Miles Mediation & Arbitration Services

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April 6, 2016 No Comments

By Lynn Roberson

Lynn Roberson

Lynn Roberson, Esq.

 

After 36 years as a litigator (and counsel for many parties in mediations, as well as a mediator myself) I have put on my neutral hat as a full-time mediator at Miles Mediation.  During those 36 years, I represented both plaintiffs and defendants, but I spent most of the past 20 years as defense counsel for defendants in personal injury cases, particularly in premises liability matters involving serious injury and arising out of violent crime.  As I seek to provide effective service as a mediator in personal injury cases at Miles Mediation, I am sometimes asked why plaintiffs would agree to use my services given my extensive background doing defense work.

During the time I represented defendants in personal injury matters in mediation, I would frequently ask the plaintiff’s counsel whom they would prefer to use as a mediator because it was my strong belief that, in order for a mediation to be successful, the party plaintiff needed to have some trust in the process, and feels he or she was being heard by the neutral.  In addition, I felt that the plaintiff’s counsel would be more receptive to the defense arguments when presented by a mediator with whom the lawyer had a rapport and mutual respect.  I found over many years that this approach to mediation was more likely to lead to mutually satisfactory results.

Given the above considerations, plaintiffs counsel would be wise to consider the rapport and credibility of the mediator when addressing the folks in the defense room.  A seasoned defense lawyer has a good deal of experience talking with and advising insurance adjusters and their supervisors, as well as risk management people with self-insured companies.  A good mediator has to do “reality testing” in both the plaintiff’s room and the defense room to persuade both parties to reach a reasonable resolution.  If the defense attorney and the adjuster believe the mediator fully appreciates their concerns, and they respect the professional credentials of the mediator, the mediator is more likely to be effective in communicating the plaintiff’s arguments to the defense.

Also, an experienced defense attorney will have a great deal of experience in evaluating cases for defense clients and advising them on the value of a claim or suit.  Such a lawyer is very familiar with the lawyers, judges and jury pools in the jurisdiction where the case is filed (or likely to be filed) as these factors can impact the settlement value of a case.  A case venued in certain urban jurisdictions may have a very different value for settlement than that same case filed in a remote area.  Where the jury pools are heavily weighted with generous, liberal jurors, your mediator needs to understand that circumstance the same as the circumstances where the attorney has a significant record of success.  A good mediator stays abreast of verdicts and settlements in the areas where the mediated cases are filed so he or she can speak with authority concerning a reasonable evaluation for the pending matter.

Someone trying to build a good business as a mediator cannot afford to develop the reputation of a biased neutral, or business will soon dry up.  All effective mediators understand their role as a neutral, and their sole goal during mediation is to assist the parties and their attorneys in reaching a resolution which is acceptable to both sides.  If the case resolves, the mediator is successful, regardless of how much the case settles for.  The parties are the ones who control whether or not they accept a settlement offer or demand, not the mediator.

Given all these considerations, plaintiffs and their counsel would be wise to consider retaining a seasoned defense attorney to assist them in resolving their claim or suit since that mediator really knows how to talk to the people in the defense suite.


 

About Lynn Roberson, Esq.

Lynn is a past president of the Atlanta Bar, the largest voluntary bar in the Southeast. She is also a past president of the Georgia Defense Lawyers Association. In 2013, Ms. Roberson received the Conspicuous Service to the Stonewall Community award. In addition, she was selected as the 2013 recipient of the Fred H. Sievert award, which is presented by the Defense Research Institute. In 2015, State Bar of Georgia’s Committee to Promote Inclusion in the Profession awarded Lynn its Commitment to Equality Award. She was recognized for her enduring devotion to the goals of promoting diversity in the legal profession and the provision of opportunities for members of underrepresented groups.

Learn more about Lynn. 

 

February 12, 2016 No Comments

Family Law Tips: Dividing Personal Property
by Chris Annunziata

image of family law mediator Chris Annunziata

The Rollins Case Study

I would venture to guess most family lawyers are familiar with the Glen and Danielle Rollins divorce saga. It is a cautionary tale about what can happen when two spiteful people with deep pockets get divorced and decide to fight over, of all things, doorknobs.

The Rollins reached an apparent settlement of their divorce in 2013, in which Danielle Rollins received essentially a $15 million cash settlement and Glen Rollins got the couple’s recently renovated $7 million Buckhead mansion. Despite the apparent agreement, Danielle must not have been too happy that Glen was awarded the mansion that she spent the time and over $4 million to renovate and decorate.

As reported, she took several items that had been awarded to Glen Rollins. According to Glen and court documents, Danielle also significantly vandalized the property, put “deep scratches on a marble vanity, ripped curtains, ruined a carpet and damaged antique crystal sconces.” He also claims she took 100 doorknobs “worth tens of thousands of dollars,” and replaced them with doorknobs from Home Depot. After months of continued litigation, motions for contempt and hearings, Fulton County Superior Court Judge Lane ordered Danielle to pay Glen more than $500,000 in compensation, contempt damages and attorney’s fees.

Now, I would wager that most of your clients don’t have so much personal property that they can fight it out over $300,000 in doorknobs, curtains, and patio furniture. That doesn’t mean, however, that clients won’t fight tooth and nail over their personal property or vandalize each other’s property out of spite. I once spent three hours in the Paulding County courthouse helping a couple painstakingly and equitably divide more than 30 firearms. Even when the parties both say, “Oh, no worries, we can divide the personal stuff,” there is no guarantee a fresh dispute won’t arise.

Tried-and-True Methods for Dividing Personal Property

Most clients also don’t have the disposable income to pay both you and a mediator to divide up their property. So what can you do when the clients can’t decide who gets the washer and who gets the dryer? Over the years, I’ve come across several creative methods you can suggest to help the parties reach a resolution on their own.

The “Shotgun” Approach

Giving credit where it is due, I learned of this method from Charles Medlin of Bovis, Kyle, Burch & Medlin. Charles called it the “shotgun” method but I’ve also seen it described as the “spinning shotgun.”

First, the parties agree to a list of the disputed assets and then decide which party “chooses” first. A round of “Rock, Paper, Scissors” works. The parties don’t simply choose items from the list like the NFL draft. The party that goes first gets to choose an item of property off the list and also gets to assign a dollar value. The other party then has the option to “buy” the item or “sell” the item to the other side at that price. The item and its value are then placed on the appropriate side of a ledger sheet. This process continues with the roles alternating for each successive item of property.

At the end, the total value of items on each side of the ledger is calculated and any difference in value can be equalized with other property. The threat that one party will eventually have to “pay” for overvaluing the property should mitigate the risk of one party setting inappropriate values.

The Blind Bid method

In a blind bid approach, each party creates a list of the disputed property and then places a “sealed” bid for each piece of property. The highest bidder “wins” that piece of property, which is then placed on the appropriate side of a ledger sheet. Once the bidding concludes, the value of the items on each side of the ledger is totaled up and any difference in value can be equalized with other property. Much like the shotgun approach, if one spouse intentionally overbids for the property they may have to “pay” for it elsewhere.

The “Last Cookie” Method

Another method is derived from the age-old solution to the problem of two children fighting over the last cookie. One spouse is instructed to draw up two lists of assets. The other spouse then gets to choose which list of property he or she wants. Because the spouse who drafts the list doesn’t control what he or she gets, they have an incentive to produce two lists which they would feel equally comfortable receiving.

While nothing is fool-proof, keeping both parties involved in the process should help increase post-divorce satisfaction resulting in both sides feeling as if they received a fair distribution of the personal property.

Parting Thoughts

Of course, if the parties want to mediate or arbitrate, I’m available to help you. For those of you who haven’t mediated with me at Miles, I invite you to come by and check it out. Everything at Miles Mediation is geared toward making your mediation as productive as possible. We provide all the amenities you could want – a convenient, comfortable, confidential space; catered lunch and snacks; audio-visual aids, WiFi and teleconferencing for the out-of-state party – so you can focus on the task at hand: settling your case.

October 12, 2015 No Comments

By Glenn Loewenthal

Maybe as a neutral I am overstepping my bounds a little here, but my intentions are in the right place. I see a trend in mediation that I think is leading to fewer settlements and that I think can be fixed or reversed. However, I think there is an easy fix to reverse that trend.

First and foremost, let me say that nobody should ever expect the other side to pay mediation costs. Whether the mediation is court ordered, suggested by the plaintiff or suggested by the defense or insurer, there is no built in expectation that any party will pay the other’s mediation costs. Some plaintiffs will come into a mediation with the expectation that because the defense suggested the mediation, and even picked the time, place and mediator, that they will or should pick up the plaintiff’s mediation costs. Again, no party should have this expectation, as such an expectation only leads to disappointment when they find out that is not the case. And disappointment can lead to other bad feelings that result in a failed mediation.

I do think it is a good idea for parties to address the issue of mediation costs when they agree to mediation. For example, if the defense knows at the outset that no matter the outcome of the mediation, that they know they will not pay the other party’s mediation costs, that information should be shared with opposing counsel so that they will not have any expectation coming into the mediation and can plan their strategy accordingly. Likewise, the economics of some cases may be so small and tight that a plaintiff will only want to mediate a case knowing that if the case settles that the mediation costs will be paid. So it is a good idea for counsel to address this topic when the mediation is first discussed and scheduled.

