Parties are much more apt to go to
mediation now than they were even 10 years
ago. There was a time when the lawyers,
or the lawyer and an insurance adjuster,
just negotiated back and forth and got to a
settlement. Now it seems that all cases that
have any significant damages at stake go to
mediation. So insurers are more willing to
negotiate through mediation.
When they get there ... most insurers like
to be deliberate about their negotiation
tactics. Very seldom will you see an
insurance defendant who is at a mediation
table cutting to the chase. It usually takes
a number of caucuses back and forth to try
to get to settlement. Every now and then
that becomes frustrating to me, as the
mediator, because you can usually predict,
fairly accurately, early in the mediation,
approximately where the case will settle.
Yet you have to go through this process
to get there that may take anywhere from
four to multiple hours. I was in one Tuesday
night until 9 that started at 10 a.m. We got
it settled, but it took 11 hours to do it.
Q: And did you see the resolution early?
A: I could pretty much tell where the
dollars were going to come down. The
problem in that one, and I see this fairly
often, there are multiple defendants with
different insurers and that complicates the
negotiation process immensely. Because
all of a sudden instead of just negotiating
between the plaintiffs and the defendant,
you’re negotiating three or more ways.
The insurers don’t want to be outdone.
And so you’ve got that additional layer of
negotiation that has to be resolved.
Q: How do you get past that additional
A: You have to be persistent. You really do.
You have to continue to hammer the point.
You have to press and press and press
to get the insurance adjuster or defense
lawyer—or whoever’s calling the shots—off
of [certain] thought processes.
Q: What do you like about being a
A: Well, first, I really like going to court
to try cases. But there are certain parts of
mediation, that I think suit my personality
and my experience—keeping in mind that
I’ve done defense work and plaintiff’s work
over the years. It’s challenging and frankly
it doesn’t require much preparation. In a
lot of mediations, I don’t even get pre-mediation materials. So it’s like coming in
and having to think on my feet and help
people find a way to resolve a problem by
reacting to the facts, and the issues, and
the personalities, and the dynamics of
settlement. You’re engaged throughout
Q: That “thinking on your feet” aspect
sounds like being a trial lawyer, too.
A: It’s very much like being a litigator
in the courtroom or a judge. Although,
you’re not a judge. You don’t get to
force anybody to do anything. You are
a facilitator, a helper, and different
cases require different methodologies.
Every now and then you’ll get one where
the lawyers really want to know your
opinion about the range of jury verdicts
in a case. Sometimes they simply want
you to be a message carrier, and you
have to react and use your discretion to
either step back and let the mediation
take its course or push the parties more
aggressively toward settlement.
The other really good thing about
mediation is this, as I told some lawyers in
a mediation this week: “If this case doesn’t
settle, tomorrow I don’t have to worry; but
you lawyers do, because now you’ve got to
prepare for a trial.” As the mediator, you
never lose sleep over a mediation.
A: Well, seldom. I’ve had a couple over the
years where, you know, the facts of the case
were such that your emotions get involved,
but you obviously try to keep that out. But
for the most part, when you’re done with a
mediation you’re done with the case. I do
check up on cases that do not quite get to
settlement, but where you, as a mediator,
think it could have. I’ll follow up a week or
two weeks or even a month down the line
with the lawyers in an effort to resurrect the
mediation and try to get them to settlement.
But other than that, once the mediation is
over, whether it’s settled or not, you close the
file and move on to the next one.
Q: Your work representing cities and
counties: How did this come about?
A: When I came out of law school in 1981, I
went to work in Savannah for a firm called
Friedman, Haslam and Weiner. There
was a lawyer in that firm by the name
of Bill Shearouse, who was an assistant
city attorney for the city of Savannah. His
primary practice area was real estate and
transactional, and he began to give me some
of the city cases that were assigned to him.
I liked it. City work lends itself to summary
judgment motions. It’s almost like putting
together a puzzle: You figure out where the
weak points are in your opponent’s case and
then you construct the case around that in an
effort to get the thing dismissed.