GEORGIA'S LEADING ADR FIRM

Mediator Gino Brogdon, Jr. recently joined with his brother NBA Rookie of the Year, Malcolm Brogdon, and his mother, Professor Jann Adams, as featured speakers at Morehouse College’s student enrichment event, Crown Forum After Dark.   The trio spoke to Morehouse students and members of the Atlanta community about the importance of goal setting, creating a legacy, the value of sacrifice, and the impact of mentorship.

Gino is a graduate of Morehouse, where his mother serves as a Professor of Psychology and Associate Provost. Malcolm Brogdon is a point guard for the Milwaukee Bucks.

Gino Brogdon, Jr., Esq. is a mediator with Miles in Atlanta. He specializes in areas of automobile and trucking, personal injury, wrongful death, civil rights, business, contracts, insurance coverage disputes, and complex medical malpractice. To schedule a mediation with Gino or for more information, please call 678-320-9118 or visit his online calendar.

As a featured speaker at the 36th annual Insurance Law Institute, Mediator & Arbitrator Jennifer Grippa shared four critical elements of professionalism for attorneys who want to achieve effective mediation outcomes.

Georgia Supreme Court Supreme
Court Code of Professional Responsibility:

(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution process.

1. Perspective

Good Faith

• Put aside stereotypes and prejudgments
• Own your risk
• Make a true effort to build trust with the other side
• Talk less and listen more
• Admit you can’t predict the outcome
• Remember your audience
• Do what you say you’re going to do
• Share damages documentation in advance
• Avoid retreating from pre-mediation offers
• Communicate non-starters in advance

 2. Preparation

• Prepare as you would for a hearing
• Know the facts
• Bring all documents
• Be prepared to discuss legal issues
• Bring your “smoking gun”
• Set reasonable expectations

3. Patience/Perseverance

• Refrain from acts of impatience
• Act as you would in court
• Set client expectations
• Explain that incremental progress is the norm
• It is not how the mediation starts, but how it is finished that matters

4. Partnership

• Partner with your mediator
• Be honest about client control issues
• Communicate specific expectations — let the mediator communicate those at the right time and in the best way
• Give your mediator due regard

Jennifer Grippa, Esq. is a mediator and arbitrator with Miles in Atlanta.  She has over 16 years of litigation experience, specializing in construction law. To schedule a mediation or arbitration with Jennifer, please call 678-320-9118 or visit her online calendar.

By David C. Nutter

“Why not Mr. Churchill?” An unthinkable question as late as 1935. Winston Churchill was a political pariah scorned by Liberal, Labor, and Conservative alike, the scapegoat of Gallipoli, a warmonger imperialist, out of step with the prevailing pacifist politicians, professoriate, and public. His repeated warnings about the Nazis menace and the threat to England herself were laughed to scorn.

But beginning with a Daily Mail article in May 1936, after German troops occupied the Rhineland, the question began to be asked, “Why not Mr. Churchill?” By the summer of 1939, as Churchill’s warnings came to full flower, the question “Why not Mr. Churchill?” became an avalanche of newspaper pleas, cartoons, and billboards crying out for Winston Churchill. Three hundred seventy-five professors and faculty members of every British university signed a letter calling for Churchill’s return to the government. It was evident that the very existence of England herself was in grave danger. If you watch the movie Dunkirk, you will see that it was only Providence and the pluck of the 700 “Little Ships of Dunkirk” that somehow held back Hitler from destroying the British and French armies. Churchill had been right for a decade. The British politicians and public were not ready to hear it until the threat was all too real and imminent.

There is an unfortunate truth about human nature in this sad saga that explains the two most common complaints heard about unsuccessful mediators. The problem with such mediators, we are told, is that:  (1) they just run numbers back and forth with no evaluative comments or (2) the mediator offended attorney or client or both with their comments. Of course, these criticisms are polar opposites. Somewhere in the middle is the happy medium of the insightful comment well-received.

While no doubt some mediators have a better bedside manner than others, I think the real question is timing. Successful mediators do need to deliver hard truths in a palatable form. But the real question is when. Until the audience is ready to hear the hard truth, however well presented, there is little value in sharing it, and indeed, it is sometimes harmful. If something is said too soon before a threat is seen or a risk is felt, it will have little force or effect. Like Churchill’s warnings in the early 1930’s, they will be ignored or scorned. Only when there is something tangible to be lost, will the message have real meaning. The difference between Churchill and a mediator is that Churchill had 10 years to allow events to catch up with his comments. Most mediators don’t have that much time.

So, all successful mediators do some numbers running. You have to in order to get the parties into a range of perceived risk. Better just to admit it when asked. “Why don’t you tell them about X, Y and Z,” an attorney might ask. “Well, I did say something about X, but why do you want me to say anything about Y and Z while we are 2 million dollars apart? They won’t listen right now and the moment will be lost. Why not move the numbers a bit and wait for a better moment?” This is doubly true in most cases because, unlike WWII, most lawsuits are not really a Manichean battle between light and darkness. There are usually some points on both sides. But when the time is right, and the trial looms, and the stakes are clear, and there is money to be lost, and both sides are feeling some risk, then a friendly but piercing question carries a power far greater than the words themselves.

In 1933, “Why not Mr. Churchill?” would have been a joke. In May 1940 when, as the BBC reported it, “His Majesty the King has sent for Mr. Winston Churchill and asked him to form a government,” it was a cry for a savior from a dying world.

Team Leader David Nutter has successfully mediated and arbitrated over 1,500 cases since joining Miles. His team specializes in complex business disputes, employment, corporate and partnership litigation and dissolutions, and banking and finance. To schedule a mediation or arbitration with Mr. Nutter please call 678-320-9118 or visit his online calendar.

