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Gene, thanks for joining us today. Oh, thank you so much for having me. It's a pleasure to be here.
Yeah, it is a pleasure to have you and you come highly recommended from our mutual friend,
Veronica Cravener, before the listeners who don't know you yet. How would you get us started
by telling us a little bit about yourself and what you do? Well, I'm a commercial and insurance
mediator. I'm and arbitrator. I am based out of Los Angeles, but especially thanks to Zoom.
You can mediate anywhere in the world. I am an lawyer in Southern California and obviously
Los Angeles, but I've practiced for like 37 years before I decided to go from being an advocate
to a neutral full-time. And so I've been mediating on a full-time basis since 2017 and I love it.
It's great. Should have done it earlier, maybe, but whatever life is great. So it's wonderful to
help people settle their disputes. Now, this is great. And I realized as I was going through
some of the episodes that I didn't have enough of my fellow mediators on the podcast. We had a lot
of lawyers, a lot of people in sales and contract negotiation, but it's really great for me as a
fellow mediator to have more folks who are experts in the conflict resolution arts coming on the
podcast and talking about that. And can you set the stage for the listeners and kind of tell them
what your typical day would look like in terms of the cases that you handle? Well, sure. Most cases I
handle are in litigation already. Some are pre-suit, which is great. Get in there early and try and
resolve the dispute before you have to resort to the court. But most of my mediations are on Zoom,
actually. I have an in-person one tomorrow, but that's only the second since March of 2020. So I've
had over, I don't know, over 300, 350 maybe that have been on Zoom since March of 2020. And just like
this, I have the people come in at whatever the time is. The council and their parties, we do some
nice introductions. Make sure that there is a live person that they're negotiating with, especially
when companies are involved. And then at least out of California, we tend to not do joint sessions where
the parties, the lawyer might say what their case is and the other lawyer says it. And that's gone
by the wayside, I would say for many years here in California, we just maybe do separate breakout
rooms. And or if it's in person, do different rooms and then go back and forth and the negotiations,
bring the parties together, you know, that kind of thing. But ultimately, try and figure out what
each party's really, what their needs are and what their wants are. And then work on something that
at the end of the day, they can leave ideally with a settlement or at least being closer to a settlement,
if not that day, that it's the stage is set for them to ultimately be in settlement or know that
they can't settle. And they need right now to do a summary judgment motion or fine. That's what
court houses are for take it to trial or on appeal, maybe, you know, and see what happens.
This is great. And a couple of things, I want to focus on the last couple of things you just said,
where you said, okay, as a mediator, you're trying to find out what their needs are and what their
wants are. Really want to hammer home to the listeners that those two things are not the same thing.
They're very different. They're very different, even though they will be proposed to you as though
everything is a need. An expert mediator has to be able to distinguish between and
out want and in need. And then going further, just I love the more realistic perspective on what's
possible because you're setting those expectations going in because a lot of times people say,
all right, if I get a deal, that's a success. If I don't, that's a failure. If I resolve the conflict,
that's a success. If I don't, that's a failure. If that's the case, then there will be very few
successful people in the mediation world focusing on progress. So yes, it'd be great if we can get
a settlement, but as long as we're moving closer to a potential agreement or clarity and understanding,
that's still a win. And even if we end the mediation saying, all right, now I know for sure,
this is not good as subtle. Let's go. That is better than before too. Absolutely. And clarifying facts,
especially when you're in the mediation context where you have confidentiality. And again,
every state has its own confidentiality rules and laws. So that can, that's another whole topic
for discussion at some point. But presumably you have confidentiality on what's being said. And so
you can have that kind of discussion to clarify facts that what may come out if you ended up in trial
or not, or that can lead to a settlement where you never really thought about something the way
the other side does or vice versa. Oh, Gene, now I have to ask this question. And I want you to
answer it from the professional side as you as a professor of mediator, understanding that you're
in the judicial process. So there's a court there too. But I also want to approach it from a
less structured perspective where we might not have discovery. So what is a fact? Oh, well,
let's see, get Aristotle in on this. What time of fire started that could be a fact. How much
was paid for this or that? Here's an example. I had a ransomware case that I was mediating.
