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Mediation Strategies - From Mediator Selection to Preparing for and Conducting the Mediation through to Completion

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Mediation Strategies - From Mediator Selection to Preparing for and Conducting the Mediation through to Completion

This 60 minute course discusses a variety of Mediation Strategies from selection to preparing for and conducting the mediation. This course will provide an in-depth discussion of the mediation process in order to provide a better understanding for the effective use of mediation as a tool.


Leslie Berkoff
Moritt Hock & Hamroff LLP


Shaun Salmon - Hey everyone, I'm Shaun Salmon, the Vice President of MCLE and professional development here at Quimbee. Today, I'll be joined by Leslie Berkoff, partner and chair of the Dispute Resolution Practice Group at Moritt Hock in New York. She's also the former chair of the Bankruptcy Practice Group and she serves on the firm's management committee. During the next hour, I'll be asking Leslie to talk us about mediation strategies including an in-depth discussion of the mediation process. How to prepare a case for mediation. How to prepare a client for mediation and more. And just to note, I did ADR competition in law school so I might nerd out a little with you today, Leslie. So welcome.

Leslie Berkoff - Thank you so much.

Shaun Salmon - How are you? Oh, you're welcome. And should we get started? Anything else you wanna add about your experience before we jump in?

Leslie Berkoff - No, I think the only thing I would add is that I've been doing a dispute resolution for probably 25 years and that's not my whole law school law career but I was at the forefront of when mediation started to become adopted by the bankruptcy courts and you can't turn into a different court anywhere nowadays without seeing mediation or presumptive mediation or dispute resolution. So it's kind of nice to be on the forefront of an area of the law that was so under-recognized and under-utilized for so many years.

Shaun Salmon - Amazing. Well, thank you so much. And let's just start right at the top, right? So what considerations should parties keep in mind when they're selecting a mediator?

Leslie Berkoff - So, you know, I think people make a mistake sometimes in undervaluing the benefits of mediation. And to me, mediation is an important process and it starts from the minute you decide to go to mediation and for the selection of the mediator. So don't pick Bob Smith or Sally Jones just because you've used them before. I think you have to look at what your case is about, what your clients are like and might be receptive to, and not just your client, the other side's client, because the mediator needs to appeal to both parties. So he or she needs to be received well, adhered to well, followed in terms of in instruction and respect.

And there's a lot of different things I think we need to consider. So talk of about, the kind of style you want. I mean, and again, each case is different. So is the mediator facilitative in their style? Do they help the parties along? Do they just sort of nudge them to things? Is that gonna work for what you need? Do you need a more evaluative mediator? Do you need somebody that's going to sit down maybe with your client and with the other side's client and go through risks and benefits and talk about the law, apply the facts to the law, give somebody a reality check on what they're doing in their case. Does the mediator have a mix of styles? Maybe that works. You have to look at what their credentials are. You know, if this is a sophisticated defamation case, a construction case, you can't use the mediator that you use necessarily for your contract dispute. You may somebody that understands the area of law because going back to one of my first points, how are they gonna help evaluate things? Or how are they even gonna understand the issues and dispute between the parties if they don't understand the basic principles that apply to the dispute in question? You may wanna look for personality traits.

Let's be honest, if you've got all men in the room and all gray-haired men in the room, I don't know. I hate to say it this way but from you know, unconscious bias, they may not listen to a younger woman. I wish that was different but they may not but they may listen to a woman that has 20 years experience or has credentials or has done significant mediations. If your clients are of a distinct cultural background, you may want somebody that can appeal to them in that regard as well. Nothing should be sacrificed for the expertise and the understanding the end of the day but these are all really, really important considerations. So that's some of the things I would think about.

Shaun Salmon - So, I mean, would you consider or should you consider interviewing a mediator?

Leslie Berkoff - That's a really good point. I am surprised sometimes how many times that does not happen. Now I have a fair amount of attorneys I work with on a regular basis, both on either side. And so, they're familiar with me, they know my style, they like what they see and I will work with them on a repeat basis. But every now and then I do get people reaching out to me and saying, "Hey, we'd like to talk to you." So first thing understand, there's no issue with it, there's no ex parte communication in mediation and by that, I mean, it is okay. The mediator by nature speaks to parties privately. Arbitration, litigation, wholly separate, you don't speak directly to an arbitrator. You don't speak directly to the judge in your commercial dispute but in mediation, even when I'm in the process, I'm gonna speak to people separately. So you could and I have been interviewed. And there's no bias, I'm not making a decision so they could get on the phone and tell me anything they want about their adversary, their case for purposes of interviewing me. And it isn't going to taint thing because I'm impartial. And again, I can't make anybody settle.

I will make one thing that is really, really important just a technical point. There is a case and it flows outta the bankruptcy court in one of the larger cases where people shared confidential information with a mediator before they were retained. And that information was then requested because the mediator did not get approved, did not get appointed. And the other side sought discovery. So being mindful that what you're sharing is not like the grand secret at the bottom of your case. Pretty sure that if you tell the mediator, the sides don't get along, that you think their case is nonsense, that's not private. They know that already, you're going to mediation because you can't agree but I would keep that in the back of your mind in terms of what you're sharing until such time as the mediator is appointed or retained by the parties, so that the mediation privilege in the agreement that applies or the governing rules covers it. And also feel free to ask for recommendations. I've had people say, can I speak to somebody else? Absolutely. You know, with permission, if it's public, I can get them people to talk to.

Shaun Salmon - It's really interesting and what about, I mean, you mentioned actually, this is the perfect segue. You mentioned that like, you know, you work with many attorneys over and over again. I mean, is there any case in which someone should just retain a mediator that they've had success with previously? Like where it just makes sense to go back that well?

