and respect with the individual plaintiff (who is typically the only person who has never gone through a mediation before), this action on the part of the mediator can be seen as “taking sides” with the other party. Thus, one of the most important tasks of the mediator is to establish a relationship of trust and respect with the plaintiff at the very outset of the mediation. At Miles, we strive to do this from the moment our clients enter our office.

Imagine being from a small town or a rural area, driving into Atlanta, coming into a high-rise building, and being surrounded by lawyers talking about your case. Growing up in rural Georgia myself, I understand how intimidating that can be.

However, add to that the fact that English is not your first language, and you are then faced with the daunting task of trying to understand what all of these people are saying about you and trying to explain your case in a language you barely understand.

Consider though how you would feel if your mediator greeted you in your native language, guided you to the kitchen for refreshments, told you where the bathroom was, and then started to discuss your case with you in your native tongue. What a relief that would be, and what an immediate bond of trust and respect would be formed.

The Hispanic population in Georgia has grown considerably over the years, and we routinely have clients coming into Miles who speak little or no English. I am not Hispanic myself, but I have been a student of Spanish language and Hispanic culture for nearly 40 years. In 2000, I traveled to Guatemala and spent an extended period of time taking an immersion course in Spanish. I have represented numerous Hispanic clients and have conducted many mediations with Spanish-speaking clients.

I would welcome the opportunity to mediate any case in which the clients are Spanish-speaking and would be made to feel more “at ease” with a mediator who speaks their language.

Read more about Burke’s immersion experience in Guatemala.

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March 21, 2016 No Comments

By Wayne Wilson, Esq.

Team Leader Wayne Wilson

The mediation process begins with the understanding that the parties involved come into the game with totally separate needs, realities and goals. While it is not necessary that anyone accept or “buy-in” to what the other side expects, believes, or desires, it remains an important part of the process to understand and factor them into the equation. Indeed, it is at the mediation that the parties are provided the opportunity, probably for the first time, to gain an appreciation of the thought process of the other party. This is the only moment during the litigation process in which the parties can sit across the table from each other and express their feelings, opinions, and beliefs.

 

The Plaintiff’s Reality

So just what does the plaintiff bring to the party in this endeavor? What are his issues which have to be examined or explored so that resolution of the claim can be accomplished? The defense knows and understands its issues, but what of the other half of the settlement equation.

Most plaintiffs have a lack of understanding, or at best a minimal understanding, of the legal process. At mediation they get a taste of reality as it exists in the context of litigation.

As much as the representative for the insurer/insured may believe that he has all of the information and facts at his disposal through the investigation or discovery process necessary to evaluate the case, the fact of the matter remains that the plaintiff is the only individual at the mediation who knows all of the facts regarding the incident and injuries and damages. He knows everything about his life and what effect the accident has had. He is aware of his medical history leading up to the time of the accident. What was experienced in the collision. What pain he has endured as result of the accident. How it has affected his job and income. He is the only person experiencing the fear of an unknown future. He is living this daily. That really makes the plaintiff the “expert” as to this claim. He has the right to say “I know everything about me, I know everything about the accident, I know how much I hurt, I know this is not going to go away, so I deserve and have the right to be compensated in the amount of “$X.”

That is his reality. That is the basis for his opinion as to the value of the case.

 

The Defendant’s Reality

The defendant/insurer/defense counsel comes to the mediation with an evaluation of the case based upon information and documentation derived from their investigation and the discovery process. The defense lives, basically, in a black and white world in their attempts at evaluating a case. And it is the job of the mediator to explain this to the plaintiff in such a way as to remove animosity or ill-will as a factor in the negotiations. Anything and everything that transpires during the mediation, from the defense perspective, is a “business decision.” But the business decision does not exclude, but rather incorporates, an understanding of the needs of the plaintiff.

The fact that this is a “business decision” does not preclude an effort by counsel and/or the claims representative for the defendant to foster a positive environment at the mediation. The plaintiff is nervous, unfamiliar with, and wary of the process. He is in somewhat intimidating surroundings. It is in the best interests of all parties to be friendly and personable with the plaintiff. The goal at mediation is resolution. And this can only be accomplished if the plaintiff is comfortable in the environment and therefore given the opportunity to make an intelligent and informed decision as to the value of his case.

It is not a sign of weakness, but rather an acknowledgment of the plaintiff’s concerns and needs, that you recognize the other party’s loss, hope for a positive future, and appreciate their agreeing to attend the Mediation. You are in a position to heal old wounds for the plaintiff while setting the stage for a favorable resolution for your client of a matter which could prove to be problematic in the future. A “win/win.”