Let's see, that one was, I think that one was already in suit. Some of those come pre-suit. So a
ransom had been paid because of a data breach. And one of the attorney, you know, attorney fees are
an issue. Well, it became clear that more information needed to be provided to the other side who
was being asked to pay attorney fees like some bills that were redacted maybe or things like that.
That would be a fact. What was it that the other party paid and what was charged so you can see
what you're dealing with in terms of damages? Now, liability also have factual things too.
The name of the corporate entity or not, you know, are they the same person or entity that's the
insured? Yeah. Okay. I wanted to see where you would go with that because it's a strange time in
the world where there is so much disagreement on what even is considered to be factual and what
a fact is, what's truth, what's real and those type of things. And I think it seems like it's getting
murkier and murkier. At least in the legal world, we have the benefit of discovery or at least the
threat of discovery. So even if the person isn't being forthright, we can let they know, hey,
the truth is coming one way or another. You can either let us know now or it could be just a
painful process and a little bit. But in the real world, especially when we think about, let's say,
interpersonal conflicts or workplace conflicts, we have a lot of different perspectives. What was
said, what wasn't, what was a promise? What was just chatting without commitment? Those
things. Right. And one person's truth, truth may not be another person's truth, you know. And
of course, perspectives, there's usually more than two-sized-dairy story, you know, multiple
sizes to what really happened and the way we perceive things, the way we actually said them,
the tone of the voice, there's so many things like that. If it's that kind of a case and some of the
employment cases are a good example, you probably will never get the parties to agree on what
really happened because what they perceived, what they observed, what they experienced,
is their experience, is what they believe to be the truth. So to speak, and the truth might not be
the proper words to use there, the phrase, but and the same with the other side. But then I will
use a lot of the types of approaches of, look, you're just going to have to agree to disagree.
You're never going to convince them of X and they're never going to convince you of Y. So let's
just accept that for what it is, but you're in litigation or you've got this dispute that's going
to go to litigation or arbitration if you don't resolve it. And I promise you, if you settle this
today, when you wake up in the morning, you will feel a load off your shoulders. You can get on
with living your life, get on with your business, you know, whatever it is, those kinds of things.
I've even used once in a, I'm not sure I would do it again, but depend on the
probably the ages of the people fall because they might not know what I was talking about. But in a
sexual harassment case once and I was talking to the claimant, wonderful, very nice person. But as
an example, to emphasize this, asked if she'd ever seen that movie South Pacific and that song of,
I just want to wash that man right out of my hair, you know, it's, you're not even familiar with it
probably, but that or, you know, just if I use song lyrics a lot, even the Rolling Stones, you can't
always get what you want. So, you know, let's see what we can get. Just different things like that.
People usually laugh when those kinds of things are said.
No, that's good. And breaking the tension in a mediation can work wonders with humor. And that can
really get people to feel a lot more comfortable engaging with you. And I really appreciate the
fact that you said sometimes you just have to agree to disagree because a lot of times we go into
these conversations thinking that we are the sole arbiter of truth in the interaction. And our only
goal is to get the other person to see things our way. And that's our only path to victory, which is
in many cases a complete impossibility. But just kind of getting to that point where we say, hey,
okay, you see things one way, I see things another way. And based on your perspective and my
perspective and our experiences, we're just not going to agree on this. But can we find a way
to move forward even though we don't agree on this little part of the overall interaction? And I
think coming to terms with that and being transparent with that reality can help people to move forward
and still engage in the process, even if the other person isn't seeing exactly eye to eye.
Exactly. And the thing with litigation is, I mean, unless you're in a relationship, you know,
whether it's family, friends, business partner, you know, something like that where it's personal.