Leslie Berkoff - Yeah, I would think that there is, so there's a couple of situations. Bankruptcy in particular tends to be unique and I don't just do bankruptcy mediation. I do mediation in the commercial courts as well but in some of the bankruptcy cases, they're called mega cases. So cases like borders for Sun Edison or I'm not in Boy Scouts but cases like that, where they'll have a panel of mediators that will help handle five to 600 specific cases with the debtor. I will come across this, I'm working with one plaintiff the entire time and I come across the same defendant, some of the same defendant, sometimes lawyers represent multiple defendants or lawyers that I've worked with in the past. And every now and then I will get a client on the defense side saying, well, wait, aren't you the plaintiff's hired gun, you are their mediator? And my response to that would be, do I work with them frequently? Yes. Quite frankly, in the bankruptcy world, I work with most of these people in cases all the time. But in that particular case, what I've said to people is, it's a benefit because if one side is comfortable with me, that means they trust me. That means I know how they work and approach cases and when I go back to them and convey information, A, they accept it as true. They will listen perhaps to how I evaluate something, they've respect my opinion. They wouldn't be using me repeatedly. And so if you wanna be successful in a mediation, a mediator who parties have trust in, can rely on and will accept their evaluation or evaluation, I should say of the facts at hand really can help benefit you. Somebody who the parties don't know and don't necessarily trust has to first build that trust up. And that happens a lot but you're ahead of the game. And I find sometimes that I don't have to learn the parties if I know them and have worked with them before and it benefits both sides equally, it really does. If people understand the mechanics of the process and really approach mediation with an eye towards success, they should understand how that can indeed benefit them.

Shaun Salmon - So should the parties prepare for a mediation? And by prepare, I really mean the like more in depth or do they come in sort of like clean slate and if they do prepare, what should they do?

Leslie Berkoff - Oh, please prepare. Here's what I would say to you. The parties that do not prepare, first of all, by the way, and we'll talk about this a little bit later, mediation statements, almost every mediator wants a mediation statement. The party should be preparing one. And we'll talk a bit about what goes into it. But if you look at mediation and just say, eh, serve, give the mediator my answer, I'm gonna send her a letter, couple pieces of information, good luck to her. And my client's just gonna walk in the door. You are basically saying and I've done this, I've still saved the case and I've mediated and gotten a resolution but you are putting yourself and your client behind and you're not doing any good to the process. So I'm gonna dig into this just a little bit, if I can, 'cause it's one of my biggest pet peeves. First of all, you should be explaining to your client what the processes about. And if I'm getting ahead of things that will cover later, we'll just skip them or but-

Shaun Salmon - That is totally okay. But question really quickly. For you, when you say you, do you mean the attorneys or the mediator? Just wanna clarify.

Leslie Berkoff - The mediators, my goal here is to educate advocates. So any you, it's not me, it's the advocate. Perfect, thank you for clarifying. I will tell you, I'll give you the best example without names and no one will ever figure this out, I do too many of these. It was a major law firm, it was a major company and I walked into the private session. We didn't have a joint session for this one, the parties wanted to meet separately and the CFO for the company looked like he was gonna have a heart attack in my office. He was so stressed. So panic stricken and I looked at him and I said, take a breath, take a beat. Lemme talk to you about what's happening today. And I walked him through the process and the man went from here to here and sort of, I could feel this, and he's like, I thought a decision was happening. I thought you were making rulings. I thought this was the be old end all. I thought they were gonna examine me. Like had no idea what was gonna go on. And I'm looking at a partner at one of a largest law firms like how did you not tell him? Like, I didn't say that, I never embarrass anybody in front of a client I won't do that but his temperature level, his stress level went all the way down. We ended up resolving the case after about a full 12 hour day but he had no idea.

Clients should understand the process 'cause if they don't, they're gonna be really upset. For example, you're sitting in someone's office, it's different now that some of these are on Zoom but your day is committed to the mediation. There's gonna be breaks, there will be time. You should do other things. So when I've had people come to my office not realizing that there could be a two hour break while I'm with the other side and they've got nothing, not even a book to read or work to do, they're rather annoyed. You need to tell your client what's gonna happen. The mediator's gonna go here. The mediator's gonna come back. We're gonna talk. We're gonna have time. We're gonna do all of that so that they really understand the process, so that's the first thing. The second piece is going to be making sure you have the right person in the room, okay? So you've asked Bob to come to the mediation. Bob knows nothing about the facts and Sally should have been there, we've got a problem. If Bob and Sally should both be there, that's a better decision.

So in preparing, the parties need the right players in the room. And that doesn't mean bring everybody in. It's again, easier now that we're on Zoom but have your accountant available. Sometimes this tax implications for what we're doing. Those kinds of things, you should it be making sure that if you need Timmy in accounting, just in case a question arises but he doesn't have to be on camera then Timmy knows he's gotta pick up the phone. I cannot tell you how many times we go to a mediation and someone hasn't like dug into, I'll make it up. They claim you owe them for six invoices and nobody's looked at them or of figured it out or said, oh, by the way, there was a problem with one of those and we discovered halfway through the process. I did one recently where the plaintiff had a complaint. There were all these claims and it was only when I went into private session did the defendant say, oh no, there's no March invoice, there's a June one. And I'm like, where was that in your papers? Like, why would you not have said that so they could have checked it. I could have checked it. You could have had the info. It delayed the mediation an hour.

There also should be an understanding of what do you wanna accomplish? What are your goals? What do you wanna get out of it? And by that obviously, a successful resolution but sometimes mediations go several days. Maybe you need to figure out a certain piece of information. Maybe then you need to take a break and get more information or if there's something you really need from the other side to prepare, ask the mediator to see if you can get it. A lot of mediations are done either early stage discovery or with no discovery. But if you can't respond to the plaintiff's claims, not because you need 10 depositions and not because you need seven bankers boxes, but maybe you need five documents or a copy of a contract or an answer to a question. That's some of what the parties should be doing.