Mediator & Arbitrator Roy Paul is a member of Team Cohen in our Savannah office. He is a highly regarded neutral, who is particuarly commended for his expertise in areas of business disputes, commerical, estate & probate, construction, and complex personal injury matters. Learn more about Roy’s desire to be a mediator, his approach, and interests outside of his legal practice.

What made you want to become a lawyer?

My father was a chemist who ultimately ran ATF’s crime laboratory in Atlanta. He spent a lot of time testifying in Court and I grew up hearing stories about trials and lawyers.

What are you most proud of on your resume?

There are a number of things that come to mind. I am proud to have clerked for Judge Dudley Bowen. He was a wonderful mentor and was very kind to me. I am proud to have practiced with very fine lawyers at both my former firm, Bouhan, Williams & Levy and my current firm, Bart, Meyer & Company. I am proud to have been recognized by my peers as having particular experience in Commercial Litigation.

Why did you become a mediator over 10 years ago?

As an attorney, I have always taken very seriously my role not just as an advocate, but as a counselor. If no other resolution is possible, trying a case is one way to reach resolution. At the same time, I have always tried realistically to assess risk for my clients and to try to guide them to an appropriate negotiated resolution if that were at all possible. Mediation allows me to continue to find creative ways to resolve cases prior to trial.

What is the value of Alternative Dispute Resolution?

Alternative Dispute Resolution allows the parties themselves to control the outcome. I always emphasize to the parties in a mediation that they have the opportunity in mediation to control their own destinies. If they fail to take advantage of that opportunity, there will be a resolution by judge or jury – it just may not be the resolution that they are expecting or will want.

What is the most challenging part of being a mediator?

Every case is different. Every mediation is like a puzzle with a different solution. The challenging part is to find the best approach in a particular case.

What is your mediation style/approach?

I try very hard to listen to both sides and to try to be creative. My approach is to try to be analytical so that both sides accurately can assess their risk.

How would you clients describe you?

My clients would probably describe me as logical and generally calm. You often have to try to get your clients past emotional aspects of a case so that they can make a rational decision.

If you had to identify a passion for some area of the law, what would it be?

While I have practiced in a number of areas through the years, my specialty has been commercial litigation. I enjoy figuring out complex cases and then trying to get the best possible result for my clients.

Where Did You Grow Up? 

I grew up in Dekalb County near Oglethorpe University

What’s your Favorite Book?

It is hard to pick one. I tend to read a lot of history and biographies. I like T. Harry Williams’ biography of Huey Long and am currently reading a biography of Paul McCartney.

What do you like to do in your spare time? How do you unwind?

Like a lot of lawyers, I don’t have much spare time. I like to read and I play guitar. I am trying to get back into running. For many years, I ran the Peachtree Road Race, but have let myself get out of shape.

Do you have a favorite quote?

“It is amazing what you can accomplish if you do not care who gets the credit” – Harry Truman

What movie or novel character do you most identify with?

When I am particularly stressed out at work I identify with Bill Murray in Groundhog Day. 

What characteristic do you most admire in others?

I admire people who are kind, particularly when it is difficult under the circumstances.

What super power would you like to have?

As a very slow runner, it would be interesting to be really fast for a change.

If you could have dinner with anyone who would it be and why?

Thomas Jefferson. I actually read Dumas Malone’s multi-volume biography of Jefferson.  Jefferson was
interested in everything. It would be fun to explore with him what has happened with the country he helped found and to discuss modern transportation, technology etc.

To learn more about Roy, click here.

To book Roy for a mediation or arbitration, please call 912-417-2879 or click here.

Team Leader/Mediator Joe Murphey has mediated several high-stakes mediations in Savannah over the past year and is slated to mediate at our Coastal office for the entire month of October (2017). Joe’s affinity for Savannah and the Georgia Coast is well-established, and we’re excited for him to do what he loves in his favorite city. Joe will still be available in Atlanta and other areas of the state, as needed, so if there’s a case in need of resolution outside of Savannah, you may call his Case Manager Jocelyn Parfaite (678-320-9118) or schedule online.

Joe recounts his love for Savannah and Coastal Georgia:

“It was a sunny summer day in 1989.  My fiancé (now wife) Susan and I were riding high.  We’d just graduated from Emory Law School, passed the bar, and, more importantly, had jobs.  This all happened in the span of May.  Before the grind of work commenced, we slipped away to Tybee Island for one last get away. And we fell in love.  Not just with each other (that was already a thing) but with Savannah and Tybee.  It was a fantastic week of fun and sun, and as we stood on the beach on our final night, watching the sun set, we vowed we’d come back some day to stay.

That was nearly 30 years ago, but Susan and I have never forgotten that week at Tybee, or our vow to return.  And we have returned.  Over the years we’ve rented houses and condos at the beach up and down the Georgia and Florida coasts — Atlantic side and Gulf — but we always end up returning to Tybee.  The place, and her people, are just the best. 

Work, and the work of raising kids, has kept us tied to the ATL for the past few decades, but the nest is now empty.  With more time on my hands, and a Miles Mediation office in Savannah, it’s time to fulfill the vow to return.  Susan and I booked a rental on Tybee for the entire month of October.  If she finds she can run her law practice from the deck of a Tybee condo, and I can score a few Savannah mediations, we’re one step closer to the goal….”   -Joe Murphey 

Click here to view Joe’s bio and online calendar for easy scheduling.

by Wendy Williamson, Esq.