If it's not, if it's a car crash or, you know, defective product or something like that,
you're probably never going to have to see that person again. Even if it's a personal thing,
maybe you're both going to go your own way. And just knowing that get this off your plate,
get it out of your head, you know, think of all the stress this is causing you. And you'll never
have to see this person again. I mean, that freedom is an amazingly wonderful thing or can be a
wonderful thing. Yeah, absolutely. And I think we get caught so caught up in the fog of war sometimes
that we lose sight of the relief we will feel once we put this behind us. If they, like you said,
it's a weight on our shoulders. It holds us back. And I think we also fail to appreciate the
impact it has on the people around us. If we are stuck in litigation and this massive conflict,
it's not just you, it's your partner at home, it's your family and friends, they're all experiencing
it because you're not at your best when you feel like you're just at war all the time. And just
making sure that you continue to have that perspective of hope and there's something on the other
side can help people reorient during the conflict and focus more on what they can do in this moment
to move forward rather than vilifying and breaking down the other side in a way that doesn't lead
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Apple podcasts, or wherever you get your podcasts. Right, whether it's a lawsuit or just a dispute,
think of how negative it is to be in litigation because you, if you're the plaintiff, feel that you
were wronged in some way, and you need whatever the lawsuit can bring for you for a satisfying,
and I'm not saying that that's not appropriate. It can be very appropriate. But most cases settle.
Most lawsuits do not go to trial. So it's so much better to recognize that earlier than later.
Think of that guineth, Paul Troll case that was just in, wherever the Utah, I think, and there was
an interview of the plaintiff afterwards, and he was quoted on the news, who was asked, was it worth it?
And he said, absolutely not. No, I think perhaps because I was a practicing attorney for so many years,
and the stress of prepping for trial, the invasiveness, if you will, of answering discovery,
going to a deposition, all these things that your life is not your own if you're in litigation.
And again, court houses are there for a wonderful purpose, and I'm not demeaning that at all,
or minimizing that at all. And that's our, hopefully, our justice, or civil litigation is different,
for obviously the criminal, but recognizing that most lawsuits do not go to trial. If you can
possibly settle it, or if you've released Explore, I think it's wrong not to explore settlement early,
and maybe, but at least early, and then again, on the court house steps, if you've gone that far.
Agreed, agreed. And one of the things that we talked about before is the importance of
pre-mediation preparation. And I know the basics of pre-mediation preparation are going to be
similar to what you would need to do to prepare for a negotiation. And I think it'll be really helpful
to give listeners an idea of what you go through before the mediation, to put yourself in a position,
to be successful in the actual negotiation. Well, one of the things I think is that is so important,
and this is only since I became a full-time mediator, in fact, on the United States federal court
central district for California on their ADR panel. And they do require that the mediator
and the parties, whether jointly or separately, hold pre-mediation conference calls.
Now, when I was in practice, we never did that. So somewhere along the line, that started to become
a thing. And now, almost every mediator, I know does that. But I think that is so important.
In fact, I had one call this morning before we started this. And I've got another one after we're
finished for tomorrow's mediation. And what that does is I talk privately to each side. I will be,
I'm happy to talk to them jointly, the council jointly, but most of the time they prefer just to talk
with each council separately. But it gives a chance where they've already submitted a
mediation brief or a mediation letter to let me know what's happening. I've read it and can kind of
drill down to still what the crux of the issue might be. And what documentation do they have maybe
that will help convince someone of this or of that or support their position or contradict the other
parties position? Again, it comes back to establishing facts, I suppose, as much as possible.
And so that's important. The pre-mediation brief of some sort is important, but it's very important
that the attorneys talk to their clients in depth and properly prepare their clients for mediation.
And I would say even so, go so far as to say, prepare the other side for the mediation.
There's one plaintiff, lawyer, who recently was giving a presentation. And he pointed out,
and he's a plaintiff, personal injury lawyer, that he makes sure to send the share of the mediation
brief with the other side about a month in advance. Because in his cases, there are always, well,
generally, there's no absolutes, right? So generally, there'll be an insurance company on the other
side who's provided the defense in these personal injury cases for whoever the defendant might be.
And he knows that they, not just a lawyer, defense lawyer, but the insurance company will need time
to review the position. Maybe they round table it. But both sides need time to prepare themselves
as lawyers, reasonably evaluated, find out what judgment potentials might be in that area of the
country or that type of case, and then come in. So by the time I'm getting it, I'm talking to them
in a way that ideally they've done that homework. And if not, maybe suggesting some of the homework
that they could do based on my fresh eyes looking at the case, you know, and ask a lot of question.