Now, for my thoughts on who should pay the mediation costs, when they should be paid and why. It is really the when part of the equation where I think reality it completely backwards from where it should be. What I see happening in reality is that in most cases that settled for $100K or more, the defense/insurer picks up all the mediation costs without a second thought. In cases that settle between $50K and $100K, the defense/insurer is picking up the mediation costs about half the time, and in cases that settle for under $50K, the defense picks up the mediation costs about 25% of the time. I think this is a flawed equation, and if reversed, would lead to many more settlements. Here is why.

Mediation costs, unlike the settlement amount, in most cases, is a direct cost to the plaintiff. In other words, it comes directly out of or into the plaintiff’s pocket, whereas settlement funds are usually split between the plaintiff, the attorney and any lien holders. In cases that settle for over $100K, the plaintiff is going to settle the case regardless of whether the defense/insurer picks up their mediation costs. However, for cases under $50K, and in particular cases under $25K, I have seen cases not settle solely because the mediation costs were not paid by the insurer. In these smaller cases, every penny makes a difference to the plaintiff, and because it is a direct cost to the plaintiff, that last thousand dollars is more important in mediation costs than it is in a settlement offer, which is split money. If I have seen this happen, and I am only one of thousands of mediators across the country, it is certainly happening on a daily basis. The defense/insurer is missing out on a great opportunity to settle more cases.

So I say to you insurers (because surely they will read this and listen to me) if you are paying mediation costs in larger cases and not smaller cases, stop it. Reverse that strategy. Stop paying on the larger cases and pay on the smaller cases. I guarantee you will settle more cases, and isn’t that the reason you want to mediate these smaller cases in the first place. Small cases are not economically smart cases to try for either party. However, the insurer is in a greater position to absorb this cost of litigation. Not only will you settle more cases, but the person you settle with may be your past, present or future insured, and the goodwill you buy will pay off tenfold. I can’t tell you how many times, in UM cases, the plaintiff leaves the room having decided to change insurers solely based on the mediation and the perception of how they felt they were treated. So especially in UM cases, I would encourage insurers to offer to pay the mediation costs, even in cases that don’t settle. The goodwill you buy is worth it. In college at UGA I majored in Risk Management and Insurance. We learned a lot about doing cost/benefit analysis. If insurers look at mediation costs using a cost/benefit analysis, their strategy would change, and they would start paying more mediation costs in small cases and less in large cases. In the end, the insurer would save more money, not only based on the analysis from above, but also because small cases are usually shorter and less expensive than larger cases. If you are a defense counsel reading this, I hope you will pass it on to your adjusters and managers for consideration.

Glenn Loewenthal is a member of Team Murphey; to learn more about him or to book him for your next mediation visit Milesmediation.com

June 30, 2015 No Comments

By Gregory J. Parent, Team Leader

Introduction

Mediation has arrived as an accepted medium for getting cases resolved, both pre-

suit and at every stage in the litigation leading up to and including the weekend before a

trial is scheduled to begin. In the last decade, mediation has exploded in popularity and

attorneys on both sides have embraced its effectiveness. While they may not always

agree on a case’s value, opposing attorneys almost always agree on exhausting settlement

negotiations at mediation in an effort to minimize risk, save litigation expenses, and

expedite resolution of the case before spending countless hours prepping for trial on cases

that should be settled.

Except for the first and second year attorneys still learning their craft, most

defense attorneys have been to more mediations than they can count on their fingers and

toes. It certainly isn’t uncommon for more experienced defense attorneys to attend a few

dozen mediations every year. Even the most experienced of defense attorneys, however,

only know HALF of the story, because they have never sat through a mediation in the

plaintiff’s room.

Preparation for mediation by the parties may be based on any number of factors.

Depending on the whether a case is being mediated pre-suit, early in the discovery

process, or on the eve of trial, the participants may have varied styles and goals in their

preparations for a mediation. For the mediator, however, the disciplined preparation for

mediation is almost always the same. The flow of a garden-variety mediation may vary a

little from one mediator to another, however, their individual styles will almost always

follow a familiar pattern. That being said, it’s not necessarily a formula or a rigid

structure, but there is definitely a method to the madness that mediators employ when

trying to help you settle cases while they are away in the other room.

Establishing Rapport

“Rapport” can be developed in any number of ways. While the following is not an

exhaustive list, these are five steps the mediator should consider which can prove to be

invaluable in starting the mediation off on the right foot. (1) Introduce yourself to the

plaintiff; (2) welcome them to their environment for the day; (3) determine whether they

have ever been in a lawsuit or mediation before; (4) try to discern whether the plaintiff’s

attorney has control of his clients; and (5) get a thumbnail summary of the case facts and issues.

Introduction and Welcome to the Plaintiff

The calling card of every full-time mediator is an ability to forge bonds with

anyone. It’s been said that good mediators are part salesman, part coach, part teacher, and

part psychiatrist. Mediators are usually dynamic, out-going personalities with a

seemingly innate ability to make people feel comfortable. Mediators must also be humble

enough to open doors for customers, get coffee, and help customers carry their lunch

plates to their individual mediation rooms.

If you think about it, although the attorneys and adjusters understand how cordial

and un-confrontational mediation can be, it’s brand new to the plaintiff. Setting aside

those few career plaintiffs who make a career out of trying to “game” the system, most

plaintiffs at mediation are first timers. And they are nervous, anxious, or downright

petrified about the process. Often times a warm welcome and introduction by the

mediator is all that is needed to break the ice and make a plaintiff feel comfortable and at ease.

Help Define The Plaintiff’s Environment

Much like a cruise director or a concierge at a fancy hotel, it’s the mediator’s job

to help define the plaintiff’s experience at a mediation. Coupled with the introduction is a

mini-tour of the facilities or specific directions on where to find things such as the

restroom facilities. In other words, a mediator’s first job is often showing a timid plaintiff

how to use a Flavia coffee machine or where to find Diet Cokes in the fridge. A good

rule of thumb to gauge a first time plaintiff’s nerves is whether you see food and coffee in

front of them in their room before the mediator arrives. If not, you can bet a mediator will

escort them to the kitchen so that the plaintiff can avail themselves of the breakfast

spread in the kitchen. Coffee and food are familiar and help to get plaintiffs acclimated

to the new surroundings. Because no one has an appetite when they are nervous.

If the plaintiff has come with a relative or friend who they directed to sit on the

couches in front of the TV, mediators may often invite them back into the room. Your

mediator is trying to determine whether the friends or family numbers are like a comfort

blanket. If so, we want them in the room to help reassure the plaintiff.

Our secondary goal with inviting them into the room is to have all of the

influential people in the room at the same time, so that we can address them together with

plaintiff’s counsel, so that they do not undermine the attorney or the process. Nothing is

more detrimental to a mediation than the armchair quarterback who poo-poo’s a whole

day’s worth of mediation progress, without ever having participated in any of the

negotiations.

Gauging the Plaintiff’s Prior Litigation History

The mediator wants to know the sophistication level of the parties and counsel

with whom he or she is working that day. Usually it’s a simple question: “Have you ever

been in a lawsuit or a mediation before?” Overwhelmingly the response is a resounding,

“No.” Occasionally, however, someone has gone through a divorce mediation. The

mediator may, at his or her discretion, use that opportunity to contrast the difference in

personal injury or business litigation disputes and family law mediation. Regardless, it’s

important to understand the plaintiff’s litigation experience and mediation background

prior to the opening session, so that the opening remarks can be tailored accordingly.

Determining Whether the Attorney Has Control

Where there has been no prior communication with plaintiff’s counsel, the initial

meeting is also an opportunity to establish arguably the most important factor in a

mediation—whether the attorney has control over his or her client. Before the mediator

asks the million dollar question, however, he may try to build the plaintiff’s confidence in

their attorney, by sharing an old war story if he and the attorney are friends. Or, in cases

where the mediation is a first introduction for both the attorney and the mediator, a more

direct “out of ear shot” question is in order: “Are your clients listening to you?”

What Are We Here For Today?

Secondary to understanding the interplay between plaintiff and his or her counsel,

is an initial determination as to the merits of the claim. If a mediator hasn’t already

worked with the attorney or gotten any advance materials to review, they may use this

time to listen to the details of the case. While no firm judgments can be made only

hearing one side of the story, it’s possible to develop a sense for whether the case has

some potential to get resolved based on the plaintiff’s evaluation of the case.

What You See In The Defense Room Before The Opening

Chances are, you’ve worked with your mediator before. Your initial meeting is

almost like two old friends catching up. After hearing about the kids, the latest vacation,

or how the ‘Dawgs did in their last game, the mediator wants to know your perception of

the other room. And, as Paul Harvey used to say, we want to hear “the rest of the story.”

But that much you’ve already seen.

Building Credibility During the Joint Session

For those of you who mediate regularly, you can probably recite the lion’s share

of your regular mediator’s opening remarks. You are familiar with their explanations,

their anecdotes, and their preferred metaphors used in welcoming the parties to the

mediation. There is, however, a specific purpose to our opening. A mediator wants to

establish credibility with the plaintiff and EACH and EVERY other person in that room

with their opening remarks. While the styles may vary, every mediator wants to (1) talk

about his qualifications and experience and background, (2) introduce the parties and

their respective roles; (3) explain the process of mediation and a general timeline or

detailing of what to expect throughout the day; (4) listen with a nuanced ear and observe

every minute detail of the interactions of everyone in the room.