I have trained hundreds of non-lawyers in civil mediation and participants frequently tell me that they wish they had trained earlier. I encourage you to complete mediation training sooner rather than later for the following reasons:

1. To Minimize Attorneys in your Lives. Hiring an attorney to fix a dispute is like using money for home repairs rather than home improvements. Minimizing disputes allows you to hire attorneys for growth rather than damage control.  No matter your occupation, if you interact with people, your peace and success will depend upon your communication skills and your ability to manage difficult conversations effectively and efficiently.  Mediation training uses current research, hands-on exercises and role plays to exercise communication skills, to develop the ability to manage conflict and to build solutions through team work and agreement. Developing mediation skills enables you to spend your precious time, energy and resources on making a better life, business or relationship.

2. To Manage your Stress Level. We live in very stressful times. Stress impacts on our ability to listen, think clearly and communicate effectively. In mediation training, we learn to create safe spaces where people can listen and reason. We learn how impactful location, timing, planning and written details can be on our productivity and success. We study how people think and make decisions, how to effectively be agents of reality, how to respectfully deal with emotions and expectations, how to manage our own emotions, how to practice active listening to avoid misunderstandings and develop trust and critical knowledge. The greatest threats to working relationships are miscommunication, unrealistic or unmet expectations and the perception of disrespect. The skills honed and practiced in mediator training will help you avoid these pitfalls and the resulting stress.

3. A Proven Communication Weapon for a New World. Someone posts on Facebook, co-workers communicate by email copying “up the chain,” bosses text liberally at all hours or we join a conference call with faceless people from around the world. We can no longer rely upon workplace conversations taking place face-to-face or even at the workplace. How do we manage this communication blob? Strategically. Purposefully. Carefully. In mediation training, we learn to structure communication so that people can be heard and understood. We practice skills such as reframing, restating and brainstorming which compensate for the dangers inherent in conversations laden with opinions. Mediation is designed to bring back civil conversations in a world leaning toward voice-to-voice combat.

4. Life Management. If you are like me, you find yourself having more difficult conversations in your daily life outside of work. Have you had a discussion about national politics or the Affordable Care Act lately? Whether we are in parent-teacher conferences, at our bank or dealing with co-workers, we have an increasing need to manage conversations wisely and productively. Mediation training is an invaluable life skill.

I hope I have the privilege to train you in the life skills of negotiation and mediation. Please join a class by registering here.

Wendy Williamson, Esq. is a mediator and instructor with Miles in Savannah and Atlanta.  She has over 20 years of mediation experience and is widely considered one of the top mediation trainers in Georgia.  To schedule a mediation with Wendy, please call 678-320-9118 or visit her online calendar.

DATE: August 22 , 2017
TIME: 12 p.m.- 1 p.m.
LOCATION: Coastal State Bar of Georgia Office
18 E. Bay St. Savannah, Georgia 31401

Join Team Leader/Mediator Joe Murphey for a free Lunch & Learn on mediation tips and strategies, seen through the lens of the infamous 1978 Gator Bowl, in which Coach Woody Hayes ended his career by punching opposing player, Charlie Bauman. This CLE is approved by the State Bar of Georgia for (1) hour of regular credit and (1) hour of ethics credit.

*CLE also available via webinar. Click here to register. 

*Excerpt from Joe’s presentation: 

The Fragility of a Good Professional Reputation Negotiation at mediation can be stressful, especially if the other side is acting in what you deem to be bad faith.  The combination of bad behavior from the opposition and growing client frustration and disappointment can boil over.  This is particularly true if the mediator is not effectively cooling things down.  Don’t be the lawyer whose long-established and well-earned reputation is sullied by a momentary outburst.  Don’t punch Charlie Bauman.  Take a deep breath.  Gather yourself together.  And make a counteroffer.*

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Mediator & Arbitrator Jim Anderson recently joined Miles in Atlanta. As a member of Team Wilson, Jim mediates primarily in areas of aviation, construction law, property damage, personal injury, contract law, estate, probate, and domestic relations. In addition to Jim’s law and ADR practices, he has logged thousands of miles as an experienced aviator. And as if flying national and international flights isn’t impressive enough, Jim is building an FAA-approved four-passenger airplane. Learn more about Jim’s fascinating pursuits below.
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by Wayne Wilson, Esq.

Miles Mediation & Arbitration has handled a wide array of premises liability cases.  And with good reason.  A premises liability case is probably more suited for the mediation process than any other personal injury claim.  Mediation is all about the elimination of risk for all parties concerned.  And there can be no doubt that premises cases carry the greatest risks for plaintiffs and defendants alike.

Whether the property involved is a personal residence, a commercial property or public property the liability issues of negligence, knowledge, comparative/contributory negligence, assumption of risk, apportionment, etc. almost always come into play. Ordinarily, it is the property owner who is the defendant in a premises liability case.  However, both commercial and residential property owners often lease all or part of their property to tenants, who may have responsibility, by the terms of a lease or otherwise, for property maintenance.  Contractors working on, or who have worked on, the property involved may have responsibility for premises accidents. Management companies are often additional parties, as well as vendors making deliveries of products to stores. All of these entities face exposure for creating or allowing conditions to exist that might result in potential liability for the parties as well.

Add to the equation the likelihood that you have a “target/deep-pocket defendant” that might be loved, or loathed, by the general public, and the concept of “risk” creates dark shadows of uncertainty.

As an attorney or claims specialist, you deal with the many issues present in a premises liability case on a daily basis. These matters become somewhat common place as just part of your daily routine. You have the luxury of “time” to sit down, study, discuss, and work through the issues in order to arrive at a proper decision. But what of a lay person on a jury being asked to deal with all of these legal and factual issues in the heat of battle, commonly known as a jury trial? It is no wonder that perhaps no other type of case involves more jury verdict uncertainty, for plaintiffs, defendants and insurers alike, than premises liability matters.