CAUTION: Sincerity works (as it should). Insincerity does not work (as it shouldn’t). If you can’t say it and mean it, don’t say it.

The defense reality is based upon documents (medical records, employment files, photographs, discovery responses, and deposition testimony), history of dealing with and evaluating these types of matters, legal issues, and an understanding and appreciation of the concerns in dealing with the “great unknown,” i.e. the jury. The mediator will have the opportunity to explain to the plaintiff how the attorney for defendant may present this type of information to a jury. Experience dictates that rarely does a plaintiff have occasion to see this side of his case.

The plaintiff will benefit by listening to, considering, and appreciating the “Defense Reality.” Likewise, the Defendant/Insurer must be willing to listen to, understand, consider, and appreciate the “Plaintiff’s Reality.” It doesn’t have to be accepted, but it is a factor in any effort to resolve the case in a fair and amicable fashion. And a combination of these two realities is potentially what a jury will be entertaining while sitting behind closed doors deliberating the case.

Which leads to the third reality.

 

The Reality of the Courtroom

You can think of these realities as circles of steel that magicians magically attach to each other. Presumably, the circles should all be the same size. But they are not. The circle representing the “Reality of the Courtroom” is bigger, stronger, and heavier. It, by necessity, must be given the greater weight. The plaintiff must understand that as powerful as his reality is, it is not the only one to be considered in arriving at a negotiated settlement. Conversely, the Defendant/Insurance Reality is not “controlling” either – a fact that is sometimes difficult for an adjuster or claims handler to fathom. It is for that reason, I caution the plaintiff and the insurance adjuster to heed the thoughts and concerns and opinions of counsel. They have ”been there done that” and know better than anyone what can happen when a matter is placed in the hands of twelve strangers.

A jury is like a twelve-legged spider with each leg seemingly walking in its own direction without regard for the other eleven. It is amazing that such a thing can ever get anywhere. The plaintiff must be concerned as to whether this “group” can ever come together and reach a decision in his favor. The inherent difficulty any plaintiff’s attorney faces in successfully convincing twelve people that his client is deserving of a verdict is hard to comprehend. However, the defendant /insurer must be aware that juries do not deal with these issues day after day after day, and, therefore, are not likely to become as entrenched in their positions as claim representatives who see this every day. A very experienced and insightful claims rep who I worked closely with many years ago put it best when, after I explained to him in detail my thorough and “well-thought-out” defense and plan of attack for trial stated, ”Wayne, you have done a great job in preparing for trial and everything you say is right. And we are still going to lose.” The case settled.

The 4 Settlement Motivators

At Miles Mediation, we have conducted a survey of plaintiffs, plaintiff attorneys, defense attorneys, and claims professionals to determine what motivated them to settle. The four primary motivators in settling a case are fear, justice, anger and money. Money is usually considered the major factor of all concerned. No surprise there. Therefore, both sides have mirror-image goals in that respect.
The fear factor, i.e. a jury of strangers making a decision that may or may not go as you think appropriate, rests with all participants at mediation. Anger and the desire for justice may be the “X” factors that, if properly addressed, may be the final building blocks of a successful mediation. The defense team must acknowledge that the plaintiff is the only participant in the proceeding that may legitimately have a right to be angered in that 1) he has been injured due to the actions of another, and 2) he is having to live through a very difficult experience, i.e. litigation, to “simply get what he is entitled to.” For the plaintiff motivated by anger or the need for justice, the process can be as important as the settlement amount. They have a story to tell and a need to be heard, understood, and appreciated. If their issues and concerns are legitimate, the defense owes them that right. And by affording them that right, the potential for a successful resolution of the case for all parties is greatly enhanced.


 

*On March 18, Team Leader Wayne Wilson presented at Houston Smith’s seminar “Winning Settlement Strategies” at the State Bar of Georgia. Wayne’s paper, The Mediation Process- Strategies and Techniques for Success,” includes a section on the realities that both parties face during a mediation.

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March 18, 2016 No Comments

By Wayne Wilson
Team Leader Wayne Wilson

Positive Communication Enhances the Potential for Success

The following excerpts from John Miles’ excellent publication, A New Day in Court, address the issue of communication in the context of the mediation process:

“Communication drives mediation. Both the plaintiff and defendant need to speak and be heard. Resolution requires that both parties use positive language.”