Mediator’s Back Story

Most attorneys have either worked with the mediator before or have researched

their mediator online and/or through other colleagues. Even though you know them, it’s

important for the mediator to still say it in the opening in front of everyone. If there are

subtle changes in the “script” of the mediator’s background, it’s likely done to touch

upon an earlier connection made with the plaintiff. It’s also important to show that there

is one voice in a position to help “be in charge” of the proceedings so that there is a

perception of order and fairness. If nothing else, the mediator needs to firmly establish his

or her neutrality.

Introduction of the Parties and their Roles

Beyond just knowing everyone’s name and title, it’s sometimes helpful if your

mediator briefly defines everyone’s “role” within that opening session. It can be as

simple as establishing that the defense attorney and the adjuster are going to be working

together to evaluate the plaintiff’s case. But it can also be more inclusive and identify the

goals of the parties. The mediator may help diffuse the emotional aspects of a mediation

by stating that the defense is there to make a business decision and that it’s not a personal

attack against the plaintiff. Mediators vary in their approach, but it often helps take the

sting and anger out of the room when the roles of the defense are explained in the

opening session by the neutral. When a plaintiff hears from an objective neutral that the

defense has no “ax to grind” with the plaintiff, but rather that they are just doing their

jobs, it can help set a collaborative tone from the start.

Explanation of the Mediation Process

A mediator should explain in general terms about what to expect. Whether they

describe the individual caucuses or just explain that the mediation process takes time, an

explanation—however long or brief—helps set expectations. Generally speaking, the

mediator should also discuss that lunch will be served and snacks will later be provided.

In addition, the mediator should advise that he or she will provide updates as to how the

proceedings are developing to give everyone a sense of perspective on how the day is

progressing.

Mediator Should Shut Up Listen and Observe

Mediators should be good listeners and excellent observers. During the mediation,

it’s common for mediators to take some notes, but generally speaking, they are watching

the interplay between everyone. Watching the reactions of the attorneys when

information is relayed. Watching the interplay between the plaintiff and their own

attorney as well as the defense team. It is not uncommon for a mediator to observe

reactions or body language that they can later use as leverage when meeting with the

parties separately. In other words, it’s like playing poker—everyone has a “tell”.

Another subtle job of an effective mediator is determining the best avenue or

manner in which each person prefers to receive information, so that the mediator’s input

can be best communicated. Some folks want to here recommendations. Some folks want

to here options. Some folks don’t want to hear anything. It’s the mediator’s job to know

their audience.

Focusing The Plaintiff on Transparency of the Mediation Process

Generally speaking, the first caucus with the plaintiff is always very important for

purposes of further explaining the mediation process. Regardless of where the

negotiations are and whose move it may be next, most mediators choose to meet with the

plaintiff first. The mediator uses this time to address the information shared by the

defense attorney and the adjuster in the opening remarks, especially where legal issues

like liability and causation have been raised. A mediator should not shy away from

delivering sobering news about what was learned in the opening session—especially if it

was tense or heated.

Additionally, during the opening caucus, it’s important to dispel and thwart any

attempts by the plaintiff or counsel to demonize or otherwise paint the defense team in a

negative light. Mediators do not meddle in historic or long-running petty personality

conflicts between defense counsel and plaintiff’s counsel. It is important, however, for

the mediator to distinguish the actions of a defense attorney simply doing his or her job

from what is perceived by the plaintiff to be a personal attack.

Sometimes this is as simple as saying, “The defense attorney didn’t call you a

‘liar’, what they said and what they meant is that the large gaps in your treatment history

raise ‘red flags’ and make them question whether your pain and injuries were still

related to the subject accident and not some other intervening new incident.” The

mediator is not choosing sides in a situation like this, rather, they are cutting through the

rhetoric and any disinformation and trying to focus the plaintiff on the kernels of truth

and objective relevant [or admissible] evidence.

Another thing that mediators explain to plaintiffs in the opening caucus is that

their goal is to bring their attorney information. Mediators often assume the role of the

sailor in the “Crow’s Nest” of an old ship. A mediator is usually a former practicing

attorney who knows the perils and pitfalls in a case when they see them. They can often

avoid the angst of having to deliver bad news by establishing with a plaintiff that they

should want to hear EVERYTHING a mediator can learn about their case—good, bad,

and ugly.

Rather than being tasked with charting a course of action based on the

information, a mediator can simply ask the plaintiff’s attorney, “What do you want to

do?” Such an open-ended question is both a request and an invitation, if asked, to discuss

the merits of the information. Regardless of which way the attorney chooses to go, the

plaintiff gets to see the transparency of the information gathering and how it is shared.

In other words, even if they don’t like what they hear, plaintiffs can feel confident

that their mediator is not employing any tricks or tolerating any gamesmanship

shenanigans between the parties in the process. Some plaintiffs are very skeptical of

everyone in a mediation and the transparency helps placate their paranoia.

Managing Expectations and Determining Motivations

It helps to have good bedside manner when you deliver the sobering news, but

most mediators have already paved the way for talking about the bad news long before it

has to ultimately be delivered. There are any number of ways to forecast the ballpark

where the settlement is likely going to end from far away.

Some mediators portend for the plaintiff where the defense may be going [when

armed with specific information from the defense room]. Some mediators postulate as

though they were “thinking out loud” as to where the settlement numbers might be

trending based on how the offers and demands are tracking. Others seek to use brackets

to help define the ballpark, mathematically speaking.

While it is important and relevant to help guide the plaintiff’s expectations as to

where the negotiations are heading, the mediator needs to also arm the defense with

information as to the plaintiff’s motivations. Many plaintiffs are truly only there the

money. Occasionally, however, some folks just want to be heard. Their motivations are

neither about the money nor going to trial. They simply want to be heard, appreciated,

validated, and acknowledged. Often an apology from the defense team goes a long way in

helping resolve those emotional issues for plaintiffs with those sincere concerns.

When non-monetary issues are the primary motivator, it is incumbent for the

mediator to listen carefully for alternative ways to address the issues standing in the way

of resolving a case. For some commercial clients, gift cards to the business, coupled with

settlement dollars, can help to resolve a case. Other times, the plaintiff may just need to

time to acclimate to their new reality, time to feel like they are being heard, and time to

accept what is being offered.

In all situations where emotions are governing the negotiations more than math

and simple monetary exchanges, the mediator should be providing the defense with a

summary of the “temperature” of the room, so the defense can adjust their expectations

and prepare to let the process play out.

Closing The Deal

After a long day of negotiating, especially where the discussions have been tense

and emotional, but largely productive, it is of paramount importance that you have a

mediator with a sense, a knack, and desire for closing the deal. That mediator has to have

both a long and short memory and be stubborn and wholly unafraid to challenge every

person in both rooms.

A long memory serves the mediator well in trying to close the deal on a difficult

mediation, because the one piece of information needed to persuade one room or the

other may have been something seemingly insignificant that the mediator observed or

heard in the opening session. Much like a closing argument, the last couple of exchanges

in a negotiation need to include summaries of the entire day’s proceedings in the hopes

that one room or the other may budge.

When in the defense room, you’ll see the mediator play the “devil’s advocate”

role and be intentionally obtuse to test your position. Once you’ve heard, evaluated, and

made a final decision, however, the mediator knows that the final moves, if any, are

coming from the plaintiff’s room. What you don’t see is that the mediator is doing just as

much, if not more “devil’s advocacy” in the plaintiff’s room.

A particularly effective tool in helping to show the plaintiff perspective is taking

the difference in the respective positions, however large that number may be, and

deconstructing it to show the plaintiff the “net” amount he or she will recover. Mediators

will show how that number, minus attorney’s fees, minus the likely incurred expenses,

isn’t as big a difference as they thought. Or, the mediator can talk about risk avoidance

and how the money on the table is likely better than their risk of possibly doing worse at

trial. Regardless of the method, the goal is the same and the effort from the mediator is crucial.

Conclusion

Contrary to what you believe, mediators do not control the outcomes of

mediations. We control the process and the flow of information. No mediator has ever

decided a case at mediation. Rather, we control the other aspects of the mediation process

and try to encourage both parties to play fairly.

Sometimes that means we have to serve as translators to help the different sides

see the common elements of the case the same way. Other times, mediators have to dispel

misconceptions or erroneously based perceptions that the parties may harbor. While some

emotions are expected and a natural part of the mediation process, foolish and prideful

emotions are ineffective at mediation. They need to be identified and eradicated with the

help of a strong mediator.

When the mediator is not in your room, he or she is trying their best to build a

bridge between your room and the plaintiff’s room by fostering effective communication

and using their credibility, establishing rapport, or delivering straight talk in a manner

than can best be heard and understood by the plaintiff. All of our efforts are targeted with

the goal of building a mutually beneficial foundation for the parties to explore and

exhaust settlement discussions.

And that’s what the mediator is doing when not in your room.

[Unless he or she is in the restroom.]