Does anyone really want to place the decision regarding responsibility in these confusing situations in the hands of 12 strangers?  If the answer to that question is “No”, then the mediation process wherein the parties with the greatest knowledge, interest, exposure, and fear have total control over the decision-making process is by far the best and most viable alternative for resolving the dispute in a timely and cost-efficient manner.

So why mediate the premises liability case at Miles Mediation?

Experience

The panel at Mile has mediators with many years of experience in dealing with premises liability mattrs, both as litigators and mediators. As litigators, we have had the “privilege” of great successes and “not-so great” defeats at the hands of juries. We have won cases we should have lost, and lost cases we should have won. And we have experience in matters (having either litigated cases of this nature and/or mediated such cases) including, but not limited to, the following:

• Slip/Trip & Fall – defective surfaces or foreign objects
• Defective stairways/steps/pavement
• Parking lots (uneven/pot holes/signage) 
• Deck collapses
• Inadequate warning
• Snow and ice
• Swimming pools
• Elevators/Escalators
• Store displays/falling objects
• Inadequate lighting
• Inadequate hand-rails
• Inadequate Security – nightclubs, bars, etc.
• False arrest/imprisonment/malicious prosecution cases
• Construction accidents
• Physical assault, including sexual assault.
• Hotel/Motels
• Restaurants
• Churches
• Major shopping malls, and stores w/in the mall
• Nursing homes
• Schools
• Public property (streets, sidewalks, government buildings, etc.)
• Private residences

Privacy/Confidentiality/Finality

For many parties, an important advantage of mediation is the private resolution of their dispute.  This is often the case where the reputation of the parties involved, whether a business which wants to protect its good name, or a plaintiff who might prefer to keep his or her name private due to the personal nature of an event.  A related concern of some parties may be avoiding a reported decision where an adverse precedent would encourage the filing of additional cases against the defendant or create “bad law” for a plaintiff’s position.

Convenience- Eliminate Unecessary Time and Expense

The trial of a case is never at the convenience of the parties.  It is at the convenience of the judge.  Mediation provides the parties with the element of control.  The time, manner and method of the process is within the control of the parties. This is a factor that can be very important for a plaintiff who is unfamiliar with the litigation process and sees it as his enemy rather than his friend. It is difficult having to deal with the personal issues involving the event – it can be even more onerous having to deal with the world of litigation in which he now finds himself. 

For the Plaintiff – “Why has it taken me three years to get the case to trial?” For the Defendant – “I have a business to run.” For a witness – “This is not my fight. I don’t have time for this.” For everyone – “The costs are ridiculous.  The only people who win in this game are the attorneys, and I don’t like attorneys.”

Eliminate Uncetainty and Risk

The elimination of uncertainty/risk is the most important factor in mediating a premises liability case.  No other type of case involves more jury verdict uncertainty for plaintiffs, defendants, and insurers, than premises liability matters.  It is only at Mediation that the parties can study their relative positions as to liability and damages through a lens of compromise and eliminate any uncertainty and risk of an unfavorable jury verdict.

Sally Akins was recently was recently installed as President of GDLA during the 50th Annual Meeting, held June 15-18 at the Breakers in Palm Beach, FL.

“I am incredibly honored and humbled to serve as the President of the Georgia Defense Lawyers Association. GDLA is comprised of the very best civil defense lawyers in the state of Georgia. I am looking forward to an outstanding year as GDLA celebrates its 50th anniversary and reflects on all of our wonderfully talented past leaders who formed the organization and helped make GDLA what it is today.” said Akins.

Akins is based in our Savannah office and mediates and arbitrates in Atlanta and out-of-state, upon request. Sally handles complex cases in areas of Premises Liability; Automobile and Trucking; Professional Negligence (medical, legal and pharmaceutical); Litigation involving counties and municipalities, including Civil Rights cases and Zoning cases; Insurance Coverage Litigation and Products Liability. Furthermore, she is accustomed to handling significant 6- and 7-figure settlements.

To learn more about Sally Akins, click here. 

Miles is pleased to announce the addition of Mediator Roy Paul. He is based in our Savannah office and is the newest member of Team Leader Danny Cohen’s group.

Roy has served as a mediator for more than a decade and handles primarily business dissolution and business disputes, as well as estate & probate, construction, and personal injury matters. He is also a registered arbitrator.

“Roy has been a well-respected  litigator in the Coastal Empire for over 30 years,” said Team Leader Danny Cohen. “For the last decade, he has married his litigation practice with a successful mediation practice.  Roy certainly understands the litigation process, but undoubtedly his expertise in the area of complex  business disputes and in the  contested estate and probate arena make him a perfect fit for the Miles- Savannah office.  We are so pleased to have him on board, giving the Coastal office more options in the alternative dispute resolution area.”

To learn more about Roy, click here.

To book Roy for a mediation or arbitration, please call 912-417-2879 or click here.

by Cliff Cobb, Esq.

I have participated in numerous mediations in my 30 plus years of law practice on both defense and plaintiff sides. The current attorney case load has become a challenge to case management and moving cases toward trial or settlement as soon as possible.  More emphasis has been placed on trying to resolve cases as early as possible.  Most cases settle prior to trial and at mediation as it has become the most effective and efficient method of resolving a case.

As a mediator, I reflect on my experiences from a different view, but with the purpose of maximizing the settlement potential.  The probability of a successful mediation outcome can be increased significantly with each party being fully prepared, viewing the case from the other party’ viewpoint, and being flexible in creating different potential settlement outcomes.  Reliance on the mediator to guide the process is important.  The absence of any one of these can prevent a settlement.

