Q&A: Mediator & Arbitrator Jennifer Grippa
What do you say in the opening session to orient the parties to the mediation process and get things off to a good start?
In the opening session, I first give the parties a brief background on my education and experience. Knowing that I have nearly 20 years of courtroom experience and have dealt with the issues they are facing builds credibility and they can be assured I understand the legal arguments, strengths, and weaknesses of each side’s case. I discuss the benefits of mediation, stressing the efficiencies in time and costs, but most importantly the ability to take control of your dispute and use the mediation process to craft a resolution that meets your individual needs. Juries can be unpredictable and litigation costs can spiral out of control. Mediation gives you the power to take back control and negotiate a settlement on terms that you set.
I explain that the mediation process is completely voluntarily, that either side can walk away at any time, and that no one, not even their own lawyer can force them to agree to any terms that they do not want to agree to. I make it clear that if any agreement is reached, it is solely because the parties, not their lawyers, are okay with the terms. This gives the parties comfort that no one is there to decide their case for them or to force them into any settlements that they are not comfortable with. I also ensure all the parties have the capacity to reach an agreement and feel comfortable proceeding.
Thereafter, I explain that the plaintiff’s counsel will share any information he/she wants to share with the rest of the group and encourage the plaintiff to feel comfortable adding to what their lawyer has said. I often see parties speaking freely during the opening session and I encourage this, as it is an important part of the settlement process. Defendants and third parties are afforded the same opportunities to speak freely about their factual and legal positions and to add to what their counsel has provided.
Having the right to speak freely, uninterrupted, and in the confidential setting of mediation, the parties feel and know that they are heard, respected, and understood. I find this is critical to each party’s willingness to be open to discussing the disputed factual and/or legal issues and in weighing the strengths of their adversary’s case. I have seen many opening sessions where parties express remorse, regret, or shame for past events that brought the parties to where they are today and those authentic and personal expressions can often be the start for a productive negotiation on how to move forward from there, how to repair or rebuild the relationship, and how to end the legal disagreement.
What do you say to a party or attorney who wants to “walk out” because things are not going well? Are there times when a “walk out” is effective, or even necessary, for a party to make an important point?
It depends on where things stand in the negotiation process. As the mediator, I have confidential insight into both sides’ tactical positions. If a party or attorney wants to terminate the mediation because they are upset with their adversary’s settlement terms, but I know those terms are open for negotiation, I will suggest they respond, even if the mediation seems hopeless from their perspective. I have successfully settled countless cases where the lawyers told me a resolution was hopeless. I have had lawyers tell me afterwards that they had moments where they contemplated leaving because they thought a settlement was impossible, but somehow we managed to move through that impasse. I will never force a party to stay, but I will through my carefully chosen words and communication style work to calm emotions and refocus the parties.
Walking out of mediation out of anger or impatience can be shortsighted. There is a lot to be gained from the mediation process besides a negotiated agreement. Evaluating the credibility of witnesses, discovering additional facts, witnesses, or legal defenses, and finding out just how far your adversary is willing to go can all be very valuable in assessing the value of your case, weighing your risks, and making an informed decision for settlement purposes. I find that parties and attorneys who are prepared for mediation and understand that it is a process that takes time and could take longer than they expected have a better chance of success in finding a mutually agreeable settlement.
There are times when a “walk out” may be effective, but it depends on the circumstances. I have mediated cases where a defendant was unaware of the extent of the damages until mediation and a walk out resulted in a defendant later coming back with more authority, which ultimately settled the case. However, I have seen instances where “walk outs” have also backfired. I would encourage the parties to stay and see the process through. There is nothing to lose and there is everything to be gained in seeing what your opponent has and how far they are willing to go to meet your terms. Where a party starts in the negotiation process and the size of their moves does not matter; what matters most is where your opponent ends.
How do you deal with an attorney who is not giving you access to the decision maker? Example: An insurance defense attorney who is talking to an adjuster “by phone” but only when you are out of the room.
It is important for the decision maker to be actively engaged in the mediation. I strongly encourage the parties insist that the decision makers be physically present for the mediation. If that is not possible, I suggest the decision maker participate by phone in the entire process (in the opening session and in private caucuses). If an attorney is preventing the decision maker from participating, I will have a candid conversation with the attorney about the inability for the decision maker to make an informed decision without the benefit of all of the information gleaned during the mediation process. I will ask questions to understand why the decision maker is not participating in the process and explain the negative impact it has on the adversary’s perception of the decision maker’s willingness to take the case seriously and participate in good faith.
When the decision maker is not engaged in the mediation process, they do not have the benefit of the intangible insights that come with a face-to-face negotiation. Personally assessing the adverse party as a witness, evaluating the preparation and experience of the opposing attorney, fleshing out your adversary’s position and their willingness to make concessions, and analyzing the risks and weaknesses in your position through the lens of an impartial neutral are all things that are important to making an informed settlement decision. Depriving the decision maker of the ability to consider these things does not bode well for anyone involved. For that reason, I encourage the decision makers to be fully engaged from beginning to end.
What does it take to resolve an intractable dispute?
Resolving an intractable dispute takes a mediator with perseverance. One who is prepared, creative, thoughtful, strategic, and has an adaptable communication style. Every dispute is different and the approach needs to be adjusted based on those particular parties, their values, and their needs. I have resolved many intractable disputes and every method of resolution is unique. I prepare in advance of mediation to come in poised for advancing a resolution. Being an active listener and being flexible in the process is important. I reassess often throughout the mediation and consider other paths to get the parties where they ultimately want to be. Relating to the parties, building trust and credibility, and communicating effectively are critical to resolving an intractable dispute. That, and having enduring energy to never give up.
How can attorneys navigate the arbitration pre-hearing process?
Navigating the pre-hearing process in arbitration is much simpler and less formal than the civil litigation process. The beauty of arbitration is that it provides a more efficient forum for dispute resolution. Attorneys can work with the arbitrator to structure the arbitration in a way that best suits the parties’ needs and the circumstances of the case. Customizing the process during the preliminary hearing creates a roadmap unique to your case that maximizes an efficient and effective resolution to the dispute. At Miles, we recognize the reasons the parties chose arbitration over litigation and administer arbitrations in a fair and efficient manner consistent with those intentions.
What are your thoughts on mandatory arbitration agreements?
Mandatory arbitration agreements can be very useful depending on the type of dispute. Many companies choose this path to reduce litigation expense and keep disputes out of the public eye. Employment agreements, consumer contracts, and many business contracts commonly incorporate mandatory arbitration provisions. Businesses that anticipate a particular kind of repeat claim that can be resolved swiftly through arbitration, such as payment disputes or discrimination claims, find mandatory arbitration agreements useful. However, arbitration clauses are not one size fits all. They may not be helpful if you are in a position of needing substantial discovery and your adversary is not cooperative or if you are bound to a particular arbitrator or set of rules that are not a good fit for that specific dispute. Parties should consider their anticipated risks and craft their dispute resolution clauses thoughtfully to ensure they best meet their business needs.
About Jennifer Grippa
As a mediator and arbitrator at Miles, Jennifer Grippa handles complex disputes, including automobile, aviation, banking, bankruptcy, business/commercial, civil rights, construction, contracts, cybersecurity, employment, engineering and construction, environmental, estate/probate/trusts, false arrest and imprisonment, federal law, government, insurance, intellectual property, international, medical and nursing malpractice, personal injury/torts, premises liability, product liability, professional liability, real estate, securities, surety, third party criminal acts, trucking, trusts and estates, and wrongful death matters.