May 12, 2015 No Comments

By Joe Murphey

There’s a reason why, in the early afternoon hours, the hallways and corridors of Miles Mediation are filled with the aroma of freshly baked cookies and movie-style popcorn. Comfort food to the rescue! Behind the doors, in many of the conference rooms at Miles, around this same time, difficult decisions are being contemplated. Read More    »

March 24, 2015 No Comments
image of family law mediator Chris Annunziata

by Chris Annunziata

Someone needs to make a first offer in every negotiation. Old-school negotiators have typically let the other side make the first move, believing that the party who first put out a number tipped its hand, or ended up overpaying or leaving money on the table.

Modern negotiation theory holds the contrary opinion. Studies have shown that the party making the first offer positively influences the outcome of the negotiation; and that the benefits of making the first offer are powerful – even between knowledgeable, experienced parties. This is due to a cognitive bias known as “anchoring,” i.e., the tendency to give a greater significance to the first offer in a negotiation.

One meta-analysis conducted by Dean Chris Guthrie of Vanderbilt Law and attorney Dan Orr of several anchoring studies concluded that anchoring “has a powerful influence on outcomes . . . [with a] correlation of 0.497 between the initial anchor and the outcome.”* As they put it, “In lay terms, the 0.497 correlation means that every one dollar increase in the opening number is associated with an approximate fifty cent increase in the final sale price.”

And yes, this strong correlation exists whether the study participants were novices or experienced negotiators. When adjusted for negotiation experience, however, Guthrie and Orr’s study found a slightly lower 0.37 correlation between the opening number and the result; or to use his lay explanation above, every additional dollar in the opening number correlated to a thirty-seven cent change in the final result.

A good anchor can also put the other side “off its game.” I can’t tell you how many times I’ve brought an aggressive opening number to the other caucus room and then spent a significant amount of time debating the reasonableness of the opening number rather than discussing how best that party should proceed.

The key to making the anchoring strategy work is to make your first offer as aggressive as possible without being so unrealistic as to make the other side walk away from the table. That should give you some room to move and it allows you to define – rather than react to – the zone of potential agreement.

But what can you do if the other side has already attempted to set an anchor?

First, try not to react negatively to the other side’s initial number. Sure, the opening number may have been aggressive but remember: you’ve done your homework, you’ve spent time preparing for mediation and you know the number at which you are willing to settle.

Second, send a brief explanation of your counter-offer but be wary of editorializing too much about their first move. Send a simple message that you understand what they are trying to accomplish, you have your evaluation of the case, and you will not be swayed.

Third, be aware of – but don’t necessarily focus on – the initial midpoint. You know your top-dollar or bottom-line. It should not matter too much to you that the first few moves suggest a mid-point outside of your settlement range. What matters is the final result.

Finally, rely on your mediator. I am there to help you take stock of the situation, focus your efforts and help move you and your client toward a successful settlement.

*Guthrie, Chris and Orr, Dan, Anchoring, Information, Expertise, and Negotiation: New Insights from Meta-Analysis. Ohio State Journal on Dispute Resolution, 2006; Vanderbilt Law and Economics Research Paper No. 06-12.

To Learn More about Chris or to book him for your next mediation, check out his bio.

 

February 27, 2015 No Comments

Miles Mediation and Arbitration Services is a relaxing, friendly facility that lends itself to conflict resolution. Factor in the advantages of our experience, style, ethics, confidentiality, logistics, location and competitive cost structure, and you can readily see why we have earned the reputation we enjoy in the industry.

Miles Mediation’s experienced mediators work efficiently to settle the most complex disputes – regardless of the size or type of the case But with all of that aside, why should you choose mediation services? John Miles tells us the top 5 reasons to choose mediation…check it out below.

1) mediation is less expensive than trial. A trial can cost a litigant $50,000 or more in fees and expenses. A day of mediation costs a litigant less than $2,500.

2) mediation brings closure and finality. While a trial verdict is often only the beginning of the litigation process. Verdicts can be appealed and that can go on for years. A mediated settlement ends a dispute once and for all.

3) mediation offers a litigant the chance to control outcome. If a case is tried before a jury then 12 people who don’t know the litigants will dictate an outcome, however, mediation allows the litigants the opportunity to agree on an outcome.

4) mediation is quicker than trial. It can take years for a case to be tried and appealed. A case can be mediated in a day.

5) mediation offers a litigant the opportunity to be fully heard. At trial litigants and their attorneys are constrained by the rules of evidence. Mediation is an informal process where litigants can speak freely.


Miles Mediation & Arbitration Services offers fast and easy scheduling for our clients. Use our calendars to check our mediators’ availability to schedule your mediation online. Simply click on the preferred date, fill out the form that will appear on your screen and submit. Once we have received your request, our Scheduling Coordinator will contact you and confirm that you have booked your mediation.

December 4, 2014 No Comments

Miles Mediation was recently named the #1 Mediation firm in Georgia by Daily Report’s Best Of 2014;so we asked Miles Mediators why they think Miles Mediation is #1. Team Murphey mediator Chris Annunziata opens up in this blog post and explains What sets Miles Mediation apart and why he thinks Miles Mediation is miles above the rest.

Miles Mediation was recently named the #1 Mediation firm in Georgia by Daily Report’s Best Of 2014; why do you think Miles Mediation earned this award? What makes Miles Mediation #1 to you?

I’d like to think our clients appreciated our commitment to them: the dedication our mediators have to our craft, and all the hard work that goes into providing them the very best environment for settling their disputes. While there are plenty of fine mediators in Atlanta, I cannot think of a better, more enthusiastic group of mediators and staff. We cannot forget our staff. I was a solo mediator for almost seven years and I know how hard Sydney, Mariam and Keyonna work to make sure everything runs smoothly.

What is the Miles Mediation Team Approach? What does the Miles Team Approach mean to you?

I was an independent mediator for seven years before joining Miles Mediation. I’ll be frank: I was used to being on my own and was leery of joining a firm but I immediately recognized the benefits of being part of Team Murphey and Miles Mediation. From the client’s perspective, it has made me a better mediator. When I come to the office, I have a group of experienced, seasoned mediators with whom to consult if things get tough. I have also had the opportunity to shadow some of the other mediators, learning from their styles and honing my skills. I feel confident that if you cannot mediate with me for whatever reason, you can choose Joe or anyone else on Team Murphey and receive the same level of attention to detail and hard work settling your case. From a more personal perspective, I am glad to be part of a team that invests in its mediators and provides us every opportunity to grow our practice and provide quality service to our clients.

To Learn More about Chris or to book him for your next mediation, visit:

Christopher Annunziata, Esq.

November 26, 2014 No Comments

We asked some of the folks at Miles Mediation to share some favorite Thanksgiving memories and traditions. No surprise most of the things mentioned included family, laughter and the shining star of the day: food.

Joe Murphey – Team Captain
Twenty-seven years ago, my then-future mother-in-law Marcia and I collaborated on cooking a turkey. We somehow survived the ordeal, and the turkey was spot-on. This year, we will make it 27 perfectly roasted, mouth-watering turkeys in a row.

Many folks travel to be with family on Thanksgiving. Susan and I have been blessed to have be Thanksgiving Day home-base for both of our families — now for nearly three decades. This year my parents, her parents, our kids, some friends and a Swedish exchange student will all pull up a chair to the table to dig in to Turkey #27. For that we are truly thankful.

Keyonna Calloway – Receptionist
My favorite Thanksgiving tradition is every year my family and I put on a talent show. After we’ve eaten, we all gather in the living room area with hot cocoa or adults have their beverage of choice. From the babies to the elders, everyone portrays a different talent. We all laugh and enjoy the show. The best offering I’ve seen so far was a spoken word skit that my younger cousins did about how family is really important.

I’m thankful that there is a time of the year to reflect, although we should daily but due to busy schedules we tend to forget. Those are laughs and memories that will stay with me forever. I will keep the tradition going when I start my own family. Those talents — each and every one of them — reside in my mind and play back. It warms my heart to see everyone not worrying about all the daily problems and enjoying family at that moment. Priceless.

Greg Parent – Team Captain
I love Thanksgiving. Over the years, it’s gone from spending the day with very close friends, to hosting it for my family, to traveling back home to North Carolina to spend it with my folks. I’ve always spent that day with my folks. And we also have turkey, stuffing, rolls, and cookies.

For more than a decade, my family has had nothing but fried turkeys, injected with Creole seasonings. Before that, we had the traditionally-baked turkeys. Frying the turkeys is quicker, if not a little more dangerous.

The friends have changed faces over the years. We’ve added spouses, grand kids, and new traditions, but it’s still a thankful time to be with family, eat good food, and watch football. And nap. Tryptophan can have that affect on a body.

The newest tradition, that I’ve participated in with my wife over the past five years, is standing in line for Black Friday sales. It was a tradition that my wife and her sister had when they were younger. As time passes and they split time with their respective in-laws, they are not always in the same town. So I became the Black Friday shopping partner. Most times I’d rather get a root canal than battle all of humanity for a few discounted items. But then again, the competition of trying to battle for a 600-piece box of Legos can be a little addictive.

David Nutter – Team Captain
My favorite Thanksgiving memory is Thanksgiving 1973 when my family went to New York to see the Thanksgiving Day Parade. The parade itself, of course, was awesome. Watching the mighty parade balloons coming down the street was a dream come true for a kid from South Florida.

