This transcription of the podcast with Mediator Bob Palmer discusses working with a mediator, how to prepare yourself and your client for mediation, the process of mediations, Ohio statute’s regarding mediation and much more. Read along or listen to the podcast to get a more in depth look on how working with a mediator may help your case and your client.
Sean Harris – Hello and welcome to Civilly Speaking, the OAJ podcast. I’m your host Sean Harris. Today we’re privileged to have Bob Palmer from Columbus to have a conversation about mediation from both a mediator’s perspective and from an advocate’s perspective. Bob, welcome.
Bob Palmer – Thanks so much Sean, glad to be here.
Sean – Tell us generally, as a mediator how do you approach mediation and the mediation process.
Bob– What I try to do is get the lawyers involved, and get the parties involved well before what we traditionally consider the mediation session itself. I find it much more likely success will come about if people are prepared least to the extent that they have thought about this and spent some time with their client talking about this. Second most important thing everyone understands the ground rules and how it’s going to work and the third most important thing is that I provide lunch.
Sean – That seems to be critical. Bob, you mentioned the word preparation especially in regards to clients and I would imagine you see varying degrees of preparation on both sides of the aisle.
Bob – Absolutely, I will say though, Sean that the defense, as a rule is better prepared to negotiate than the plaintiff’s side.
Sean – And when you say better prepared you mean they’ve talked about jury verdicts and values and where they see the case ending up?
Bob – With respect to talking to the clients?
Sean – Right.
Bob – Certainly from that viewpoint although I’m talking more about talking about how the negotiation will go. The good lawyers on either side have figured out roughly where they want to end up and obviously where they are going to start to get there. But they’ve already thought through their moves. If the defense offers this, I’m going to do that. If they do this, I’m going to do that. They’ve played a little bit of chess before they come and I can assure you that the good adjusters that have been around the block, they’re all over that. And of course they’re operating with some confines and within their confines they usually come well prepared, knowing what their moves are going to be; sometimes without regard to what the plaintiff does.
Sean – Maybe a lot of the time without regard to what the plaintiff does?
Bob – Sometimes.
Sean – What should a plaintiff’s lawyer do as far as preparing the client?
Bob – I think it’s very important that the lawyer understands that the mediation gives a client an opportunity to express what they want to express as if they were going to be in the courtroom even though they are not going to be and it may only be to the mediator. I think that is one of the important functions of a mediator is to let both sides really, but typically more the plaintiff’s side because the other is an adjuster and a lawyer and there isn’t really a client there to be able to feel free to express themselves. Emotionally and psychologically that goes a very long way toward getting a case done. Cases get done in my opinion because of big pictures. This is really good to put this behind you and move on with your life kind of attitude. What do you really want to accomplish with this litigation and if it’s vengeance, well that probably isn’t going to work too well so let’s talk about what we can do and how we go forward. And if somebody comes in blind to this process and how this process can help them do that, it’s harder but it can be accomplished.
Sean – And that emotional aspect to usually as you say, the plaintiff’s claim is very important though it is nothing that a jury can award, it’s nothing that is required to settle the case but it helps psychologically.
Bob – Absolutely. I believe emotions drive mediations. It may be the emotion of anger that may prevent the settlement at some point or it may be this strong emotion of wanting to get this done and that the last thing I want to do is go into a courtroom for example. I often say to my colleagues and to my clients that the only people that like to be in a courtroom are lawyers. That it can be a not nice place as we all know for those who have stood in there many times.
Sean – I found it interesting that you used the word process to describe mediation and I wondered that if you are looking at mediation itself as a process supposed to as an event that happens on a particular day.
Bob – Excellent point. The process starts from day one. Not only is that a fact, it is also legally recognized by the Revised Code Section 2710 which deals with mediations in Ohio.
Sean – And tell us about that, you were telling me earlier that to the surprise to a lot of folks, that Ohio has a mediation statute.