Shaun Salmon - That was fantastic, thank you. And actually, I think this is a good follow up to like things the parties should be doing. Talk to me about risk analysis. Like should they be performing any kind of risk analysis in advance?

Leslie Berkoff - Oh, absolutely. I can't tell you how many times people come in and are like, I'm good, we're just gonna win. And I'd be like, well, have you considered they're citing second circuit precedent that is completely opposite to what you're asking for? And if we don't resolve today, what happens? Do you make a motion for summary judgment? Is there a motion to dismiss in your future? Is the court gonna require discovery even if motions are pending? Are you then look at a trial for the next three years? So there's two kinds of risk analysis. There's what is your likelihood of success? Because everybody believes their own BS when they're chatting but a good lawyer should be able to sit down with a client and at least say, look, we've got four causes of action. I'm good on two of them, I think I got a really good shot but we got risk on the second and the fourth one is a throwaway. And so, they can bucket things to talk about. If we could come out with X because all of this else is risk, we would be good. Where can we get, what's our zone?

Now on the defense side, it may be, I may end up losing X, Y, and Z. I can only pay. This is all I got to pay or this is all, they get a judgment, they're gonna shut down my company. You've gotta kind of think of what happens if you don't resolve in a reality check and any good lawyer can tell you, I've won cases I should have lost. I've lost cases I should have won. Any lawyer that tells the client 100% you're gonna win is nuts because you don't know what the judge is gonna do on any given day. You just don't, they're not predictable creatures, they're human beings. And maybe something appeals to a judge differently in that moment in time where they see something differently. I mean, that's part of why in the value of mediator, I think can be very, very helpful. Not 'cause you're talking to the judge but to give somebody an objective analysis of just recheck yourself, stop believing your own BS. And there's a lot of other pieces that go into risk analysis. I call it the business case for settlement.

So oftentimes you'll spend six hours with everybody and I'll get them to here. We're a hundred thousand apart or 50,000 apart, whatever we're apart. Line in the sand, we're done. And then I have to say to them, okay, well, we factor in you think your lawyers are gonna run you 50, they're never gonna run you 50, I know. They've just said that, get it in writing. It's not gonna be 50. They're not anticipating motions and anticipating delays, the extra depth, the time, it may be double that. No disrespect to them, it just never works out that way. And then think about the fact that on both sides, you're now not running your businesses. What are you doing? You're sitting with lawyers, you're taking depths, you're sitting in depth and everybody's gonna be in each other's depths. And your six employees that run your business are gonna be in depths. And then they're gonna be waiting through boxes of documents that your lawyers are gonna have to go through. And then you're gonna sit in a courtroom if you get past your summary judgment motion and you're gonna sit there and you're going to sit in the stands and you're gonna be there for the whole trial. And then you're gonna wait. So you are looking one to two years that you are not focusing on your actual business. So if you can get within a reasonable range, not a football fields apart but reasonable range, isn't there a business case for both sides to say, it is more than I want to pay but I will do better focusing on my business and moving forward with life than if everybody is distracted by this litigation for the next umpteen months.

And so, there are things that you call BATNA, WATNA and BATNA. What is the best alternative to a negotiated agreement? Well, best is if I can make a motion, the court rules and I win. Okay, but then they appeal it and you go all the way up the appellate chain. What's the worst alternative to a negotiated agreement? I lose, my motion is denied and I go to trial and I spend the next two years litigating. And what's the likely alternative to a negotiated agreement? Maybe we make a dispositive motion, we win some, we lose some and we're still in trial. So those are the kinds of things that really lawyers and clients should have some real discussions for. And I'm gonna add just one more thing before we move on to another topic. What I've heard before is if I go into mediation and we don't settle, I've wasted all this time. Oh, the world's coming to an end. Look at all the time I've wasted, I've prepared a mediation statement. I've looked at my documents. I've thought about my case. And my answer is yes, think about that. You've looked at your documents, you've written up an outline of the strengths and weaknesses of your case, the weaknesses you've shared with the mediator. You figured out what you think your key docs and witnesses could be even if you're early stage and the other side has now identified information for you that maybe helps you if you don't resolve, helps you understand who you might wanna depose because in your mediation sessions, you're gonna be saying, you know, we had every right to cancel the contract and we told you that and they're gonna come back and say, no, no, no, Bob Smith was there and he says that never happened. Well now, you know, you wanted to post Bob Smith and I'm not suggesting by this, that you use mediation for this purpose.

All I'm suggesting is that you are not wasting your time in mediation. You are focusing your analysis, you are focusing your client, you are understanding the other side's position better and they're understanding yours. And you are getting someone if you haven't evaluative mediator who is literally maybe sharing with you almost like early neutral evaluation what you should be thinking about in your case. I had one recently where we mediated, we didn't resolve at the mediation and I was so frustrated, if you would, that I wasn't making enough headway I called the other side and said, I'm gonna ask you to really think about whether you think that document works for you. And we settled the case because they were 100% wrong.

Shaun Salmon - That's really interesting. So you did mention like maybe pivoting, I'm thinking like, what about presuming? Like, should the parties presume that the mediator will just be able to review a complaint or motion and handle it from the pleading? Like, is there a place where the parties, where they should assume that or where they do assume that.

Leslie Berkoff - I see that a lot, you know, I'll get a copy and again, it doesn't always come at the complaint. Answer stage could be a motion stage but you're 100% correct. I'll get like a copy of the complaint and a I'll get a letter with a paragraph that says, we're gonna win, there you go, we're good. And in their answer, they got a bunch of nonsense. You know, if you want the mediator to be effective and again, talking about there's different kinds of effective, there's resolution, understanding your case, you should be giving the mediator some piece of information. Some, and I'm not formal. I don't care if it's a formal statement, get me info.