PREPARATION FOR MEDIATION

Mediation preparation requires that you not only know your case and have all necessary documents to support your position, but to also know the other party’ case and evidence to support their case.  Preparation for mediation should be treated similarly as trial preparation in proof of your case.  It is expected that each side has fully investigated the case and conducted sufficient discovery regardless of whether the case is in litigation.  The more information shared prior to mediation the better the probability for a successful mediation.  A case can be derailed before the mediation begins in the absence of complete information.  Also, a case can only be evaluated properly by the other side with the information provided.  “Last minute” information will not allow sufficient time for each side to evaluate for mediation.  This is especially true in the corporate and insurance arenas which can involve different management levels, depending on the size of the claim made, to provide the appropriate settlement authority.  In a personal injury case, that means having all medical records and evidence of lost income and any permanency of injury.  This affects both areas of special and general damage claims.  Experts are often relied upon to provide much of this information.  Expert information is normally found, on the issues of liability and damages, in the police or accident/incident report and medical records/bills. It is also important to have medical opinions on causation and specific medical/scientific information to “link up” or refute the relationship to the claim if causation is an issue.  While these statements seem self-evident, the required information is absent in many cases presented at mediation.  Lien information (Medicare, subrogation & ERISA issues) and litigation case loan funding to be repaid is important to know as it affects the case settlement potential.

Preparedness also means having all stakeholders present.  This means plaintiff, defendant, party representatives, and insurers (liability, UM, excess/umbrella).  Identification of all insurers and any insurance coverage issue is critical.  Other persons of influence that are not stakeholders should not be included in the mediation process (e.g., the family member, pastor, or friend).  These can only be detractors from the mediation process. 

Preparedness also means preparation of your client(s) before mediation.  This includes a full discussion of the case, damages, and evaluation; mediation strategy and discussion of the opposing party’s case.  It is helpful to have a brief discussion with the mediator before the mediation date to include information intended to be provided at mediation and any pre-mediation demand and offer.  This helps the mediator develop a “blueprint” of how best to proceed with a mediation.  Any pre-mediation demand letter from plaintiff and offer from defendant should be reasonably related to the claimed damages and include exhibits referenced to highlight and support the claim.  The mediation can be affected when the pre-mediation demand or offer amount are not supported by the case facts.  It is also crucial not to increase the plaintiff’s pre-mediation demand or decrease the defendant’s pre-mediation offer without a change in underlying facts of the case.

OPENING STATEMENT IMPACT ON MEDIATION SUCCESS

Case information should be fully presented at the beginning of the mediation in the opening statement phase when in joint session.  The case outline of each party must include all claims made and essentially provide the same information as would be given on the witness stand at trial. This often allows for a party to vent and allows the focus to be on a party without distraction.  Some attorneys believe an abbreviated or summary opening statement is sufficient.  This approach can be counter-productive and result in the suppression of important information that the other party may need.  An opening statement also allows an attorney to show some of their trial skills.  Allowing the plaintiff to speak is another important part of the opening statement phase.  Hearing and seeing the plaintiff and how the accident affected him/her in the past, present, and potentially future, including any lost work opportunities or activity restriction, is part of the evaluation process needed to be presented early in the mediation process.  Disclosure of pre-existing conditions is important even if not directly involved in the claim.  This creates an atmosphere of “full disclosure” and credibility.  All information is especially needed for the liability insurance adjuster.  Conversely, the insurance adjuster should speak to show empathy and the committed attitude to the mediation process.  Other topics for the opening statement should include identifying any apportionment and indemnity issues, the potential for summary judgment, discussing venue, potential juror evaluation/bias, and judge assigned to the case.  The result is making an appearance of “trial readiness”, but with a mediation “mind set”.

VIEW FROM THE OTHER SIDE

Each party should view the case from the other party’ perspective.  The mediator can assist with evaluating the case information when in private caucus.  This often involves answering the questions of what a jury would do with the information provided and how 12 people compromise to reach a verdict.  The “mind set” at mediation is different than at trial.  Attorney advocacy “mind set” transitions into counselor “mind set” during mediation.  The client’s “mind set” must be controlled with assistance from attorney.  Forget hardened positions, flexibility and a rational “mind set” is required. This includes a compromise mentality with a reasonable settlement attitude, and patience in the mediation process.

MAXIMIZING THE BENEFIT OF THE MEDIATOR

Maximizing the benefit of a mediator begins with the tone of mediation.  Each party must exercise the utmost professionalism at all times during the mediation.  The advocacy mentality and language used must remain non-insulting or include any challenging behavior.  The order of the day is for courtesy, politeness, and respect for and by each side during any joint conference.  This allows for the crucial transition of position from “advocate” to “counselor” by counsel for each party during the mediation process.

The mediator’s role is crucial to a successful mediation.  The mediator will provide a “welcoming mentality” to all.  While the comments of a mediator in the opening session are for all, they are normally directed toward the plaintiff and other persons who have not previously participated in a mediation.  The mediation process will normally emphasize to the parties that the litigation process is on hold, benefits of mediation versus trial, control and finality of outcome with removal of doubt on trial outcome, cost and time savings, confidentiality, monetary value/exposure, and relationship preservation as applicable.  The mediator will collaborate with the parties individually to evaluate plaintiff/defendant type bias.  The various party type bias includes whether the case involves an individual or corporation (cab or trucking company, premises owner), pedestrian, vehicle driver, motorcyclist, race and gender type, physical qualities (obese, attractive), and youth.