Bob – Definitely, and it is based on a uniform statute that applies to a lot of states that the principle purposes of it is to establish confidentiality and privilege rules and those kinds of things. But it makes it very clear that it applies from the moment we start talking about mediation. For example, I find it very useful to have ex parte, telephone conferences with each side prior to getting together in the session and through that process I can learn a lot about what the real issues in the case as opposed to reading 100 pages of summary judgment motion which may be fascinating of course but not particularly helpful in getting it done. The mediation statute and the confidentiality applies to those conversations just as much as it would to any emails we might send before, during or after, so I think a lot of lawyers think of mediation as just being the day, the event and I think if they are more open minded and embrace the process of a mediation they can really help their clients a lot and if they help their clients a lot, then they are helping themselves a lot.
Sean – Do you in your mediation practice require the adjustor to be physically present at the mediation?
Bob – As much as I can require that I always want the decision maker, you know the person who has the power to make the decision to be there. Sometimes, frankly I’m told that they will be there and they aren’t there or they don’t come with the authority that is clearly going to be needed to get the case resolved. It doesn’t happen a lot but it does happen. At that point, if appropriate, I will get on the phone and talk to people during the mediation or depending on who the lawyer is and what kind of assurances that lawyer can give me, we deal with it that way but it is so important to have the decision maker there.
Sean – You mentioned mediation statements earlier. Do you prefer that they are shared with all counsel? Sometimes one side wants to keep their position statement confidential. What’s your position on that?
Bob – I think it depends on the case. I respect what the lawyers want to do in that regard. If one side wants to keep it confidential, then we will keep them all confidential, that’s fine. That’s one of the things you flush on in those pre-mediation calls but that’s one of the tools you have to convince the other side, and it applies to both sides, that they are at risk. If you can’t convince them they are at risk, they aren’t going to pay you what you want to get paid so you have to figure out how you are best going to do that. Am I going to bring a prop, am I going to prepare a statement of some kind or share some particular things with them or how am I going to play these cards out to make them award of the risks as I see it? I literally had a mediation not long ago an adjustor said to me why should I pay them that much, I’m not at risk, they’re not putting me at risk, they’ve shown me nothing to put me at risk and so as a mediator I go, I need some documents, I need something to show that they are at risk because I believe they are at risk but I can’t say that and have nothing to show.
Sean – Speaking of risk, I’ve used from time to time jury verdicts to help guide a mediation and usually if they are favorable I will show them to the other side and if they are unfavorable, I will use them with my client.
Bob – Exactly.
Sean – You’ve seen people use those?
Bob – Definitely. It is very common and certainly we’ve had years of low plaintiff verdicts that get tried. A lot of cases get settled and you can’t forget that.
Sean – So here’s a question that comes up when you say that. Do you get a feeling by the adjustors or the defense counsel that they are looking at jury verdicts the same way as we on the plaintiff side? Do they perceive them the same way we are? I often wonder about this because I think we are getting fairly decent results in mediation but if they are looking at the same verdicts that I am than why are they paying this much in mediation.
Bob – Because they perceive they are at risk.
Sean – That’s the key.
Bob – That’s the key. As we all experience it. If you have a case with good facts and you have a good plaintiff: having a good plaintiff is an ace . . .
Sean – That still matters.
Bob – That still matters big time and I think always will. It comes up, you know these are really nice people I think the jury would like them. It becomes a big issue but you have to have some other stuff as well. So I think their view of the verdicts and they will use them for their clients and they explain it could be really bad if they let it go to trial. Think about what kind of cases most of them are and typically if you are mediating a case, you are not mediating a $2,000 client. You’re mediating a more significant case and so there are a lot of ways to put the other side at risk. Everything I do as a mediator applies to both sides, which is pretty interesting. It’s all about putting them at risk.
Sean – Have you seen techniques at mediations on either side that have been particularly effective or particularly not effective?
Bob – Yes, to both. I think it all starts and this part of how I approach mediations. The whole idea here folks is to try and resolve something, not to beat each other up, right? So there’s a lot of controversy in the mediation world about joint session opening statements kind of things and I disfavor them because I think more often than not it poisons the well and even if there is something valuable to say, I haven’t seen anybody on the defense side who welcomes them.