So if you wanna append the complaint 'cause you just want me to read your facts, I'm good with that. You have a motion that you made that outlines it? I'm good with that. But then kind of give me, look, I think this case controls, I think we got a good shot at X, I think these facts help us. Focus the mediator because sometimes mediators a flat fees, sometimes we're hourly. I don't wanna read 12 bankers boxes and charge your client for that when you could have distill it for me. I don't need to understand every minutia point in the case. I need to understand enough to have thoughtful conversations with the parties to focus the discussions. And the more you share with me, the better. The only other point I'll make on that is I usually have a shared statement. So it's going to the side and it should be settlement focused and I have a my eyes only. And we'll come back to that about what the benefit of a my eyes only is.

Shaun Salmon - That's fantastic and actually, I feel like your answer to that last question on like being able to review something from the pleadings entirely versus distilling it out. I feel like that leads into mediation statement, right? So like what should go into a mediation statement? What's its purpose and possibly if it does, how does it differ from distilling out, as you said, like 12 bankers boxes, right? Like, is it a mediation statement purpose to do that or is it something else followed by that?

Leslie Berkoff - So I've repeatedly emphasized to parties that it should be settlement focused. So unlike when you're going before the judge and you're telling him or her, you know, this is the rule of law, this is why my motion wins, this is all of the stuff. I mean, I need to understand why the parties feel they're gonna win or lose. But the purpose of the mediation statement is different. It's to give me the guts of your case, the highlights of the law and you know, well, you may cite a judge a string site 70 paragraphs long, give the two cases you really need me to read. Give me the two statutes that govern, not 700 things that you're doing for purposes of appellate and all of that. And remember the other side is reading this statement and ideally, the client on the other side is reading the statement.

The goal of that is that you should be conveying in a distilled fashion the basic points why you should prevail. You have a strong argument. And if you come across in a litigious advocacy voice, you're not gonna be heard. If you come across in a settlement focused voice, which says, look, I get that there may be risk because these are not, these can't be used against you. But I believe that we have the better argument. You want the other side to see you as someone who understands what's going on so that they can communicate with you to maybe get to a settlement. And so, it's really important not be tone deaf on this and not be belligerent and not be aggressive the same way you might with a court for purposes of advocating a position because I'm not making a decision. I just need to help figure out a path that gets both of you to the end in terms of that. That's what I need to do.

Shaun Salmon - And I think that actually, you're like just trucking through here like through my thoughts actually. I mean, should a party be candid with the mediator and how candid?

Leslie Berkoff - That's good point. So everybody's always, and by the way, when I email parties, I give them depending on the mediation, things I want them to answer. Tell me about your case. Tell me why you're gonna win. Tell me your strengths. Tell me your weaknesses. I know you're not putting your you know, blow up the firm point in the side that's gonna see the mediation statement, they're gonna see. So I usually use a my eyes only statement. And in that one, be honest with me, please. I know people don't always wanna do that but come back and say to me, look, I get it. I get, I may lose on those points but I really think I have a good argument on this. Or hey, guess what? My client can't compromise on some of these because they'll cause a loan default. Or I have to worry about, if we settle, could it be private? How do I not make it in the public eye? Or my client's teetering on bankruptcy, this will push them over the edge. If you don't share things with me that are game changers or hot button issues, I'm gonna pick a trajectory and I may not go the way you need me to go. Sometimes when people tell me, look, we really need X out of this. Then I know that, because X may not be obvious to me. Then let me figure out how to get you X and the rest of it can wait. And so, that's just so much more helpful to me and if I'm helped, you are helped.

Shaun Salmon - So and I have a follow up to that for you which is, have you ever had, I'm trying to articulate this correctly. I'm literally like, have you ever had a situation where like two my eyes only statements were so conflicting in like the deal breaker need, like for really valid reasons where it was like really difficult and it actually did end up being successful, there was a path forward?

Leslie Berkoff - Yeah, no, absolutely. So once in a while I've had that and sometimes you just can't get it settled because they just need the judge to rule on things. Sometimes you can narrow the issues. You can say there's 10 issues, okay, can we get down to two? Can we decide that you can resolve on these and you need the court on this one? And sometimes the best thing in a mediation is you can be creative. So I'll give you an example. I had a mediation once and I'm just being thoughtful so I don't wanna reveal anything, obviously. It was a little unique but it was three parties. So there was a lender, there was a trustee and a creditor. And it was, everybody had different needs out of that. And nobody thought that we would get it done because everybody's needs were so inter passive. But what I discovered during it, that one of the sides needed something that the other two thought had absolutely no value. They're like, why would anybody want that, we don't care. And what I was able to do is say, I can get you what you need. I want you to give them this and they literally like, that has no value. I said, trust me as the mediator that I think it has value.

So if you don't care, you're giving ice in winter and that piece got it done. It wasn't even on the radar of anybody but I tried to come up with something different based on listening to one of the sides and we were able to resolve it because I got them something that nobody thought had value and it mattered to them. Sometimes if they're so different, is there a way to give them something else that isn't in the papers but is there something else? And by way of example, maybe you can't agree on the dispute over a contract but maybe they need a different kind of business relationship going forward. And maybe you can do something else that a court could never give them, that gets them something of value that allows you to compromise the others. So sometimes the creativity, I mean, and that goes back to understanding what you need. So, you know, going back and saying to them, okay, well maybe we can't fix the fact that you owe them half a million dollars. They want their half million, they need it. You don't really have it but you just mentioned, you're having a supply chain issue and they're subsidiary actually sells those widgets. What if I get you a lucrative contract there, you can buy the widgets and they can take a piece of that back towards the money that they're owed? I mean, it's creativity. Sometimes you just can't get it done but sometimes you can find something and that goes back to people being reflective about their own cases.