The individual private caucus sessions allow the mediator to identify the information that can be shared with the opposing party as confidentiality is always of utmost interest and concern.  The mediator will recommend information to share with opposing party.  “Reality” testing for each side that is open-ended and non-judgmental is a crucial part in individual caucus sessions.  This includes a discussion of the strengths and weaknesses to each party’ case to evaluate risks associated with each case.  Discussion of opposing party’ expectation with the other party and reasoning for the expectation is helpful to discuss and evaluate the impact of the opposing party case.  This may include a discussion of a potential jury outcome if this case were tried a certain number of times.  The mediator will assist the parties in thinking/developing creative solutions for mutual gain.  Identifying costs of trial versus mediation resolution and attorney fee difference in demand and offer are important considerations.  Other important points of mediation are to trust the mediator to know if mediation should continue or end, allow time for each party to evaluate all shared information, and identify a potential settlement opportunity during the mediation process by being prepared to accept an offer which makes sense for your client.

Last, the mediator role of facilitating/assisting parties is to develop their resolution outcome.  The mediator experience as an attorney can be used as a resource by parties and serve in assisting each party with a case evaluation and negotiation strategy.  Understanding that no legal or financial advice is provided, the mediator’s role is to have empathy with each party and to build trust.  This includes identifying and discussing the needs and interests of each party in settlement and to reveal any party agenda that could affect the potential for a mediation settlement.  The emphasis is on interests versus positions of the parties, needs versus wants associated with party positions, tangible-dollars and/or property interest, and perception of fairness in the mediation process.  There are many mediation tools to know that may be used including (1) hard numbers exchanged separately or in combination with a bracket, (2) bracketing-traditional and reverse, (3) meeting with only the attorneys, and (4) a mediator number (silver bullet).

MEMORANDUM OF SETTLEMENT TERMS TO AVOID POST MEDIATION DISPUTE

Terms of settlement are included in a mediation settlement memorandum.  This process cannot be taken lightly or as routine, as problems can later develop in agreeing to certain language within the settlement documents (e.g., release, lien affidavit) drafted by the attorneys from the mediation settlement memorandum.  Specificity of settlement terms in the mediation settlement memorandum is needed and should identify all material terms from the case settlement.  This includes naming all parties to the settlement, non-monetary terms (e.g., adoption of new policies, taking or refraining from certain future conduct or action, written or oral private or public apology, placement of warning signs in a premises case), monetary terms of amount to be paid  including when paid, and the paying party and to whom paid; lump sum and/or structured settlement payment(s), apportionment issues resolved, claims released and those claims preserved (e.g., tort and worker compensation cases from same incident; non-parties), mutual release of claims as applicable, indemnification by plaintiff to defendant(s), mediation costs shared or paid by one party, attorney fees, confidentiality terms applicable, medical and insurer lien responsibility, and the timing of filing the dismissal.  Last, the cooperation of all parties to settlement document implementation must be included.

PARTY INVOLVEMENT AFTER MEDIATION

Mediation doesn’t end at the mediation table, but includes mediator/party attorney contact after mediation.  For a settled case the mediator will want to have an objective review of mediation process—reflection with comments and client input/comments—(favorable and unfavorable).  For an unsettled case, there should be an exit strategy developed by each side.  Don’t be discouraged if the case doesn’t resolve at mediation.  There should be mediator/party involvement that continues the mediation process with specific interest in discussing new information expected which can be shared with all.  The point is to continue efforts as case information normally does change.

SUCCESS AT MEDIATION INVOLVES ALL PARTIES

Mediation cannot be taken lightly or regarded as a routine matter by placing heavy reliance solely on the mediator.  Mediation takes commitment by all parties.  Mediation should only be used after the case has been fully investigated by all parties and after a fair exchange of information for each party’s case. Merely filing a lawsuit or making a time limited demand and then setting the case for mediation does not increase the probability of a successful mediation.  Mediation is a “mind set” which depends on not having hardened positions.  Party negotiating must be with the “mind set” focused on the potential gain and achievement and not on what you might lose or give up.  Outcomes must be beneficial to all parties recognizing that each party does not prioritize every issue the same way. This recognizes that money is not the only benefit of a successful mediation, but also includes the benefits of finality, cost, control of outcome, and respect.  Respect is shown in a successful mediation by each side having acknowledged and understood each party’ point of view and having negotiated in good faith during the entire process.  An understanding and appreciation for the many moving parts in the mediation process and each party role will result in a higher probability for a successful mediation.

Cliff Cobb, Esq. is a mediatorAtlanta.  He mediates commercial, personal injury, premises liability, product liability, auto and trucking accidents, and workers compensation disputes.  To schedule a mediation with Cliff, please call 678-320-9118 or visit his online calendar.

What made you want to become a lawyer?
I have always enjoyed problem solving.  From an early age, I would take things apart and put them back together, such as our family computer.  That curiosity fueled a need to learn how things worked, and how to come up with ways to fix things when they did not work.

After college, I was fortunate enough to get a job tasked with developing software for a company’s internal use.  The same concepts applied – take apart what was there and improve it as it was put back together.
I viewed becoming a lawyer in much the same way.  I could help people by taking apart their situations or problems, and finding solutions that add value.  I enjoy contributing to solutions, which, in turn, means I enjoy helping people.

What is your area of expertise?
I am a business lawyer.  Throughout my career, I have assisted businesses in various ways, whether through ongoing business advice or through advocating in various forms of litigation.  I enjoy contract law, which is the lifeblood of business dealings.

What are you most proud of on your resume?
I really do not have a good answer for this question.  I look at my resume as a whole, as opposed to separate parts.  Each of the experiences contributed to who and what I am today.   Overall, I am proud of my client’s achievements, as opposed to items on my resume.  I am most proud of the fact that many of my clients view me as a valued advisor to their businesses, knowing that I am truly a part of their team.