Yeah. Oh, this is great. So let me provide a bit of a summer here. So in the premediation process,
some of the things we talk about are first reading the premediation letter or brief,
drilling down to the crux of the matter for both of the parties, getting documents, data,
evidence, and other supporting information to support or substantiate the points that they're
making. Hopefully the lawyer preps their client for the mediation and preferably they also prepped
the other side as well. And it could all happen a month in advance or more. And I think for a lot
of people when they think about the preparation that will go into it, they would think about you
in your office kind of by yourself reviewing the case files and things like that, more of a solitary
approach. But really, it seems like this is almost a more collaborative approach to preparation
before the actual mediation. I haven't thought of it that way, but it probably really is.
And when I do say, prepped the other side, I'm not picturing one lawyer telling the other lawyer
what to think or whatever, but just making sure the other side understands your position and
the reasons for your position and vice versa, you know, that kind of thing, communicating, talking.
As a, when I have these calls with the lawyers, I want to know how they had any communications
with the other lawyer about settlement yet. You know, what's the mood of the case? You know,
are the lawyers who are operative with each other? Is it a contentious case? What do they think
might settle it? You know, there's all sorts of things, all sorts of questions you can ask.
Yeah, oh, this is great. This is great. And one of the other things that we mentioned when we were
in our pre interview phase, our pre interview prep, we were talking about power of using
bracketing or ranges in these types of mediations and negotiation. And so can you paint a picture of
what that means, practically speaking, and then talk about how it actually applies to you in your
mediations? Sure. There are probably as many definitions of bracketing in mediation as there are
mediators, okay? But that said, you know, in mediation, you would go back and forth generally and
offer or demand start with the demand and then an offer and a demand and an offer. And maybe you're
making smaller progress and it's like how long is it going to take to get to what I call the dance
floor where you're in the realm of reasonableness for the final dance floor? I mean, certainly if someone
is way out here in the insult zone and someone is over here in the credible zone, that's great,
you know, but you've got to inch them a little, keep inching them closer together. And so bracketing is
a way where, and again, there's so many ways of doing it, but in a more traditional way,
lots of times it's phrased, look, if they will go to act, you know, we will go to why. And so you've
got X and Y. So maybe it's 50,000 and 100,000 for round numbers for the bracket within which you will
then negotiate. And then you could, you know, keep doing that kind of thing. And those are not
real offers or demands, so to speak, they're what I call ifs, you know, kind of like if, look, if they
would go to something in this range, I personally don't like the phrase bracketing so much as I like
ranges. Because as I do say to people, I must say, who in America likes to be told what to do? Nobody,
you know, so when the old traditional way of saying, look, if they go to 25,000, then we'll go to
a gazillion, you know, or whatever it might be, 100,000, you know, and it's like, no, no, no, no,
I do not encourage people to try and tell the other side where they need to go, but rather,
what would be a reasonable range that you think this case should settle in? And then that forms a bracket,
so to speak. And maybe then go to the other side, see what there's is. Maybe they overlap, you know,
maybe using this example of 50 to 100, maybe someone's at 75 to 150, so you see you've got a 25,000
dollar overlap in there. It's a way to have hypotheticals, offers and demands, but narrow it,
so then someone can actually say, okay, I'll make a concrete demand or I'll make a concrete offer,
you know, look, we'll do whatever, because everybody sees the way it's going and it does shorten
the negotiations, but there are lots of rules for rules, quote unquote, bracketing. And, you know,
like if you've got a bracket this much, then you should never go down below what you said would be
your low end or your high end, no go above your high end, depending on which side you're on. And
that I personally, like I said, I prefer to deal in the ifs, look, if they would go here, would
you go there or can I propose this as a bracket, because that's a phrase people are familiar with,
but explain that I look at it as a range, you know, things like that. Yeah, it makes a lot of sense,
and essentially what we're doing is we're setting the, like you said, the playing field, the dance
floor, what's realistic? Let's only, let's agree to only play within this range, so we don't waste
time insulting each other offers that are way outside of the realm of possibility. And as a mediator,
you have a great opportunity to get a little bit more candor and vulnerability from the parties
when you're using shuttle diplomacy, interacting with each person individually, going back and forth,
so they're not posturing in front of other people in a negotiation. When you think about
utilizing this type of strategy with ranges, what would that look like in a more traditional
negotiation setting? You know, I think it's probably a matter of knowing where you want to be,
and it's true for anything, of course. Where do you want to end up or where will you not go over?