Shaun Salmon - Absolutely, and I do feel like you hear this. I mean, maybe I'm also just thinking about like sample cases back in law school a long time ago. But like, you do hear a lot about a party that finds value in something that everyone else in the room is like, oh, like that's important to you? This old, I don't know, piece of costume jewelry, right? Just for like, as an example. And it has some sort of inherent personal value that helps solve a problem that's a lot larger in terms of monetary value somewhere else, right? So that's really interesting, thank you for sharing that. I feel like we should pivot just a little to, I mean, in the COVID world, right? What happens if a mediation is remote? So would you be mindful, like what should you be mindful of in order to properly protect your client's interest? How does it change like the room, right? How does that impact it?

Leslie Berkoff - So a couple of things. So when I do it, we're doing it by Zoom. I don't think anybody's really using another format 'cause Zoom is the only one that generally allows you to do breakout rooms or at least the successfully. I have a set of Zoom instructions that I send out to people so that they understand and I ask them with their clients to make sure they understand how to use Zoom. Honestly, two years into COVID, I don't know how anybody doesn't know how to use Zoom. I really don't but I send it out anyway. It's really important that confidentiality be preserved. And so, you need to be in a room where no one else is, unless they're part of that process. In my office, people can see who's sitting in the conference room. They can see who's hearing and not hearing. So I will walk through, I have a list of questions I ask people, are you alone? Is anyone else in the room? Can anyone else hear you? They need to not be there and I respect the fact that sometimes it's harder, you don't have a door you could close but maybe you're sitting in an apartment that's open air. But if no one else is there, I don't care. If not, you have to maybe put a headset on. So people can't hear. You don't want people uncomfortable that some third party, not signatory to any of the agreements or governed by the orders is hearing confidential information or seeing things. Zoom allows you to record, I don't record. I review this with the parties that I am not recording. I will ask the parties to confirm that they are not recording. I will let them know not to use the chat function because Zoom retains the chat feature, I can't control that. And we use cell phones and text messages just so I can tell people not to convey substantive info but so I can tell people I'm coming out of a room, I'm going in a room, do you need me? Just for communication? Just so nobody accidentally says anything in a chat that goes inadvertently to the other side. I talk about the fact and it's in my mediation agreements as well, that information exchanged remains confidential.

And I will tell you, I have been shocked occasionally, I had a mediation and in the middle of thankfully, it was private session. Somebody's husband was walking around in the background. I don't know how that would've been received if the other side had been in the room. Her own client was in the room but that would've made somebody very upset and uncomfortable. Lighting is important because I had one party in a mediation who was totally in shadow and it was intentional. It was raised by the other side multiple times that they were uncomfortable with his veracity. As a mediator, I'm very mindful of that. And we ended up not being able to resolve regardless but I reached my own conclusion that part of the reason we couldn't see this person's face is because he was not being honest. I didn't share this with the other side. At some point, I did share it privately with his counsel that he was not being well received because we couldn't read facial expressions. I will even cover at the start of the mediation, either in a joint session or with both parties, the dynamic has changed. So when I'm sitting in a room with people, they can see I have a binder, I'm taking notes, I'm doing all of these things.

By the way, I shred my notes, I tell the parties that. Mediation is concluded and they signed an agreement or it's terminated, my notes will get shredded, all the good stuff's in the notes. But I will say to them, we're looking at a dot in our screen. All of us can't stare at that dot the entire time and although we may intend to, and because for me, when I'm doing my mediations, I've got their notebooks here, my notes here, another screen up here where I may be looking at things, a cell phone where someone may be texting me they need me in the other room. I will apologize in advance and tell people, my eyes are going to be everywhere. I'm not playing Candy Crush, I promise you. But if I push back my computer, so you could see everything I was doing, I'll be this big. And you'll see, it'll be very distracting. But by highlighting it, by talking about it, nobody misperceives what's going on and the same applies to everybody else. So it's important to cover some of this because of the remote process so that people feel more comfortable simply because all they've got this box.

Shaun Salmon - I mean, okay, first of all, I laughed like four times, I was muted. I laughed like four times while you were talking. That was very, very funny. And of course, I feel like the example of the client in the shadows made me think of like a documentary, like the documentary.

Leslie Berkoff - Face is obscured to protect the innocent, that kinda thing.

Shaun Salmon - Yeah, exactly. So, okay, well, I think that you've discussed really well in that like remote setting, things that you do to advocate, post mediation statement for clients in that remote setting. Are there any other jobs you should be doing as an advocate for a client post mediation statement, anything that's different in the real world versus you know, online?

Leslie Berkoff - Absolutely, well, this would be, so pre-mediation, before we start the process and you submitted your mediation statement and maybe you've also given the my eyes only, there's nothing wrong. By the way, I will usually in certain circumstances, I shouldn't say usually, at times I will reach out to parties ahead of time maybe because I want them thinking about something, maybe because remember mediation sometimes is very early in discovery and I've read both sides and someone's talking about, oh, if I only could see X. Well, I'll talk to one of the sides about saying you know, maybe could we get them X? Or if I know based again, upon shared information with me that they really need to know why, I want them to focus and think about it.

I may even look at this and say, hey, I'm concerned you don't have the right people in the room or whatever it may be, But there's nothing wrong either with the parties reaching out to the mediator to say, look, and again, I do an email about whether we're starting in joint session or private and asking for input but it may be okay to reach out and say, please, don't put them in the same room, they'll kill each other or again, and that's physical but even online or you know, my client is very uncomfortable with the process. I need you to understand how to appeal to them. Sometimes I've had lawyers say to me, it isn't me, my client doesn't understand. I need you to help me get through to my client 'cause they're not listening to me. So aside from having prepared your client with we've talked about and prepared me, don't think that there aren't things that could happen beforehand that might be very, very helpful by just communicating with the mediator. So don't forget about that.

Shaun Salmon - I mean, I guess the next question kind of does go to the client side, right? So we talked about being an advocate. What about like preparing your client for mediation? And I know, I mean, clients are just, every single one is different. A lot of the job of being an attorney itself is managing personalities, right? And so like, how do you prepare a client for mediation and how can attorneys help the mediator in that way?