Expressing Empathy

One of the most effective communication techniques is expressing empathy. Plaintiffs motivated by anger or justice have suffered a loss. They feel, often rightly so, that they do not deserve what happened to them. They need to have their suffering acknowledged. They know that the defendant can’t change what happened and that, in the end, their case will be resolved for a sum of money. Regardless of who is legally responsible, these plaintiffs need the defendant to understand their circumstances. There is value in acknowledgment.
Expressing empathy is not the same as accepting legal responsibility. Empathy is any expression that conveys understanding of an identification with another’s situation. Simply stating that “I’m sorry that you have had to go through this” can change the tone of the mediation and set the stage for resolution.

Accepting Responsibility

It is a rare case in which the defense cannot take responsibility for some aspect of the situation. If negligence is fairly clear or the defense plans to admit liability at trial, the defense should acknowledge the insured’s responsibility in causing the accident. If there is an issue as to negligence, but not as to damages or injuries, an acceptance of and understanding that plaintiff’s injuries are legitimate can be validation that the plaintiff is being honest without accepting liability for the accident or injuries.

Showing Flexibility

Drawing lines in the sand hinders the mediation process. On occasions when the defense is limited as to the amount it can offer to settle the case, communication is of the utmost importance. Human nature is such that, even if we know we should accept the offer, most of us will reject an ultimatum. For that reason, telling the plaintiff to “take it or leave it” is a risky strategy.

The amount of the offer can show flexibility. Structured settlements not only allow a plaintiff to realize more money over time, but they also show an appreciation for the plaintiff’s long-term needs. Structured settlements demonstrate a willingness to be creative in finding a way to resolve the case.

Being Respectful

Research at Miles Mediations has shown “process” to be as important as the settlement amount for plaintiffs motivated by anger or justice. Needless to say, you should listen to people who need to express themselves.

Many defense attorneys and insurance claims adjusters fail to actively listen to the plaintiff during the opening mediation session. They appear disengaged and dismissive. And to the plaintiff, simply disrespectful. This “one on one time” with the plaintiff in the opening session provides an excellent opportunity to treat the plaintiff with the courtesy and respect he deserves. Plaintiffs have the ability to respond positively to legitimate factual differences with the insurance adjuster. Plaintiffs will never respond positively to indifference, irresponsibility, inflexibility, disrespectfulness, rudeness or scorn. If the goal is to have the mediation fail, these behaviors are certain to make that a reality.

Being Prepared

Being prepared is a positive communication technique that closely parallels showing respect. Preparedness is a technique that is of equal importance to plaintiff attorneys, defense attorneys, and insurance claims adjusters.

The plaintiff considers his case to be singularly important. He expects (and deserves) professional consideration. An attorney or adjuster who misstates facts or appears unprepared sends the message that the case doesn’t matter and that the plaintiff doesn’t matter. Likewise, the failure of an adjuster to be present at mediation sends the same message. The plaintiff considers the mediation as his day in court. In that respect, it is a very important day in his life. He has been anticipating this day for weeks. He has discussed the case with family members and friends who are sometimes waiting in the outer office to support him. Imagine his disappointment when the adjuster is not there. It is difficult to mediate with a plaintiff who has been made to feel insignificant. The mediator must face the challenge of convincing the plaintiff to continue with the process before he can even begin to mediate a resolution of the case.

*Excerpt from Wayne Wilson’s paper, “The Mediation Process- Strategies and Techniques for Success.” Wayne presented the paper at the ICLE Seminar, Winning Settlement Strategies on March 18, 2016.

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March 16, 2016 No Comments

By John Miles

(excerpt from the white paper, “Successfully Presenting Your Case in Mediation and Arbitration”)

Credit: Wesley VanDinter/iStockphoto.com.

Credit: Wesley VanDinter

“I don’t want another mother to go through what I’ve been through.”  A mother whose son had been killed in an automobile accident caused by a drunk driver told me that she did not want her son to have died in vain.  She wanted something positive to come from this tragedy.

This mother is an example of the individual motivated by justice.  Plaintiffs motivated by justice have a great deal in common with those who are motivated by anger.  Their lives have been impacted in a negative way.  Something horrible and unexpected happened to them.  While the persons motivated by anger want to punish the individual or entity that harmed them, those motivated by justice see what happened to them in a larger context.  Those motivated by justice want to find meaning in the tragedy.  They want to prevent what happened to them from happening to someone else.  Their lawsuit or claim should be a mechanism for change.  Plaintiffs motivated in this way want far more than an apology from the defendant.  They want the defendant to take concrete steps to ensure that others will not be harmed.  They often view themselves in a heroic role defending the rights of the innocent.