Sean – Or certainly who have changed their position based on an opening statement.
Bob – It just further entrenches them in the position they came with. I just went through that and it was a new lawyer in the case and he wanted the opportunity to say his piece in front of the adjustor and show to the adjustor that he was a great lawyer. I reluctantly agreed to allow him to do that and I cajoled the defense into listening. And it backfired I think but you do what you do. So opening statements that enflame the other side are bad, really any opening statement like that is bad and particularly bad if it is the defense coming after an emotionally shell-shocked plaintiff. It’s just not going to work because plaintiff’s counsel will rightfully be upset about it. The other thing is the “this is our bottom line,” approach when you know it’s not and I believe you can certainly take positions and enforce your positions but you should never have a bottom line because things may change and you never know but your bottom line will be higher as opposed to lower so this whole notion about bottom lines and crossing lines in the sand are very aggravating to mediators at least and are not very effective so those are a couple things that come to mind.
Sean – Bob, I imagine there are some mediations that over time, stand out in your mind and I know that you and I had a relatively colorful one. Can you share how that mediation went?
Bob – Poorly. In a word, that was a unique situation for me and I hope it was a very rare occurrence for you. We’ve all been there I supposed but it boiled down to an injury case and premises case so the whole slip and fall issues that you get on the premises case with liability but the liability looked fairly strong but the injured party was a professional person who thought that she knew best, shall we say and we spent a couple hours, I recall trying to convince her that her maximum recovering given caps and all those things we have to deal with, was X and she kept saying to us that she didn’t care about X. She wanted, as I recall, 3X to settle the case and we went and I believe you tried a lot of tricks and I tried every trick I knew and this person would just not move. I was faced in the defense room with people that wanted to get this case settled and they came with some real money to get the case settled in spite of all the issues in the case. They were willing to negotiate but once we did the super high start point and it was time to move and this woman wouldn’t move, they decided they weren’t going to move and so we were stalemated out. Despite our best efforts to convince her to move at least to see where we could get the defense to go and to see if we could tempt her with that amount. We failed because she knew better than her able counsel did and she really didn’t care what the mediator said.
Sean – I’ve heard about where the defense refused to make an offer but I’ve never heard of a case where a plaintiff refused to make a demand.
Bob – No that was a unique situation. The old defense thing is “well, have them make a real demand and then we will come back at $10,000 less.” We do deal with that as well but that was the only time something like that has happened to me, sorry Sean.
Sean – Yeah, I apologize. Here at civilly speaking we end each podcast with a series of five questions designed to get to know more than Bob Palmer the mediator. Are you ready?
Bob – Ready.
Sean – Question number one. What was your first car?
Bob – Chevrolet.
Sean – What year?
Bob – 1963.
Sean – What color?
Bob – It was an awful green and white.
Sean – And what became of it?
Bob – I traded it on a Volkswagen Convertible, 1968, yellow
Sean – Moving up!
Bob – Moving up.
Sean – Question number two. What did your parents do for a living?
Bob – My father taught at The Ohio State University Medical College for 45 years and my mother was the quintessential 1950s homemaker. She was involved in a lot of charitable causes.
Sean – Where would you travel that you have not already been?
Bob – Croatia and Australia.
Sean – What do you like about Croatia?
Bob – I’ve heard nothing but wonderful things about there and I’ve talk many people who have been there and I met a guy skiing who has a wine business over there and he thinks I should come to Croatia and I think he’s right. He’s on to something.
Sean – Question number four. What do you like to do when you’re not lawyering?
Bob – I’m an avid snow skier. I unfortunately got addicted to hitting a little white ball a few years ago so I do enjoy trying to hit it more regularly. I like sailing, I grow flowers, and I love to travel and dabble in the arts.
Sean – Question number 5. Who would you want to play you in the movie of your life?
Bob – Robert Redford, of course.
Sean – Yes, of course, it is just that simple. Bob Palmer it has been my pleasure and thank you for joining up here on OAJ’s Civilly Speaking.
Bob – Thank you, Sean.