Leslie Berkoff - So again, we talked a little bit earlier about making sure the client understands what a mediator's role is. And by the way, I cover all of this at the beginning of my mediation and I tell people, maybe everybody knows this but I cover it because what I say to them is, litigators will understand this. If I always do something as part of my practice, then I can always attest that I have done it because that's what I always do. So I don't have to remember a specific instance, did I talk about confidentiality or recording? Because it's part of my mediation coverage speech and therefore I always do it so that you've heard it. So talking about the kinds of things that are gonna go on, we've covered it a bit but also think about with your client, who's gonna talk? Is the client gonna talk and not? So I encourage clients to speak and when we talk about opening statements, I'll talk about this a little bit more but you should have a discussion with your client. How active do they wanna be? How comfortable are they with this? Do they want to sit in the room with the other side? Is that helpful to them? Maybe they need an apology and let let's be clear. Apologies don't just come in matrimonial cases. They come in all sorts of business cases as well. Do they need something? So make sure your client, separate and apart from risk analysis, separate and apart from all of the other things, understands how they wanna come across, what they wanna be doing and what you wanna do to assist them client in getting what they need out of the process. Ideally to settle the matter and if not, to move down the road. That's-

Shaun Salmon - What about, oh, sorry. Anything else?

Leslie Berkoff - Nope.

Shaun Salmon - Okay, cool. What about opening statement? Like do you want to make an opening statement always? Never? Sometimes.

Leslie Berkoff - It's case dependent. So I will always ask the clients, not the the clients, excuse me, the advocates, what their thoughts are on joint session. And I'll take what they say but sometimes I literally supplant my view as mediator. And what I always say to them is I've read both sides, I'm telling you, I think this has utility. I'm 90% accurate on this one. Usually I am. And I don't treat everyone the same, I truly don't. I did one recently where I dragged people. There was a brief joint session, very brief opening statements. And at some point I brought everyone back in the room because the facts got so complicated that I needed the parties to literally walk through a everything together. We got the case settled as a result. We ended up essentially with two real heavy joint sessions. So let's assume I have given thought and I may want a joint session and I may want an opening statement.

Here's how I think people need to approach opening statements. It's funny, everybody away from them, oh, everybody knows the issues, blah, blah, blah. Understand that the only time the other side and when I say other side, I mean, lawyer and client, the only time the other side is going to hear from you and client is either hear or in a courtroom and opening statements 'cause in a deposition, it's a question. There's no recitation of the law. There's no positions being advocated or presented. The only time your client gets to speak outside of mediation is in a deposition or on a stand. Well, those are contained and constrained processes. They're answering specific questions. Most litigators are telling them yes, say yes, no or answer as little as possible, right? And you're only answering the questions that are asked. This is an opportunity for you to reach the other side's lawyer and client because up till now, most of the time that other client is hearing everything filtered through their attorney. Half the time, they're not reading the papers, let's be clear, they're probably not.

So if you want the other side to really hear you, an opening statement that does two things. A settlement focused opening statement with a risk analysis from a lawyer that can articulated properly and not aggressively or litigiously can be very well received by both the lawyer on the other side and the client. And if your client is a good speaker and knows their facts, they should speak. Because I have had mediations where people have walked outta joints session and one side has said to me, I don't want that person on the stand. They're gonna be believable, they know their stuff. In fact, they may sound better than my client. You may settle a case because now they see what their witness looks like. Now they see the person that's telling the story to the judge or the jury.

Now, if your client is a terrible speaker, they should shut and not say a word. And that may be and you can still have a joint session with just the lawyer talking but this is stuff you need to know. And I will always say in the beginning, I encourage clients to speak, I don't overrule attorneys, but when we get into private session by the way, your clients should speak because as much as you think you know the facts, your client knows them better. And when I'm in with the client, it's a confidential private process. There is very, very little that can't happen. That can be said, that is gonna hurt, other than the client lying or saying something, whatever, it doesn't leave that room. So those are the pros and cons I think of a joint statement. I mean the only con is, if the parties really do know the facts, if it's a narrow enough issue, if they know the law, maybe we're wasting our time and we should just get into the heart of it. Sometimes the parties have spent a lot of time together already and they don't wanna waste the time. So I go back to what I say in mediation, one size does not always fit all and you really need to think about that.

Shaun Salmon - Absolutely, so we've discussed how you should prepare for an opening statement and you did touch a little bit on like pros and cons in allowing the client to speak in the joint session. Any other pros or cons you wanna touch on before we move on? 'Cause I do think that was like a pretty interesting section you just.

Leslie Berkoff - I think I've covered most of it, I really do. I think that you just, it goes back to the lawyer knowing their client, knowing their case and maybe even getting a sense of the adversary, you know? Especially if for two seconds, I mean sometimes and literally, I've seen cases where the lawyer doesn't understand the case and the client is following the lawyer's lead and letting the client hear something unfiltered really helps maybe get the client to go, wait, my lawyer told me X, this guy sounds like he knows what he's doing, or she knows what she's doing. Not that I don't believe my lawyer but maybe it's not as cut and dry or maybe I'm thinking about things differently. So you have to think about that.

Shaun Salmon - So this is just a completely random follow up to that but you said something that triggered it a little bit in my mind. Hove you ever had an experience where the client just deeply diverged or a client deeply diverged from what their attorney thought going in and did that end up actually like being successful for the clients in the long run?

Leslie Berkoff - Yeah, sometimes, you know, I find again, we go back to, I'll give you an example. Sometimes in the bankruptcy arena more particularly, the lawyers don't understand the overlay of bankruptcy. They may understand the case and the subject matter but I had a defamation case that was in bankruptcy. The defamation suit itself was not in bankruptcy but the claim had it been liquidated was going to be against a bank or chatter. And I spent a private session and the lawyer railed on about all these horrible, terrible things that entity and individual had done and et cetera. And I have a $10 million claim. And I said, yes, which is worth 2 cents on the dollar and he went, what? I said, it's worth 2 cents on the dollar. It's an unsecured claim against a company that's in bankruptcy. You may have a 10 million claim. You don't understand the value of your claim and your value is not what you think it is and he had not appreciated it. He had discounted what the plaintiff kept telling him or the debtor kept telling him, the debtor's lawyer and he needed that reality check. The other thing is and I really do try and be respectful. It's important of the lawyer and the lawyer client relationship but sometimes you just have to kinda call it out.