This type of person has been portrayed in many films.  In the movie Braveheart William Wallace, played by Mel Gibson, leads a small band of men against the English army.  While standing on the field of battle, some of Wallace’s men began to lose heart.  One man wonders aloud if he should run away – and live.  Wallace, on horseback, addresses his faltering men.  braveheartHe acknowledges that if they run, they will live; if they stay and fight, they might die.  But he asks if many years later when they were on their death beds, they wouldn’t trade every day they’d gained to be back on this battlefield.  Wouldn’t they trade every day they’d gained to be able to tell the enemy that he can take their property, their lives, but he can never take their freedom.  They stay; they fight, and they win.

Like William Wallace, the individual motivated by justice will fight for what he believes to be a just cause.  Like Wallace, they will not be dissuaded by long odds.  These individuals are often energized by the prospect of a tough fight.  For them, the struggle is often as important as the outcome.  Certainly they want to win but they see value in fighting – even if they lose.  There is a Theodore Roosevelt quotation hanging in my office that captures the mindset of the person motivated by justice.

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done them better.  The credit belongs to the man who is actually in the arena:  whose face is marred by the dust and sweat and blood; who strives valiantly; who errs and comes short again and again….who knows the great enthusiasms, the great devotions and spends himself in a worthy cause; who, at best, knows in the end the triumph of high achievement; and who, at the worst if he fails, at least fails while doing greatly, so that his place shall never be with those cold and timid souls who know neither victory or defeat.

Because these individuals often embrace conflict, it is difficult to resolve their cases.  Not too long ago, I mediated a case involving a child who drowned in a neighborhood pool.  In addition to a monetary demand, the plaintiff (the child’s mother) wanted the Homeowners Association to take steps to ensure the safety of children who used the pool.

In most mediations, the defendant’s insurance carrier attends the mediation on the defendant’s behalf and handles the negotiations.  The insurance company can offer the plaintiff money but is powerless to require the defendant to do anything.  In most mediations, representatives of the defendant do not attend the mediation.

In this case, the plaintiff wanted to talk about the need to prevent injury to other children and the insurance company wanted to talk about money.  Understanding that they had different motivators, I interrupted the mediation to place a call to the president of the Homeowners Association.  He agreed to sit down with the plaintiff and discuss ways to make the pool safer.

At the conclusion of the phone call, the plaintiff and insurance company were able to agree on a settlement amount.  JUSTICE WANTS CHANGE FOR THE BETTER!

In the case of the Homeowners Association, the president has the authority to meet with the plaintiff and make recommendations about safety.  Most individuals motivated by justice are negotiating against large corporations.  Even if they wanted to, the corporate representatives attending the mediation do not have the authority to change company policy.

The person motivated by justice is nevertheless satisfied knowing that he has been heard by the company.  I have sometimes suggested that a plaintiff put his concerns and suggestions in writing and send the letter to the appropriate person in the corporation.  As with people motivated by anger, people motivated by justice need to be heard.

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March 7, 2016 No Comments

Team Parent mediator Gino Brogdon received two awards recently. The National Trial Lawyers Association named him to its prestigious Top 40 under 40 list. Additionally, the National Academy of Personal Injury Attorneys selected him as a “Top Ten Attorney Under 40.”

Gino has been recognized this year as a rising leader on a number of fronts including acceptance into the 2016 Class of both GTLA Lead and LEAD Atlanta. His accolades also include being named to the National Top 100 Black Lawyers list. Gino is a skilled orator and has had the opportunity to speak in front of many audiences, including the 12th Annual Institute for Continuing Legal Education in Georgia and the 2013 Georgia Trial Lawyers Association Annual Convention. Most recently, he provided insight to law students at his alma mater as a guest lecturer for the University of Georgia School of Law’s CEASE clinic.

Beyond balancing a rigorous schedule of litigation, mediation and speaking engagements, Gino is able to balance a hefty list of volunteer and civic commitments. His leadership qualities are evident as he actively serves on several legal executive boards including the Atlanta Bar Association, Litigation section and The Gate City Bar Association. In both roles, he provides both an innovative perspective and the dedication to get things done. In addition, he also serves as a member of the Atlanta Citizen Review Board where he provides legal insight in evaluating excessive force and other claims against law enforcement.

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