After a long exciting day, we wearily went in search of a good Thanksgiving dinner. My mom decided, “Hey I’m in New York, I’m not having Turkey.” By this point of the day her bratty kids (my middle sister and me) were driving her crazy and she was ready to sit down with a cocktail and her non-Turkey Thanksgiving dinner. Well, at the particular eatery we wandered into, the dear table server made it her mission to convince my mom that she just had to have turkey for dinner, because it was Thanksgiving, after all. My mom firmly insisted again that she did not want turkey. The table server, a New York original if there ever was one, insisted equally firmly that the very honor of the Pilgrims was at stake–that she had to have Turkey. “Awe honey, now come on, it’s Thanksgiving, you just gotta have turkey.” My mom, at this point beyond all frustration, pleadingly said, “I don’t want turkey.” A whole new round began. Finally, my mom gave up, retreated to her drink, and with resignation said, “Fine, I’ll have turkey.”

The server, thinking she had done a great good for my mom, triumphantly marched off to the kitchen. My dad, my sister and I sat in stony silence as my mother glowered at all of us, no doubt thinking that the server was somehow secretly in league with us to drive her completely insane. Five minutes later, the server returned with a very glum look and said to my mom, “Honey, I’ve got bad news for yus, we ain’t got no turkey.”

With that my mom and dad burst out laughing, with one of those cathartic laughs that can’t be stopped even if you want to. For minutes they laughed and laughed and laughed until tears rolled from their eyes. In fact, in all of their lives I never knew them to laugh as hard or as long as they did that night. The server seemed relieved and a bit confused that mom and dad were not angry that they could not get turkey on Thanksgiving. And she could not quite understand what exactly was so funny, but she decided to join in on the laugh any way. Laughter seems to work that way. We have all long forgotten what we actually ate that Thanksgiving night 41 years ago, but we have often remembered the humor of that moment. And just as was the case that night, with every retelling we have laughed afresh, and our spirits have been renewed.


Sydney Thaxton – Office Manager

Growing up we’d go to Bainbridge, Georgia, my maternal grandparents’ home for Thanksgiving. Every morning from Wednesday morning until Saturday we had coffee, grits, fresh cured bacon, deer sausage, farm raised eggs and when my grandmother was living, we had her homemade biscuits and mayhaw jelly.

Wednesday night was always “Chili Night” because my aunt would bring a large pot of her famous savory chili and rolls. Thursday was the big garden-grown, home raised feast: Fried turkey, smoked turkey, ham, variety of game (depending on what my uncles caught ie . . . quail, squirrel, deer, alligator, duck, frog legs, etc.), candied yams, dressing and gravy, collard greens, turnip greens both of which were from my uncle’s garden, baked mac-n-cheese, rice, lima beans or succotash, cranberry sauce, green beans, sweet potato pie, pecan pie and when grandmother was living, four-layer chocolate cake. Friday night was fish fry and bon fire. The menfolk would stand around the fire in the cold and fry the fish and homemade potato fries. The women would be in the house making the cold slaw and battering/seasoning the fish and potatoes to be sent outside to fry.

There was always plenty of fresh sugar cane to peel and chew on while having political debates, solving one another’s problems and sharing many, many laughs.

The entire Miles Mediation family is grateful for all our clients and customers. We wish you a wonderful Thanksgiving Day 2014 full of laughter, love and good food.

October 30, 2014 No Comments

By Jamie Miles

One aspect that sets Miles apart from other mediation firms is the Team Concept.

Recently, John Miles answered few questions on how this team concept works and how it benefits clientele.

Q: Miles Mediation started in 2000. When did you add the team concept?

A: About 5 years ago.

Q: What’s the appeal? Why does a team concept help me as a customer?

A: When scheduling a mediation, most people have a mediator they like. But if you like them, other people do to and want to schedule with them. And we can’t make more days in a month.

So I decided to try and provide options that meet customers’ needs. For example at the Chinese restaurant, I always order Mongolian Beef. But if they didn’t have Mongolian Beef on the menu, I’ll try something else and see if I liked it. That way a very picky eater like me learned to enjoy other dishes.

Team Leaders are paid a percentage of what their team earns. Therefore they are motivated to add good mediators to their teams and train these mediators to be effective. The team approach keeps new mediators happy because they get an opportunity for more mediations. Team Leaders are happy because they benefit financially if their team produces and customers like having a choice of quality mediators.

Q: How did you get the team approach started?

A: The first team leaders were Joe Murphey and David Nutter. I assigned their team members trying to match personalities with Joe and David. Another factor was the type of mediations they did. David’s team had more business-to-business mediators and Joe’s team specialized more in personal injury. Though certainly neither team is mutually exclusive. I tried to mesh personality and style.

The leaders train their teams with specific techniques and advice. Team leaders invest in the mediators working with them and want them to succeed because they will get a percentage of the fee.

Q: How does it work?

A. Eighty percent of booking is online. On the website, you can meet our teams and read about each mediator. The team schedules are aligned together. That way there will be enough team members available for clients to choose on a specific date. There will always be a good mediator for you on a date that works.

The newer team members are at a lower rate than the leaders. This hopefully is an incentive to try someone different. The members will qualify to be team leaders as their skills develop.

For example, the newest team leader is Greg Parent. Greg had never led a mediation before joining Miles as a member of Joe Murphey’s team. He shadowed Murphey learning the craft and Joe introduced him to clients. Now as team leader, Greg has formed his own team and is one of the most popular mediators.

When asking Greg his thoughts on the team approach he was theoretical.

“To me, the team approach is tantamount to dining in a fine restaurant. Whether I’m welcoming clients into the office or showing someone how to use the coffee machine, it’s of paramount importance that I work hard to make certain everyone in our office feels comfortable, regardless of whether they are in my particular mediation or not.

With team approach, Parent as the mediator always asks, “How can I help you today?”

October 12, 2014 No Comments

By:
Gregory J. Parent
TEAM LEADER


Introduction

Mediation has arrived as an accepted medium for getting cases resolved, both pre-suit and at every stage in the litigation, up to and including the weekend before a trial is scheduled to begin. In the last five years, mediation has exploded in popularity and attorneys on both sides have embraced its effectiveness. While they may not always agree on a case’s value, plaintiff’s attorneys and defense attorneys all agree on exhausting settlement negotiations at mediation in an effort to minimize risk, save litigation expenses, and expedite resolution of the case before spending countless man-hours prepping for trial on cases that should be settled.

Most parties enter into mediation with hopes of getting their case resolved by the mediator before the close of business that day. Whether court-ordered or stipulated by the parties, a mediation is an opportunity for the plaintiff’s attorney to get paid and the defense attorney to close a file. Barring those exceptional circumstances when the chances for settlement are doomed at the outset, usually for reasons wholly unrelated to the motivated parties themselves, every case that goes to mediation starts out with the goal of being compromised in a manner that is suitable to both parties. More importantly, about 80% of those mediated cases actually do settle at mediation. For those cases which end in an impasse, however, the success rate for resolution thereafter is predicated on the conduct and demeanor of the parties immediately following the mediation.

When The Fall Is All There Is, It Matters

At the end of the 1968 movie, The Lion In Winter, there is a scene where the three brothers, Richard, Geoffrey, and John are hiding in the dungeon while Henry is coming down to execute them. Richard, the eldest, tells his brothers not to cower but to take it like men, boldly stating, “He’ll get no satisfaction out of me. He isn’t going to see me beg.” Geoffrey, the younger brother exclaims, “My, you chivalric fool, as if the way one fell down mattered.” Richard replied calmly, “When the fall is all there is, it matters.” That sentiment is never more relevant than at the end of a mediation which ends in an impasse.

On average, one out of every five mediations ends without a settlement between the parties. Impasses happen. The way in which the parties conduct themselves immediately following an impasse, however, may govern whether a case will resolve within a few weeks or ensure that it goes forward to trial.

Mediations are a great forum for the exchange of information and the discovery of subtleties in litigated cases that the parties may not have fully realized beforehand. Often one party discovers information so counter to what was expected heading into the mediation that extra time is needed to complete further discovery and investigation of the facts or medical records. There are times that one party may need to digest everything that happened over the course of the mediation. Other times the parties may get so close to an agreement, yet still be beyond the settlement authority that an adjuster brought with her to the table.

In those cases especially, where an immediate agreement cannot be reached on the day of mediation, it does not automatically mean that negotiations are over. It may just mean that more time is needed. For plaintiffs, that can mean assessing their risk in light of newly discovered information. For defendants, that may mean writing reports, crunching numbers, participating in round tables with other adjusters, or and running things up the flagpole to get more authority. Therefore, as suggested in the quotes from The Lion In Winter, when an impasse is inevitable, and the fall is all there is, it matters how you leave the mediation.

Conduct Yourself As Though You Plan And Hope To Settle Your Case

If The Lion In Winter provides us with a plan on how to handle impasses, our youth sports and children provide us with the blueprint on how to execute the plan. If your children have ever played a sport like soccer, basketball, or tee ball, you know very well that the teams line up at the end of the game so that each player can shake the hand of each opponent. Win or lose, it’s a staple at the end of games, followed immediately by the tradition of team parents passing out orange slices and Capri Suns. Even the most dedicated little athlete usually gets over the frustration of a loss by the time the Capri Sun is drained and their orange is consumed.