Why did you become a mediator?
Through my litigation experience, I have seen the disruption litigation causes to businesses, distracting them from what they do best.  As an advocate, I learned to appreciate the strengths and weaknesses of both sides of each dispute.  I became a mediator to assist in finding solutions to business disputes, to help minimize this disruption.  The best resolutions most often occur when they are not provided by the judge or jury, and I enjoy helping parties and their counsel find those solutions.

What is the value of Alternative Dispute Resolution?
Only what the litigants are willing to put into it.  ADR can provide litigants an opportunity to streamline their disputes.  If they come to mediation with an interest in resolving their case, mediation can offer them the opportunity to craft a resolution that would not likely be able to be done through the courts.  Moreover, a mediated resolution provides the parties the ability to control their outcome, as opposed to “taking their chances” with a judge or jury.  Arbitration provides an opportunity to minimize the public eye on disputes, and provides litigants a means and a forum to have a decision maker that has knowledge and experience in the area of law pertinent to their dispute.  Arbitration also provides a litigation format that is aimed at efficiency.

What is the most challenging part of being a mediator?
Helping come up with solutions that may not have been considered prior to mediation.

What is your mediation style/approach?
I look to facilitate solutions through understanding and applied problem solving.  I want to understand the parties’ respective positions, what they have already done to try to resolve the dispute, and what they are trying to accomplish.  I will then work to help remove the parties from the battlefield mentality so that they can hammer out the details of a deal that will allow them to get back to business.

Where did you grow up?
I grew up in Sharpsville, Pennsylvania.  Sharpsville is a small town sitting on the Ohio boarder in Western Pennsylvania about halfway between Pittsburgh and Lake Erie.

What’s your favorite book?
I enjoy reading to learn something new, but also enjoy an occasional fiction.  I have many favorites, but the one that came to mind first is One Second After by William R. Forstchen.

What do you like to do in your spare time? How do you unwind?
I enjoy spending time with my family.  My wife and I are the proud parents of two little boys, ages 7 and 9, and our household is very active.  When not working, we are usually running around from soccer, to Cub Scouts, to swim team, etc.  Having the opportunity to be a part of their lives is the most rewarding part of mine.

Do you have a favorite quote?
I had a hard time picking between three of my favorites, so I provide three in response to a request for a favorite:
1.   “Everything is figureoutable.” – Marie Forleo

2.   “Start by doing what is necessary; then do what’s possible; and suddenly you are doing the impossible.” – Francis of Assisi

3.   “Be sure to put your feet in the right place, then stand firm.” Abraham Lincoln

What’s something your clients wouldn’t expect of you? 
I played the part of King Herod in my college’s production of Jesus Christ Superstar.

What movie or novel character do you most identify with?
This is “somewhat” aspirational.  I identify with the determination of Maximus from Gladiator, the loyalty of Chewbacca from Star Wars, and the adventurous intellectualism of Indiana Jones.

What characteristic do you most admire in others?
Perseverance

If you could have dinner with anyone living who would it be and why?
My dad, Robert Thiry.  My parents and grandparents are my foundation.  I have learned so much from my dad, and continue to learn from him all of the time.  Over the years, he has given me so much to look up to and be proud of.  We speak very regularly, but, because we live so far apart, we see each other infrequently.

John Miles recently presented at the Litigation Management College at Emory Conference Center. The seminar was put on by the Federation of Defense and Corporate Counsel (FDCC). John spoke to a packed auditorium on “Successful Mediation: Tips & Techniques.” In addition to his presentation, John participated in mock mediations with the seminar participants.

When asked about his involvement in the seminar, John said, “I enjoyed presenting about mediation at the FDCC Litigation Management College. I always learn something new from the excellent faculty which this year included Matthew Moffett and Michael Schroeder. I hope the students walked away with an appreciation with how to effectively communicate with the opposite side at mediation.”

This year’s seminar included an impressive group of faculty–from Atlanta-based attorneys to distinguished national speakers.

For more information about FDCC Litigation Management College, click here.

We are proud to announce that Miles was voted the #1 Alternative Dispute Resolution (ADR) Firm by Daily Report’s Best Of Survey for the fourth year in a row. The Daily Report’s Best Of Survey is a compilation of Georgia lawyers picks for the best legal services and products. Voting was conducted online and garnered several thousand responses. The Daily Report is the foremost publication for Georgia’s entire legal community.

Miles founder John Miles said, “I’m deeply honored that Miles has once again been voted the number one ADR firm in Georgia for the fourth year in a row. We work very hard to earn the trust and respect of the legal community and it’s gratifying to be recognized as the best by our peers.”

In the same survey, Team Leader Greg Parent was voted the No.1 Mediator in Georgia for the second year in a row, and John Miles was voted the No. 3 Mediator. This is the second consecutive year John Miles was voted among the Top 3 mediators in the state.

Team Leader Greg Parent said, “It’s great to be part of an A+ organization whose sole focus is providing the best mediation and arbitration services we can to our valued customers. It is wonderful to be recognized as the top firm in that field for four straight years.”

For more information and to see a list of this year’s complete results, click here.

Team Leader Greg Parent was voted the No.1 Mediator in Daily Report’s 2017 Best Of Survey for the second year in a row. The Daily Report’s Best Of Survey is a compilation of Georgia lawyers picks for the best legal services and products. Voting was conducted online and garnered several thousand responses. The Daily Report is the foremost publication for Georgia’s legal community.

“I continue to be amazed by Greg’s commitment to his craft,” said John Miles. “He works hard to be the best, and I’m pleased he has once again been selected as the best mediator in the state.”
Greg joined Miles in 2012 and quickly ascended to the level of Team Leader. He mediates and arbitrates cases involving high-end personal injury, premises liability, trucking liability, toxic torts and employment. He also manages a team of seven neutrals who specialize in mediation, arbitration and special master services.

