Publications

By Robert M. Smith

March, 2014

Some people think of California as a welcoming place.

Disneyland beckons. So do sun (sometimes) and sea (in some places).

We import ripe Chilean cherries by the mega-kilo, French cheeses by the pungent container load, perky Austrian wine by the thousands of cases. We even import the best of the world’s technology and very smart people to Silicon Valley.

But the California State Bar and the State Legislature have drawn a strict line in the Palm Desert sand.

California lawyers may do international deals, and handle worldwide litigation and arbitration. They may even serve as arbitrators and counsel in far-flung proceedings.

But non-U.S. advocates may not serve as counsel in arbitration hearings in California. Not even though they are the primary counsel to their clients in the arbitration. Not even though the hearings are closed, private, and secret. Not even though they are held in closed conference rooms, not courtrooms.

No, you say in rising disbelief. Oh, but yes.

You see, as my friends in the arbitration community who watch this stuff are kind enough to explain: There was a case that prohibited U.S. out-of-state lawyers from serving as counsel in arbitrations in California. See Birbrower, Montalbano, Condon & Frank PC v. The Superior Court of Santa Clara County,17 Cal. 4th 119 (1998). So the legislature hurried to fix that. And–as the fixing rolled on–various exceptions and provisions were glued on, as various lobbyists and interest groups did their pleading.

But the non-U.S. lawyers had no lobbyists. Pace the Paris-based Union Internationale des Avocats and the London-based International Bar Association.

So–to come to the source of my problem:

I was the sole arbitrator in a multinational arbitration with advocates from Latin America, Asia, Canada, and the United States. The hearings were to be held in Hong Kong. The parties opted to change that to California.

I then unwittingly violated the “don’t ask, don’t tell” policy that governs the ability of non-U.S. admittees to speak here for their clients. (Those advocates who are admitted somewhere, anywhere in the U.S.–need only fill in a form, pay $50, and get my permission–and they were as welcome as the cherries, cheeses, wine, and high-techies.)

I asked the State Bar. No, the bureaucracy explained. I remonstrated; I escalated; I called the then new State Bar President Luis Rodriguez. (He had the good sense not to call back).

I was ultimately directed to George Leal, the Director for Educational Standards for the Bar. I asked Mr. Leal to talk with the General Counsel of the Bar, Starr Babcock. Mr. Leal said he needed a piece of paper to forward that request.

I was rash enough to ask whether battalions of marshals, bailiffs, sheriffs, or constables would be dispatched to the arbitral conference rooms.

New York–an (intentionally) much more welcoming jurisdiction–beckoned.

So did videoconferencing. A question for the law grad students in the seminar on international mediation I gave at Oxford: Is a videoconferenced appearance by a Latin American lawyer a violation of the California statute? (Exceptionally, common sense will be given extra credit.)

The California Bar offered neither organic tea from Santa Cruz nor sympathy cultivated in Marin County.

They did suggest a pow wow with California’s legislators in Sacramento. Good luck to the Union Internationale des Avocats and the International Bar Association.

In the meantime, as I said, New York beckons. Likely so do a lot of other places. But there remain the sun and sand –and the progressive thinking and remarkable openness — of the Golden State. Just like the selfless dedication of the California Legislature and State Bar in protecting legal clients worldwide.

*********************

How many times, as a mediator, have I seen a lawyer on one side of the mediation show up not having turned over documents long ago demanded in production by the other side, which sometimes even has a motion to compel pending?

What is the opposing lawyer to do? He or she, client in tow, is there, at the mediation. Leave? Not negotiate? Guess at the contents of the discovery not turned over?

Yes, you can argue that the mediation should take place after the motion is heard. But please remember courts like to see — and often so do fee-paying clients — cases resolved sooner rather than later. And it is hard to gauge when promised documents will arrive.

This appears to be a repetitive phenomenon, not subject to the control of a mediator whose thumb must stay off the balance scale. Arguments about what undisclosed documents say are not likely to be persuasive, and seasoned litigators know it. They also know that, if the case settles, sanctions motions go off the table. Less-experienced lawyers may not even see the premeditated advocacy, when it is that, sailing by.

I should probably not leave the subject without mention of the new wave of mortgage cases that involve secondary servicing organizations that claim — I leave entirely whether credibly or not to the facts, their interpretation, and to you — not to be able to access, or access readily, mortgage documents. It will be instructive to see what judges make of this–and what, if anything, they do about it.

*********************

One mediation involved a wealthy family. They sounded out in advance a number of mediators. I pointed out–more than once–that I am not psychologically trained and they might want a psychologist or psychiatrist. Of course, with that strong admonition, they came to me. The matter did end with a signed agreement and (at my suggestion) a celebratory family dinner. (I prudently turned down the invitation kindly proffered.)

But it made the point to me yet again — as I watch my younger and better successors begin the journey down the path of the mediation profession — that as we train JD-MD’s, JD-MBA’s, JD-chefs — we ought to organize an education that lets future mediators combine training in both psychology and law. This would not seem inappropriate when law schools are taking a battering. And if they were dual-credentialed, perhaps the youngsters would have a better chance–which so many of them badly need–of getting a job.