There is a lesson to learn from watching our kids. Our children exhibit the exact behavior you should model following an impasse. Most of the time an impasse does not happen on the very last move. Instead, the parties are usually able to see the impasse coming several moves before the end. If the parties are aware of the impending “fall”, it matters how you act when the impasse arrives.

Setting aside the client’s emotional involvement and personal feelings, a mediation is a business decision. Rather than fall into the trap of letting anger or frustration govern your actions, take a deep breath. Take a moment. Be a professional. Be cordial to opposing counsel. And shake hands. Certainly, if you’ve got an emotional client who was overly drained by the process, you should allow them to leave the mediation privately. The attorneys and adjuster, however, should stick around to discuss with opposing counsel the next steps that need to be taken before reaching another decision point.

Sometimes the defense has reporting that must be completed in order to explore whether the insurance carrier has more authority to make increased offers. Other times, the plaintiff may go home and discuss with family members the amount of the last offer on the table and rationalize that the ‘bird in the hand’ is better than the scary prospect of going forward with a trial. Storming out of a mediation in an angry huff, however, precludes any such continuing discussions. It figuratively and often literally shuts the door on further negotiations and usually handcuffs the mediator from being able to keep open the lines of communication.

Keep that in mind the next time an impasse seems imminent on the day of mediation. An impasse doesn’t mean a settlement can’t happen further down the road. It is often just an invitation to continue the discussions after further reflection. Either way, the manner in which you conduct yourself upon realizing that there will be an impasse matters . . . and it matters a great deal. In my experiences as a mediator, when the parties are as cordial after an impasse as they are at the beginning of a mediation, there is always at least a glimmer of hope of getting the case resolved over the course of the next several weeks.

The opposite is true, however, when a party storms out in dramatic fashion. Such juvenile antics almost always signal a figurative and literal slamming of the door on any future negotiations. For a big metropolitan city, Atlanta is really a very small town when you think about the legal market. Chances are that you will see or work with your opposing counsel again on more than one occasion thereafter. There is no need for either side to act like a jerk following the impasse.

Your Mediator Should Be A Liaison For Continued Settlement Negotiations

A strong mediator will have a feel for the pulse of the parties both during and following a mediation. If it is not readily apparent to you where the settlement discussions went off the rails, engage your mediator and gauge his thoughts about how you might keep working towards a compromise. While an impasse should be viewed by the attorneys as an invitation to the attorneys to keep going, impasses should seem like a blaring siren to your mediator. The impasse should signal to the mediator an immediate need to shift his effort into overdrive in order to push, prod, and exhaust all settlement possibilities. A strong mediator will go the extra mile to help keep the parties actively involved in continuing settlement discussions. Moreover, he will initiate the process to take the burden off of the individual attorneys.

Conclusion

Do not allow an impasse to prevent you from resolving your case after a mediation. An impasse, if handled properly can just be a hiccup or a small delay in getting your case settled. Impasses happen. How you comport yourself following a mediation matters. Model your behavior after the very kids you drive to and from practice each week just to watch their games on the weekends. Shake hands. Be cordial and show your opponent good sportsmanship. Involve your mediator and seek his assistance as a liaison between the parties for continued settlement negotiations. If you do all of these things in the wake of an impasse, you just might be rewarded with a pay day or a closed file. 

To learn more about Team Leader Greg Parent or to book him for your next mediation, visit here:
http://milesmediation.com/team/team-parent

September 29, 2014 No Comments

By Jamie Miles

Sometimes a spouse says, “I told you so.” And sometimes it’s best she just thinks it.

Wait a second. Let me back up.

Recently, the Daily Report came out with their Best Of awards. My husband’s company, Miles Mediation, took the top honors for mediation firms.

I’m very proud of him and all his hard work. And I took this occasion to remind him that he isn’t the only mediation visionary in our marriage.

“Selected best mediation firm in Georgia, huh? I seem to remember hopping on this mediation train way before you.”

“What?” my mediating husband asked with what could have been interpreted as a roll of the eye. “Is this when you are going to talk about law school?”

I plowed ahead. “Remember I told you about this Alternate Dispute Resolution course being taught by Judge Eldridge – how I signed up for it and you should too. That it was the next big thing in law.”

No. My husband did not take my suggestion or take that law school course. Why waste a semester studying this thing called mediation if he was going to be a litigator?

So the other day — after I got my dig in, I let him buy me a cup of coffee and we chatted about the honor he received doing something he thought wasn’t worth a semester of his time 25 years go.

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John’s thoughts on winning the award:

“It took ten years of hard work to become an overnight success. This recognition means a lot because it’s voted on by your peers. It’s nice to have this acknowledgement from the bar.”

“And you are right. In law school, I wanted to be a trial lawyer. To me, mediation was the opposite of that. It wasn’t why I went to law school. I felt it was something put forth by the academics and judges but it had little worth in the real world.”

Thoughts on the evolution of mediation:

“For years in the Atlanta market, the only option was Henning Mediation. Ed invented the idea of going to a neutral mediation site. Even today in most cities, mediators work part time and go on house calls. Ed conceived the mediation center concept: coffee, sandwich and cookies included.

You started the company in 1999. When did you notice things start to change for Miles Mediation?

“There were many stages and many transitions over the years. Things happened gradually till about the last 18 months. At the end of 2012, beginning of 2013, the company started to grow rapidly.”

I remember we had a raffle at the ­­­­­­­­G.T.L.A. Auto Torts conference in 2007. Part of putting in your entry to win a golf bag was to answer a few questions. As a result of that survey, we learned that only 20 percent of attendees had even heard of Miles Mediation.

It took seven years, but I guess you we have better name recognition now.

We are in the hospitality business. That means providing the whole experience. We upgraded our food, our service and facility. That’s what took us to the next level.

It’s been an exciting 10 years. Look forward to see what the next decade holds.”

September 16, 2014 No Comments

By Jamie Miles

Most Americans remember where they were on September 11, 2001. For Atlanta attorney and Miles Mediation mediator Scott Delius, that day not only impacted his memories, it dramatically changed the course of his life.

Born and raised in Memphis, Tennessee, Scott graduated from the University of Tennessee and University of Memphis Law School. After finishing law school in 1997, he moved to Atlanta to work as an associate with two insurance defense firms. Scott decided to start his own practice in 2001. A couple of months later 9/11 happened.

Before 9/11 had you ever entertained thoughts of military life?

“It was something I always had in the back of my mind. But there was always something else to do. My dad’s retired military so that was always there – but 9/11 was the kick in the pants.”

“At the time I was 31 and didn’t get commissioned till I was 35. That’s kind of pushing it age wise.”

There’s no doubt of Delius’ determination when he has a goal in mind. Even the U.S. Military with all its procedural roadblocks was no match.
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First hurdle to clear was a trip to the Military Entrance Processing Station (MEPS).

“I think I went three times and got turned away.” Having had knee and foot surgery when he was younger, Delius couldn’t even make it to the point of having a doctor examine him.

Joining the Military, Plan B.

“My recruiter said, ‘You’re a lawyer. Let’s try to get you in the Army National Guard JAG Corps.’”

On the advice of his recruiter, Delius turned to the National Guard. Admission to the Guard requires meeting the same standards as the active duty U.S. Army. Scott explained that the U.S. Army Reserve and Army National Guard fall under what he refers to as “Big Army.” Indeed, all Army soldiers, whether Active, Reserve or National Guard, belong to the U.S. Army.

“When someone goes into the National Guard a state surgeon actually lays eyes on you rather than a PA or nurse stopping you at the door. The doctor immediately saw that there was nothing bothering me. I’ve always been an athlete. So he said, ‘Sure. Come on in.’”

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So you would think things really picked up in Delius’ quest to serve in the Middle East. But it was still almost two years before his persistence paid off.

“When I was at my officer basic course, I met a guy from Oregon who was going to Afghanistan the following year. That was the whole reason I joined. I wanted to go to Afghanistan because that’s where the 9/11 attacks originated. I wanted to try to make a difference. So about a year later, when the Oregon unit was getting ready to go, he called me and said, “We’ve got a spot if you want it.’”

Hurdle number two. “Georgia was fine with me going and Oregon wanted me but “Big Army” was slow to approve the transfer.”

It took six months to get the U. S. Army to agree to let him go with Oregon. The Oregon unit was about halfway through their yearlong mission when Delius finally shipped over to Afghanistan.

What were you doing?

“The reason I wanted this particular mission was because 90 percent of the time a JAG goes to Iraq or Afghanistan, we sit behind a desk. This mission was unique in that it was an Embedded Team Trainer (ETT).

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“My job every day was to go out every morning with an Afghan colonel and help him and the Afghan National Army establish the Rule of Law in Afghanistan and a court on the base. We went ‘outside the wire’ every day.”

Scott lived and worked in Kabul on an American base called The Alamo. The Alamo was inside a much larger Afghan army base with about 8,000 Afghan soldiers training at one time, which Scott said could be considered the Afghan equivalent to West Point.