I had one several years ago, I'd spent two days in a mediation with these folks and we had gotten through a lot and we were down to like one little section, we'd settle the good, let's say 80% of it. We were down to like 20% number or piece. And I built a lot of trust with the defendant and his client. And he was sticking on this piece and just sticking on it. And I must have sort of looked at them and said, you know, we've been here a day and a half, we're down to this and I said, is that really your position? He kind of looked at the client, the client looked at him and they said, all right, you know, I tell you what? Can you just give us your thoughts on that? We'll take your thoughts, we trust you. You've gotten us this for, I said, okay, good, 'cause there's no way in hell the court's ever granting that for you. I'm gonna be very honest. I said, I haven't spoken to the judge. I don't need to speak to the judge. I can tell you that under the law in this circuit, this analysis of what you wanna consider ordinary course which is a defense to a preference action, there's no way on God's green earth that they're going to find those two payments to constitute ordinary course and being as real with you as I can and if I can get you a little piece of credit for some risk there because I'm unbelievably persuasive with the other side or I can convince them just to get it done, you should say, thank you, take it and shut this down and be done. And they both kind of looked at me and they said, okay, we hear you. And we got the case done. but it took trust, it took progress.

 And I don't do that very often because I had already walked them through and at least the client recognized that this was not the lawyer's specific area of the law. I didn't wanna undermine their relationship but he opened the door. He let me do it. And then I was able to do it in a way that left his relationship with his client intact which is really important. You know, there are times that I will pull lawyers out and just talk to lawyers and say to them, either the clients, you know, on drugs or you're not recognizing the risk here, how do we deal with this because I don't wanna go in there and pull the carpet out from under you but this isn't a good position to be taking. So I will manage a process to never disrupt that peace 'cause it's important.

Shaun Salmon - Yeah, I mean, I think a lot of what you're saying here too just is very indicative of the fact that, not only is a lot of law, personality management and that type good thing but a lot of your role as a mediator is really like an expectations manager also. Yeah.

Leslie Berkoff - Yep. Oh, absolutely.

Shaun Salmon - So I mean, I guess like as the process goes on, what other considerations do you recommend attorneys keep top of mind?

Leslie Berkoff - I think you've gotta come back to, as you make progress, what is your client's goal? So that's why we had risk analysis at the beginning and we had goal setting at the beginning. What is your goal in this process? What do you wanna achieve? What do we need to get out of this? And as it goes on, you know, what else can you do? How can you be creative? Do you need something else to think about? But remember, you know, if you're making progress or even if you're not, what you next deadline? What happens if we don't settle here today, what do you need to consider including what the client needs? You know, what else is on their plate for the year? What other economic risks do they have coming? That kind of thing. If you've done all of your prep and really thought this through, you should know what this is. But sometimes things come up in a mediation that give you different course to think about or other risks that have popped up based on info. Something like that.

Shaun Salmon - That makes sense. So what happens in mediation if you just simply reach an impasse?

Leslie Berkoff - It happens. So there's two things that I will do. Unless the court constrains me and I have to tell you, anytime a court thinks people are making some level of progress, they almost always move deadlines, but sometimes you can't. If you've reached an impasse and I will ask people to not shut it down, I will ask us to do a continuation. Let's take a break, Let's take a break. Let's reschedule it for two weeks from now. Let's just think about it. Maybe you just need more information. Maybe the reason we're at impasse is because you can't evaluate the claim that they're making because again, early stage mediation. You need a little information. Maybe can get the parties to exchange that information informally but I will have them step away. I will then follow up independently. I'd say 30% of mine settle afterwards because I haven't shut the mediation down. I've had to go back, I talked about the one where I had to be real with the him about a client was taking a position in a mediation of the due dates and when his ordinary course was and I had to go back and call the lawyer and say, I'm looking at his document. He has a document that literally says, if you don't pay by X date, we consider it past due. He said, he's dead in the water, I don't care what he says. His own document kills him. And you fluff that off like it was nothing in the mediation. It's a problem, you've gotta be real about this. So I will go back and talk to parties. Sometimes we'll schedule another session. I had one, we did four different sessions. We kept exchanging information there. And sometimes, you know, even after a couple of weeks, people are just gonna stay where they are, entrenched and not everything's gonna settle that way. So unfortunately you call it.

Shaun Salmon - What's the, 'cause you've mentioned like going back into sessions, taking a break a bunch of times. For people who don't know or don't do this very often, how long is your, like you personally, how long is your average mediation with a set of parties and how long can it you know, realistically go?

Leslie Berkoff - That's kinda hard to answer because I have some where they can be a couple hours and I have some that can be days and go on for weeks. It really depends on the nature of the dispute, the parties. Sometimes they're also court constrained. I mean, sometimes there are flat fee. The court says you have half a day, that's when you're supposed to get it done. It takes however long it takes and I've had really expensive issues which we've resolved in two hours and I've had $50,000, well, $50,000 matters that have taken like a half a day to two days.

Shaun Salmon - Right and by the way, I did ask that because you had mentioned going back in so many times and I was just curious if there's an argument for you know or if you think there's an argument for taking a little bit more time where it's needed to get to a place where you can settle?

