I stand apart from the rest

What Jeff Does Differently

I CUSTOMIZE EACH MEDIATION

A one-size-fits-all approach does not work. I prepare extensively for every mediation to make sure it is well-designed to meet the needs of all participants and maximize possibilities for a settlement. Lawyers often tell me, “This was unlike any other mediation I’ve ever attended.” My response is, yes, it’s been different from any other mediation I’ve ever attended as well.

I RESPECT THE LAW AND LAWYERS

Mediation is not the practice of law, so it’s important that mediators not do the same things lawyers do. A clear line of demarcation has to be established for the roles of the client, the lawyer and the mediator. A lawyer represents a client, and the mediator creates an environment in which the lawyer can do the best, most effective job of negotiating for the client — as opposed to the mediator doing the negotiating for the client. The distinction matters because the lawyer owes the client undivided loyalty; the mediator should respect the lawyer’s role and not try to usurp it.

I DON'T ENGAGE IN SHUTTLE DIPLOMACY AS MY ONLY TOOL

It is sometimes appropriate for the mediator to carry messages back and forth between the sides, but those moments are far less frequent than unskilled mediators would have you believe. As part of honoring the distinction between my role as mediator and the lawyer’s role, I encourage and expedite direct communication between the sides. Sometimes, it’s a matter of having all the lawyers and their clients talk to each other together in a joint session. Sometimes, it’s bringing the lawyers together to talk directly with each other, with the mediator as a kind of chaperone.

Either way, you need that direct communication so that messages are delivered clearly. In case there are follow-up questions, the people who know the answers best can respond. Also, the mediator never knows as clearly as the lawyer what is supposed to be confidential and what can be shared. You can maintain the distinction better than if you just send the mediator down the hall to deliver a message.

What Jeff doesn't do

I DON'T LIE IN ORDER TO GET PEOPLE TO MAKE DEALS.

There is a concept in mediation literature – believe it or not – called constructive deceptive. I will not elevate the goal of making the deal over the goal of helping people make clear, strong decisions, the best decisions under the circumstances. The irony is that the less you pressure people to settle, the more cases settle. Nobody wants to feel forced into doing something. They don’t want to be resentful when they decide. When people are given time and space to process the options, they’re more likely to settle than if they feel they’re being sledge-hammered for the sake of settling.

I DON'T CHARGE FOR TRAVEL TIME

Or costs associated with travel in the continental United States. Instead, I charge a flat per-diem of $6,600. That alone makes me very different.

I DON'T APPROACH MEDIATION AS A FEEL-GOOD KUMBAYA.

I blend a friendly personality and soft demeanor with a rock hard and rigorous legal analysis of the strengths and weaknesses of any issue. My role models are my first-year law professors, Betsy Bartholet, Abe Chayes, Bob Keeton, Lance Liebman, Charlie Nesson, Dean Albert Sacks, and, perhaps most of all, Phil Areeda.

From my professors, I learned, and still believe, that force, in the common sense of the word, doesn’t work. The only force that works well in mediation is the force of logic. In high-end cases, top-flight attorneys and their sophisticated clients are bully-proof. You can’t scare them into settling. So it’s not so much a matter of forcing cases to settle as letting them settle. The people who come to my mediations are not stupid. They’re smart and successful. They’ll make the right decisions, given the chance.

When my kids were small, their mother and I made all decisions and controlled everything.  As they grew older, their mother and I gradually withdrew so they could create their own lives.  So it is in the mediation.  In the beginning, the mediator occupies all space.  The mediator then withdraws, allowing the lawyers to do their thing.  Then the lawyers have to withdraw somewhat as well, allowing the clients to make their own decisions as to whether to settle on the best available terms, those the lawyer has been able to bring the clients as the result of negotiations which have taken place in the mediation.  The mediator engineers the process.  So yes, sometimes, we ask tough questions and present tough choices — more as agents of reality than anything else, and very often supporting the good advice lawyers are giving their clients.  That’s a far cry from bullying and leaving clients thinking that the mediator just thinks about settlement for settlement’s sake.