Regarding his award, Greg said, “I am honored to be recognized by my peers as being the best while doing something that I love and work so hard to improve and study each and every day. It is humbling and something I share with everyone at Miles Mediation because I believe it is our shared brand of excellence that makes my successes possible.”

Miles Mediation & Arbitration Services was voted the Best ADR Firm for the fourth consecutive year in the Daily Report Best Of Survey. Founder John Miles was voted the No. 3 Mediator in the same survey. This is the second consecutive year John Miles was voted among the Top 3 mediators in the state.

To view the complete 2017 Daily Report Survey results, click here.

Miles is pleased to announce the addition of Matthew Thiry, Esq. to Team Nutter in Atlanta. Matt is a registered mediator and arbitrator with significant commercial litigation experience. At Miles, he will mediate and arbitrate disputes in the areas of business, ficuiary, real estate and probate. He will continue to maintain his law practice, Matt Thiry Law, LLC.

“I am delighted that Matt has joined our team. Matt brings many years of commercial litigation to the mediation process with the understanding of what it takes to push a case through to compromise,” said Team Leader David Nutter.

Matt graduated from Michigan State University College of Law in 2004. He has received an AV® Preeminent™ rating from Martindale Hubbell, and on multiple occasions he has been selected by other lawyers and by Georgia Trend magazine to be included in the list of “Legal Elite.” He has also been selected on multiple occasions by other lawyers and Georgia Super Lawyers magazine as a “Rising Star” in the list of Georgia Super Lawyers. Matt is a member of The Lawyers Club of Atlanta, the State Bars of Georgia and Pennsylvania, and The Atlanta Bar Association.

“It is truly an honor to join Miles Mediation & Arbitration Services,” said Thiry. “Not only have I been provided the opportunity to be a part of an award-winning ADR provider, I have been provided the privilege to be a part of a well-known and respected team led by David Nutter.”

To learn more about Matt, click here.

To schedule a mediation or arbitration with Matt, click here.

Mediator Parag Shah was recently recognized as a 2017 Rising Star by the Georgia Asian Pacific American Bar Association (GAPABA). He accepted the award at GAPABA’s Annual Gala, held at Fernbank on May 27, 2017 .

Parag is member of Team Forsling at Miles and mediates primarily personal injury cases. In addition to his mediation practice, Parag also manages his own law firm: The Shah Firm, where he specializes in personal injury and criminal defense. Furthermore, he has served as a Pro Hac Judge to the City of Atlanta Municipal Court since his appointment by Mayor Kasim Reed in 2016.

Parag is also serves as an adjunct professor at Ohio Northern University Law School where he teaches jury selection and cross-examination. He is also a faculty member for the Bill Daniel Trial Advocacy Program. Additionally, he oversees a criminal defense externship program through John Marshall Law School in Atlanta.

Parag has been acknowledged as Georgia’s Top 40 Under 40 by the Daily Report, a “Rising Star” by Super Lawyers Magazine & Georgia Trend Magazine. In 2011, he was featured as an expert in criminal defense on NPR‘s “This American Life”, Episode 430 – Very Tough Love. In addition, Shah regularly provided legal commentary on CNN’s Nancy Grace.

He is the author of three Georgia pocketbooks: The Code Criminal, The Code Civil and The Code Evidence. The Code is currently published by the Institute of Continuing Legal Education in Georgia.  In November 2017, Parag is planning to debut a new series of “How To” books and a book on mediation best practices.

To learn more about Parag and to view his calendar, click here. 

We are proud to announce the addition of James M. Anderson to Team Wilson in Atlanta.  Jim is a registered mediator and arbitrator with extensive experience in areas of aviation, construction law, property damage, personal injury, contract law, estate, probate, domestic relations.

“Jim brings a wealth of experience to Miles Mediation as a litigator, judge, and mediator with over 35 years of experience. He’s a man of character, integrity, empathy, and understanding of complex issues who has the ability to assist parties in reaching resolutions of disputes in an amicable fashion. His expertise in construction law, contract disputes, personal injury claims, probate,  and domestic relations matters will serve his clients well,” said Team Leader Wayne Wilson.

Jim has served as a Municipal Court Judge in Sandy Springs (2005-2014); a Magistrate Judge in Fulton County (2010-2015); and has currently served as a Municipal Court Judge in Norcross since 2015. He served as President of the Georgia Council of Municipal Court Judges from 2013-2014 and has served as a Chairman of the Georgia Board of Court Reporting since 2013. He is also a frequent lecturer for Municipal and Magistrate Court Judges Continuing Judicial Education.

Jim has served as a registered mediator since 2009 and certified civil arbitrator in Fulton County since 1986. He received his Juris Doctorate cum laude from the University of Georgia School of Law in 1980 and his Bachelor of Science in General Management from Georgia Institute of Technology in 1974.

To learn more about Jim, click here.

To schedule a mediation or arbitration with Jim, click here.

We are proud to announce that Miles won the “Legal Organization-Total Pounds” category in this year’s Georgia Legal Food Frenzy. We finished the competition with 54,074 total pounds, the most computed pounds (including bonuses) of any legal organization.

In total, we raised $10,655 and 146 pounds of food for the Atlanta Community Food Bank and America’s Second Harvest of Coastal Georgia. Our contributions helped the Georgia Association of Food Banks to raise a record-breaking 1.34 million pounds statewide. This record is a tremendous accomplishment that will have a real impact on the children and hardworking families served by state food banks every day.

Attorney General Carr will recognize Miles and other winners at the Annual Bar Meeting on Jekyll Island- Friday, June 9 from 9 a.m.- 12 p.m.

For more information about the competition’s final results, click here. To learn more about the Georgia Food Bank Association, click here.