You know, where's your tipping point that you won't exceed? That puts a bracket in your mind already.
So if someone had offered 100,000 and someone had off demanded 100 and offered 50, well, that's your
bracket. Yeah, no, that makes sense. And I know there have been times where I've used a range kind of
like a soft anchor, where I might say, well, depending on the entire package that we're talking about,
I could see this falling between this and that in general. And I kind of say, say like that. And
I think it's more just recognizing that we could use that methodology in a bit more of a
concrete, established manner within a mediation, especially as a mediator, because you have that
authority to kind of set the stage and the ground rules for the whole interaction. In a negotiation,
where we're both more or less on the same playing field in terms of you're a negotiator,
I'm a negotiator. Leverage might differ. More or less, we're both negotiators here. It's harder
to establish a range and say, Hey, your offers don't go above this or anything like that. That's
tough to do. But just starting off and saying it's making your offer, especially if you have some
questions where you're not 100% sure saying, all right, based on what we need. And after hearing
your perspective, it seems like we something in the range of this to that might be realistic. I want
to see how that lands with you. You could use that as an opportunity to gather some information
in that situation. Absolutely. That'd be a great use of it. And of course, keep in mind that it's not
always about the money is also very often about the non-financial aspects of it. You know, how you
leave a person being perceived or for themselves or whatever. One of my friends once settled a case
where a child had died. This was in Louisiana. And anyway, for that family, of course, no money.
And there's true and any loss of a life or major injury or whatever, no amount of money can
bring that person back to life or maybe at all properly compensate for the loss. But that's what
we have in our world to use. But what this family ended up settling for, I mean, they they
range for some money thing, obviously. But a family, a week for the family with the other siblings
who were still, you know, they're lost their, their sibling and the parents and the children to go
to Disney World for a week and have that time together as a family. And they were very grateful for
that. Wow. Wow. That is, that's incredible. That is incredible. I appreciate you sharing that.
And again, it just shows the power of empathy blended with creativity in a negotiation. We cannot
bring back the child, but we can help you to create a memory with other members of your family.
That's really powerful. Right. And finding joy again in their lives, maybe, you know, but empathy
and creativity are key, I think, for any mediator and really for a negotiator.
Absolutely. Jean, this was great. I really appreciate you coming on the show, sharing your
expertise with us. Again, it's always great to have another mediator on the show. It's nice to
meet you. Yes. Likewise. And before you go, please remind the listeners about what you do and how
they can get in touch. Sure. My website is lawler L A W L E R A D R dot com. And I'm on LinkedIn.
And I've got rose to resolution closure and certainty that's a podcast and a YouTube videos.
So feel free to get in touch with me at all. And I would just suggest that if you are interested in
other types of programs like this at no cost, in addition to the ones that you would see here,
maybe check out Will work for food, the new possibilities hour. Will work for food.News.
Amazing programs. All things, negotiation, life and various, various things. And there is no
charge. It's only asked that a donation, if you're able, and if you're not, know what's keeping
chaps. So if you're able to make a donation to a food bank, and so far, almost $400,000 has been
raised of which we've been told. And that's over four million meals. And that's this was started
during the pandemic by Natalie Moton Armstrong, an American lockdown in Normandy, France at the time.
And then Jeff Kachevin, a mediator here in Los Angeles and I co-moderate.
Sorry, Agamiri. Always she schedules things. And she is living in Canada. So it's quite
international. This is great. Yes. Everybody check that out. We'll have links in the description
for all of those websites. We have jeans website so you can check out her ADR offerings. And then
also Will work for food as well. I think that's a great opportunity. And I appreciate you bringing
it up and sharing it because food insecurity is important everywhere. And I don't think enough
people really understand how serious that is. So I appreciate all of the work you do and
thanks again for coming on the pod. Thank you so much. It's a pleasure being here with you today.
And kudos to you for what you're doing. This is great. Thank you. Wait, wait, wait, wait, wait.
Now, before you sign off, I have something to tell you that I've never told you before.
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