Most of the Afghan military leadership trained under the Soviets in the 1980s. They had a much different view of how things work. Delius said, “We were trying to get them to understand that if somebody messes up, you don’t beat them up. There are other ways of administering justice.”

A large part of his job was helping to set up an actual court, from getting approval for a space, to furniture and to finding prosecutors and judges and training them.

“People come to me and ask why have we been in Afghanistan for so long.”

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“People throw around the phrase nation building. We are facilitating the development of a modern society. It’s a massive undertaking. That means everything in a country with no running water or electricity. The military has become good at it. To get modern standards – or even close – would take probably 50 years. Ten years or more is really nothing when you are trying to transform a society.”

Scott is extremely thankful for the support of his wife.

“We got married in 2002. Allyson knew about my commitment to join the military and she was supportive. When the opportunity for deployment came up she knew I wanted to do it and she was a 100 percent behind me. That makes all the difference.”

While in Afghanistan, Scott, with the help of his wife, organized humanitarian missions. Back in Atlanta, Allyson organized a clothing drive with the help of the Atlanta legal community. “She and the Atlanta legal community sent me tons of clothes and we distributed them.”

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How has this experience impacted your life and work, including your mediation practice?

“The military gives me a set of experiences that is different than the other mediators. It doesn’t make me better but just a perspective that is a lot different.”

“Having been deployed downrange in Afghanistan, I have an appreciation for what is important and what is not. When you live every day wondering if you are going to be blown apart by a roadside bomb, or shot by the people you’re trying to help – that changes you fundamentally. I have little patience for the mundane or minutiae.”

“I find that I can cut through things a little more quickly as a result of my experiences. Because of my history with plaintiffs as clients, I find it very easy to talk with them at mediation. And certainly having done insurance work for many years, I can talk with adjustors too.”

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Looking at the current state of our armed forces in Iraq and Afghanistan, Delius observed.

“I hope all our work sticks. The work and the sacrifice. And I hope that things progress and don’t go backwards. Sounds like we are still going to have a presence in Afghanistan which is what we need.

He explained the Status of Forces Agreement (SOFA). SOFA is an agreement between nations that when one of our soldiers does something wrong, they are not subject to the other countries’ criminal justice system. “Iraq refused to give us that so the U.S. said, ‘That’s a deal breaker and we are going home.’”

“As of now, Afghanistan is willing to give us that (SOFA), so that’s why we will probably have a presence there.”

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On the eve of another September 11th anniversary, all Americans need pause and remember the past and ongoing sacrifice of our military and private citizens who are taking a stand in that volatile part of the world.

Thanks Scott!

For more information on Scott’s Afghanistan experience, please visit http://www.deliuslaw.com/firm-news/.

August 27, 2014 No Comments

At Miles Mediation, we believe in creating a culture around family. When you walk in our doors, we want you to feel welcomed like you’re family and make yourself at home. So come on in, and get to know us better…

Why did you want to go into law?

I grew up watching the old Perry Mason epidsodes on tv and was captivated by the drama of the trial scene. My favorite book was To Kill a Mockingbird. I loved debate and argument and relished the challenge of matching wits with others.

What did you want to grow up to be when you were a kid?

I wanted to be a major league baseball player or a lawyer. It turned out that the baseball player was not in my gene pool.
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Where did you grow up?

Fort Lauderdale, Florida.

What does “family” mean to you?

My wife, Susan, and I have five kids each of whom we consider to be a gift from God. Family for us means an oasis of joy, laughter, acceptance, enouragement and love.

Team Leader David Nutter and his family saw his daughter Jane off to GA College in Milledgeville this year.

Team Leader David Nutter and his family saw his daughter Jane off to GA College in Milledgeville this year.

Why do you love your job?

I love my job because every day I get to work with great people, I get to focus on positive solutions, I get to think about a wide variety of interesting legal issues, I get to help people work out their disputes, and sometimes I even get a hug. What’s not to love?

What is your favorite food?

Pizza

What would you say your spirit animal is?
A dove

What is your favorite sport?

Baseball

How do you unwind?

Watch movies, read books, run

What is your favorite thing about Atlanta?

David and his wife Jane

David and his wife Susan

To find out more about David or to book him for your next mediation, click here:

August 20, 2014 No Comments

MEDIATION TIP #6 – WHAT’S GOING ON IN THERE?
by Glenn Loewenthal

I was speaking at a recent seminar where a question was asked by a Plaintiff’s lawyer: “Why do you spend so much more time in the defense room than in the plaintiff room; What are you doing in there?” I couldn’t help but laugh while thinking to myself that this is the same question, in reverse, from defense lawyers who think I spend more time in the plaintiff room. Before we discuss the answers to these questions, I first want to say that there is no pattern I have noticed in spending more time with one side than the other. Each case is different, and in some cases more time needs to be spent in the plaintiff room and in some cases more in the defense room.

Now, to answer the question. As mediators, we are doing many things in the other room. First and foremost, we are listening. We are listening to the lawyers, listening to the parties, listening to the adjusters, listening to anyone who has anything to say. In the initial caucus, it is the mediator’s job to learn as much as possible about the important facts of the case, the motives of the parties, and the objectives of the parties. Sometimes one or both sides don’t say much in the opening statement, though I think that is a mistake (see Mediation Tip #4). If the lawyers don’t provide much information in the opening, the mediator has to spend more time learning about their case. This is why the first caucus is the longest.

Another thing the mediator is doing is developing a rapport and relationship with the people in that room. For example, in the Plaintiff’s room, I want to make sure the plaintiff is at ease with the process and with me and my role. 99% of the time this is the first time the plaintiff has ever been through a mediation. It may be old hat to the lawyers and adjusters, but it is a nerve wracking experience for most plaintiffs. Not only do the plaintiffs need to be at ease with the process and the mediator, they need to know that their attorney is also on their side and the mediator can help with that. The mediator can also help the plaintiff to understand that the people in the other room are also invested in the process and that they are there in good faith to resolve the case. Once everyone in the plaintiff’s room is on board, the mediation will have a better chance to resolve.

In the defense room, the mediator is doing the same thing. We are building the relationship with the lawyers and adjusters and/or corporate representatives, many of whom we have never met before. While many defense cases are “round tabled” before the mediation, many are not. There are many mediations where the defense lawyer and the adjuster are not on the same page. The mediator needs to listen, ask questions, and find out why. One of the mediator’s most important jobs is to make sure that everyone in the defense room is on the same page.

A mediator’s job is much more than a courier of numbers between rooms. The mediator’s job is to build a consensus by the end of the day. In order to do that, we must time whatever time is necessary building relationships, listening to facts, ideas and concerns, and making sure everyone is on the same page and at ease. Tensions can build during a mediation session, and the mediator may need to spend more time in one room than the other keep things calm and running smoothly. We want to put out the fires, not throw more gasoline on them. Hopefully, this mediation tip will help you understand what is actually going on in the other room.

August 11, 2014 No Comments

While catching up on old episodes of Mad Men, I heard one of the characters refer to the Three P’s of marketing (product, price and promotion). This got me thinking, “Are there three P’s of successful mediation?” While the mediations we conduct daily at Miles Mediation can be quite complex, the more I thought about it, the more I realized that my most successful clients follow the Three P’s of Successful Mediation: Preparation, People and Patience.

1. Preparation

First and foremost, a mediation is the most productive when both parties have spent some time preparing their case. It demonstrates to all involved that you are serious about finding a resolution and that you are there to devote your efforts to doing so. I’ve noticed over the years that the attorneys who get the most out of their mediation generally do the following:

Prepare their opening. There are many lawyers out there who have the experience and skill to “wing it.” The rest of us need to review, refresh and rehearse. Your opening statement should be like a movie trailer. Give the other side a glimpse into what they might see at trial in the unlikely event you don’t settle; but as I will discuss later, don’t do too much to antagonize the other side.

Prepare their client. If your client hasn’t mediated before, take some time to explain the process to them. Tell them what my role is. Discuss candidly their case’s strengths and weaknesses, and remind them where the parties stand going into the mediation so that when they hear the first offer, they aren’t surprised. If they are prepared, we can get right to business.

Prepare the mediator. While I always appreciate a well drafted a mediation statement, you don’t always have to prepare a formal document. You could call me beforehand to lay out the key facts, critical issues, the players and their personalities. The more I know, the more effective I can be.

As Benjamin Franklin said, “By failing to prepare, you are preparing to fail.”

2. People

In many cases, one party often views the underlying dispute as a personal insult. They believe the other side has been indifferent to their needs, or worse, is out to “get them.” Whether justified or not, these feelings of resentment prevent them from analyzing their case objectively. As most mediations go to caucus immediately after the opening session, you need to make the most of the limited window of opportunity to address directly the other side. While preparing and delivering your opening, be mindful that your audience may be preoccupied with assessing blame or is harboring ill will toward your client. Don’t send them to the caucus room thinking that you were rude, adversarial or worse, disinterested.

Consider attempting to deflate the tension with a well-timed apology. Neither you nor your client have to give an elaborate mea culpa, or admit liability, but a simple, direct statement of sympathy, concern for their situation goes a long way to making the other side feel as if their concerns are being recognized and that they will be treated with respect.

If you do not feel an apology is appropriate then keep your opening neutral in tone and avoid making argumentative and potentially inflammatory statements. Save the discussion of how those facts might affect settlement for later, when I can present them and help take the sting out.