Leslie Berkoff - Yeah, it's tough. You know, put it this way. I take great pride in this, I don't like not settling them. I'm not adverse to using that to my advantage to say, guys, you are letting me down. I have to tell you, I had one once where we went like 12 hours and I literally had no voice left. And I got on the each with them squeaking and I said, here's what we're doing, we're splitting the baby for the last 50. And I said, and you're doing it 'cause your mediator can't talk anymore. And I made it so but I said, come on, I've gotten you from millions apart to this, for the sake of my voice and I'm gonna start handwriting signs you gotta, and they laughed and I said, seriously, I'm really not kidding and they split it for me. But at that point we were so close. It was, how could you not?

Shaun Salmon - So any actually, no, one more. What should the parties do if they have a successful mediation and they do reach an agreement?

Leslie Berkoff - So it's really, really important that you enter into an agreement. Now you're not gonna document everything while you're sitting at a mediation table. I will tell you some of the bankruptcy ones do have form agreements that someone will prepare but I don't let people leave without even an email exchange between the parties or a basic term sheet. You know, if you've got four points, Bob's drafting the agreement, Sally's gonna put money in an escrow account. The agreement's gonna get executed and negotiated in four weeks, we agreed to release the parties and this is the payment. Everybody signs. I will not draft an agreement, a mediator never should draft an agreement. That's different than having someone in my office create a template and type up what they've asked for if we're sitting in my office.

In Zoom world, I ask one party to do an email with the guts of it, to send it to me to say, yes, I think this is what you've covered, to send it to the other side and get consent back. That's what I have them do. It' really important because otherwise, what you end up with is people disagreeing about what they agreed to and it could still happen, don't get me wrong. I mean, I had one, I did a mediation over a dispute over a prior settlement agreement about what the term of it was, we resolved the mediation, then they thought over what the resolution was and what the meaning of the email exchange was I had to go back to my notes and say, you've gotta be kidding me. So, it's really important. And I will hold my notes that I talked about until either I file my mediator's report 'cause I know we're done or the settlement and at which point they're shredded.

Shaun Salmon - It's so funny 'cause you took that question, right? I was gonna be like, how long do you hold on before you shred them?

Leslie Berkoff - Just until then, absolutely.

Shaun Salmon - Oh and you gotta love like the disagreeing over the agreement. Oh, that's so funny. It's just so humans, right? Just such human nature. So I did ask about what happens if there isn't a successful mediation, right? And what happens when they reach an agreement? What is the normal course of action if unfortunately, is not? Do the parties just like leave and that's the end of it? Like what's your role at the end of that? Do you like report it to the judge, what do you do?

Leslie Berkoff - So it depends on how it comes in. Sometimes if it's private mediation, they're reporting back to the court, I'm not. If I'm appointed by the court, then I have an obligation. It varies in each state or court to file a mediator's report that says, and the reports vary but the basic, they literally say the mediation was held. Sometimes it'll say who appeared and whether it was successful or successful. It says nothing more than that. I don't want anybody knowing anything more along those lines as to, you know, be used against anybody.

Shaun Salmon - Right, no, absolutely. That's actually why I asked that question. So any final takeaways for viewers that you wanna make sure that they took? You know, what information is like most important from our discussion today?

Leslie Berkoff - Oh, everything's important but here's what I'll say. I'm gonna sum it up. If you view mediation as something the court forced on you and a complete waste of time, you're misunderstanding that even if you intend or think you're never gonna resolve and you're gonna litigate, that there's benefits to be received from mediation, which I think I've talked about already. If you have the hope of settling, it's what you put into the mediation that helps ensure the likelihood of success by preparing a real mediation statement, by educating the mediator, by preparing your client and being settlement focused in your advocacy and doing real risk analysis and being evaluative about your case, you have a much better chance of resolving it. We have a lot of business that we get from clients and I know that, you know, a big case that tries to the end is very good dollars wise for people. I always view it as a happy client that gets resolved sooner that maybe pays a little less in fees but gets a better result quicker and moves on with their business life, is probably more grateful than spending four years litigating a case with an attorney and paying millions of dollars. And sometimes that's very much warranted but as an advocate and as an attorney representing a client's interest, sometimes their interests are moving on to greener pastures, I would say. So just try and keep that in mind and don't undervalue mediation as a tool in a litigator's toolkit.

Shaun Salmon - Fantastic, thank you. So Leslie, tell us where can we find you? What are you doing nowadays? And anything else you wanna share? Anything else you wanna share with the viewers before we sign off?

Leslie Berkoff - Perfect, so a couple things, what am I doing now? I'd say 40% of my practice is serving as a mediator or a AAA arbitrator, internationally and nationally. I'm on a host of panels, and by that I mean, not speaking panels but panels to serve as a mediator and I do private mediation. 40% of my practice is being a restructuring professional and the rest of it is being a receiver in state and federal court and handling business, divorce litigation. And I'm all over the country. Literally, I just got back from three weeks of travel. I was in California, Vegas and Miami and I'm back in New York.

People wanna find me it's Leslie Berkoff, I'm on LinkedIn. I accept all LinkedIn invites unless you are a financial planner and are gonna harass me. But I do that so that I can, honestly say, because I'm connected with someone on LinkedIn doesn't mean that I have a specific relationship with them. So feel free to connect with me on LinkedIn. I'm always covering or putting things out there on mediation and other topics. My email is [email protected] I don't know if you'll be posting it with this, so it's accessible. People should feel free to email me if they have questions about mediation. If they obviously would like to hire me as a mediator or get some input. I have a host of publications that are out there and articles that are out there and I'm happy to continue to speak and talk and obviously serve as a mediator because it's something that I think I'm good at.

Shaun Salmon - So also Leslie, yes, your email is available and you can also be contacted through the Quimbee website. So don't hesitate to reach out to Leslie if you have any questions, super easy, click of a button. And thank you so, so much for chatting today. I will be adding you on LinkedIn 'cause I'm pretty sure we're not connected yet. And thank you so much, I can't wait to do this again sometime and a great rest of your day. Bye Leslie.

Leslie Berkoff - Stay safe, take care.

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