Remember Ben Franklin’s wise words, “Be not stingy in what costs thee nothing, as courtesy, counsel, and countenance.”

3. Patience

At some point in nearly every mediation I am asked, “Can’t we just cut to the chase?” Sometimes this frustration emerges early; other times it appears much later in the day. No matter when it arises, I always ask the parties to be patient and trust the process. It doesn’t sound like a very reassuring answer, but acceptance time is a key factor in mediation.
People resist change. They have certain expectations and as the process unfolds, those expectations are challenged. They may find these discussions unpleasant and as you might expect, they resist. It may take some time for the other party to come to terms with the compromise solution the parties are working toward. Closing the gap in one fell swoop may leave one party feeling as if they have conceded too much ground.

Have patience in the mediation process. Allow the parties time to digest the information that has been exchanged, fully understand the options presented, comprehend the potential results, and come to terms with settlement.

As Poor Richard himself once said, “He that can have patience can have what he will.”

Is there more to being successful in mediation than these three P’s? Surely there is. But these three basic principles can put you on the best path to achieving the results you and your clients want.

If you would like to schedule a mediation with me, please contact Mariam at (678) 320-9118 or schedule@milesmediation.com, or you can use the online scheduling app.

I look forward to working with you soon.

Chris

August 6, 2014 No Comments

Miles Mediation is up for vote with the Best Of 2014. Click below to vote for us as the Best Mediation firm in Atlanta!

Thank you for your support!

https://www.surveymonkey.com/s/Best_Of_2014?src=EMC-Email&cn=Incaseyoumissedit-DailyReport’s2014BestOf-officialballotenclosed&bu=DRO&pt=&et=promotion

July 28, 2014 No Comments

By Miles Mediation mediator Steve Goldner

“A good settlement is when nobody is happy.” How many times have you heard that said? Well, I take exception to that notion. Primarily because it’s the wrong standard and a very negative expression of the mediation process.

Efforts to settle a case ought not to be judged by a “ happiness” index. I truly believe that the hallmark of every successful mediation is “ fairness”. Both sides want to be treated fairly, albeit for different reasons. A plaintiff who feels he has been treated fairly by the process is obviously more inclined to settle. Happiness is a subjective emotion which the defendant can do little to address, unless it’s a by-product of being fair. For the defendant, it’s the flip-side of the same coin. The defendant would be “happiest” if it didn’t have to pay any money at all. (Just like the plaintiff would prefer to have not been injured.) Those cards have been dealt and are no longer in play. So, what’s the best way to resolve your case, regardless of which side you’re on?

Be fair. It’s not conducive to a successful outcome for plaintiff’s counsel to talk in opening about hitting a home run or ringing the bell in the case at hand. You may well do just that, but that’s for the courthouse—not the mediation setting. Likewise, it is not helpful for defense counsel to dwell on the summary judgment motion that’s in the works or the potential for a defense verdict. It stands to reason that good attorneys are acutely aware of these possibilities and you have probably already talked about these things anyway. After conducting hundreds of mediations, I can promise that these kinds of comments don’t send the message that you intend to negotiate fairly. It’s very difficult for the plaintiff, or an adjuster, to accept that they are about to be treated fairly when the day begins with thinly veiled threats.

Invariably, one or both sides will make mention of wanting to be fair. It’s amazing, however, how quickly that notion can disappear when the opening demand is absurd or the initial offer is ridiculous, by any standard. Although the temptation is strong to respond in kind, remember why you and your client came to mediation in the first place. Don’t waste a lot of time sending “messages”. Be fair, even when the opposition seems to have lost its valuation compass. You will find that your mediations are shorter in duration and more successful overall.

At the end of the day if you are indeed “happy” with the outcome, I’ll bet you a dinner (or drinks…) that you would have to admit that both sides acted fairly.

Good luck!

To book Steve for your next mediation or to learn more about him, click here:

July 14, 2014 No Comments

At Miles Mediation, we believe in creating a culture around family. When you walk in our doors, we want you to feel welcomed like you’re family and make yourself at home. So come on in, and get to know us better…

Why Did You Want To Go Into Law?

Initially, I just wanted to get back to Chapel Hill without having to deliver pizzas for a living, so I figured that getting another degree would buy me some time to figure out what I wanted to be when I grew up. Well that and the prospect of two more Final Fours.

What Did You Want To Grow Up To Be When You Were A Kid?

When I was in 6th grade I wrote an essay that said I wanted to be a lawyer. When I was in junior high, I wanted to be the President of the United States. When I was in high school, I wanted to be the next Bryant Gumbel and make a career in broadcast journalism. I am a lawyer and I’ve been on The Weather Channel as a guest speaker. Fortunately, I have found my perfect niche as a mediator, so I do not anticipate forming an exploratory committee and hitting up all my friends for campaign donations anytime soon. I’ll leave the White House pursuits to someone else. Two out of three childhood dreams ain’t bad.

Where Did You Grow Up?

I was born in Texas but grew up in Gastonia, North Carolina and Fayetteville, North Carolina before spending 7 years in Chapel Hill and one year in Charlotte. I moved to Atlanta in 1998. My family moved several times when I was a kid. All that moving made it very easy for me to meet new folks, adapt to new surroundings, and make friends. Those skills have served me well throughout my life.

Greg's Dad with Greg's Daughter

Greg’s Dad with Greg’s Daughter

What Does Family Mean To You?

Because I grew up in North Carolina, far away from my extended family, I always appreciated my folks and my younger sister, Melanie. She was my first friend and the one person I sought to entertain the most. I also learned how to develop a sense of marketing and business planning from watching her in her career as a pharmaceutical sales rep. I talk to my folks several times each week. My father was my best man in my wedding and I seek the wisdom and counsel of my folks as often as they are willing to dispense it. My dad inspires the practical side and my mom inspires the dreamer in me. The older I get the more I appreciate everything they did for me and continue to do for my family. The greatest gift I ever gave my folks was grandkids. They seize every opportunity to visit with my kids and share in their worlds. They are my model for being a husband and a father, as they recently celebrated their 46th anniversary. My wife is the one who encouraged me to seize the dream of becoming a mediator. She’s my biggest fan and keeps me grounded. And my kids are the best accomplishment I ever did.

Greg and his wife on Cumberland Island

Greg and his wife on Cumberland Island

Why Do You Love Your Job?

There’s an old adage that says, “if you love what you do, you’ll never work a day in your life”. Although I prepare diligently every day and remain disciplined in what I try to do with every single mediation, the requirements of my job fit my personality so perfectly that it comes easy to me. And I get invigorated doing what I do. So I love it. I look forward to coming to work each and every day and I never get those dreaded Sunday afternoon blahs on the eve of another work week. I don’t know if many people can say that. I know I am lucky and I pinch myself often so that I never take it for granted.

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Favorite Food

I love jambalaya, a cajun rice dish that was best prepared by my late grandfather. The best out there is from the booth nearest the Acura stage at the New Orleans Jazzfest, but I am always willing to sample anyone’s attempt. Like pizza, there is BETTER jambalaya, but there isn’t really any bad jambalaya.

What Would You Say Your Spirit Animal Is?

I took a quiz I found online and it revealed that I’m a WOLF. The explanation was as follows: “You have strength and stamina and ‘family comes first’. You form deep connections with close friends and family members and they know you’d do anything to protect them. You’re loyal, devoted, and passionate.”

That’s pretty accurate. But I also think I’m cuddly like a koala bear.

Greg's  Mom with Greg's Daughter

Greg’s Mom with Greg’s Daughter

What Is Your Favorite Sport?

In high school I played tennis and soccer. I last played ALTA in Atlanta until my kids were born. My favorite sport to watch, however, is Carolina basketball, followed closely by NFL football (partially owing to lazy Sundays and Fantasy Football). Some would argue that UNC hoops is like a religion for me. When played properly, it’s a beautiful game and you can apply so many lessons from the game to life. I coached both of my kids on their respective basketball teams, where I tried to instill the tenets of teamwork, selflessness, and good sportsmanship through the fundamentals of the game.

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How Do I Unwind?

I enjoy hanging out with friends and family. There are usually large gatherings where the kids are outside running around while the parents sit around and sip tasty BEvERageS and play corn hole. I usually end up playing DJ with an app on my iPhone, where I have more than 6,400 songs at my disposal. I love either getting folks dancing or waxing nostalgic if I play a song that hits them in their wheelhouse.

Greg and his kids at the High Museum in Atlanta

Greg and his kids at the High Museum in Atlanta

What Is Your Favorite Thing About Atlanta?

I love that Atlanta can be all things to everyone. As a father, I love that in the past three weeks my kids have been to Six Flags, Six Flags Whitewater, and Stone Mountain park—three completely different experiences, all no more than a half hour from the house.

To book Team Leader Greg Parent for your next mediation or to learn more about him, click here:

July 10, 2014 No Comments


We have exciting news!

Because his calender fills up quickly, Joe is making himself available weekdays between 8 a m and 10 a m — even on days when he has a mediation beginning at 10 a m. Call today to reserve your morning with Joe! (678) 320-9118

http://milesmediation.com/team-member/joseph-m-murphey-esq/

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