Robert M. Smith is a long-time commercial mediator in San Francisco. He ran litigation overseas for Bank of America, served in the Carter administration, was an Assistant U.S. Attorney, and had his own commercial litigation firm. He was Director of Mediation at an international commercial mediation center in London, and taught a seminar at Oxford. He has lectured widely, written a book on ADR, and was President of The Mediation Society. He has been selected several times as a “Super Lawyer.” Mr. Smith is reachable at rms@robertmsmith.com.

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By Robert M. Smith

November, 2012

Wo shì zhong xìng de.

I am reliably informed by an automaton (whom I’ve never met) that this means in Chinese: “I am neutral.” I have to say this right away because I am on the Panel of Arbitrators and Mediators of the South China International Economic Trade and Arbitration Commission (South China CIETAC) in Shenzhen.

So, you appropriately ask, who cares? Lovers of political – and legal – drama do. CIETAC in Beijing is at war – there is no other way of putting it – with CIETAC in Shanghai and CIETAC in Shenzhen. The bottom line is that the current status – and future – of arbitration in China is up in the air. Foreign law firms in China are scrambling to advise their clients as to what to do. And they really don’t know what to say.

Here’s why:

CIETAC in Beijing, Shanghai and Shenzhen each originally appeared to have the power to convene and administer mediations and arbitrations, and to give force to the will of the parties as expressed in contractual arbitration, mediation, or multi-step ADR clauses.

You should understand that whichever one of the three handled the dispute got the fees paid by the parties.

In August CIETAC-Beijing “de-authorized” Shanghai and Shenzhen. It said it would administer all the cases – and, of course, collect all the fees – unless there is a provision in the arbitration agreement that the case should be submitted to Shanghai or Shenzhen. (Just before that, Shanghai and Shenzhen had declared themselves independent arbitration commissions.)

What can only be called rebellion ensued. Shenzhen and Shanghai said (and here I translate with more than usual freedom from the literal and boring): We are independent arbitration and mediation panels, duly authorized by law, by governments, and in commercial contracts – and we are going to continue doing what we have done well (and keep collecting the fees).

Just so you understand these folks are serious, let me mention that Shanghai has called Beijing’s action “a severely unlawful act.”

So, if you have an arbitration or mediation clause that specifies Shenzhen or Shanghai, what do you do? No one can give the risk-averse advice that we all love. Many lawyers in foreign firms are saying: Look, the Chinese system has come completely apart – so, if you can possibly do your ADR outside of China, do it.

I told you at the beginning. I am a member of the Shenzhen Panel, but I also know when I’m out of my depth – so, to repeat for those of you who didn’t catch it the first time: I am neutral.

Years ago when I was studying China as a Fellow at Columbia’s School of International and Public Affairs, I learned a single character: the character for “middle,” as in Middle Kingdom. I was taught this because of what it was supposed to say about the self-image of the Middle Kingdom. The same lesson was repeated in a seminar on Chinese law at Yale.

Years later, you can’t help but wonder why someone in the Chinese government, at a high enough level to stop this squabble, hasn’t stepped in yet. It is, after all, an economic and legal disaster. There is, for example, the Chinese Council for the Promotion of International Trade – CCPIT. My own private, biased view is: Beijing, Shanghai and Shenzhen need a really good mediator.

While they are working this out, let’s take a quick spin to the Kongo people of the 19th century. We do this with a brief visit to the De Young Museum in San Francisco, and an African artifact in its collection. This artifact is made of wood, metal, nail, horn, branches and glass. It is called: “Nail and blade oath-taking figure.” But, pained as it is, it is a mediator. The Kongo people had it right, back then. The curator writes: “[I]t is a spirit being who settles lawsuits or serious disputes in the Kongo community.” It was regarded as a living spirit, and clients addressed it. According to the curator, “Each nail and blade in its body represents either a condensed argument that helped resolve a legal matter or was pounded in when the spirit was being asked to do its work.” This small figure is described as having an “acutely alert pose.”

This column is not meant for mediators. But if anyone reading this is thinking of entering the field: You cannot say you haven’t been warned.

Other than the occasional mediator, when I think back, only one other person involved in the law reminds me of the poor nail and blade figure. When I was a correspondent in the Caribbean (tough job, huh?), I saw a judge taking down – by hand, with pen and ink – each question and each answer of testimony in a very warm courtroom. There were, it seemed to me, a lot of questions and a lot of answers. Only a lawyer, I suppose, could wonder whether the Caribbean equivalent of worker’s compensation applied to the island’s bench.

If we may press on to Italy for a moment, the Italian Constitutional Court has declared mandatory mediation unconstitutional for excess of delegation (“eccesso di delega”). Despite the European Union’s pushing as hard as possible for mediation in the EU, Italian lawyers were never fans (to the extent of going on strike).

The EU invited me to lead a symposium panel on mediation last winter. It was organized for the EU by the University of Turin Law School for a pan-European audience. The other panelists were from Spain and Italy.

I understand the antipathy of the Italian lawyers. At one point in my life – in a mad fit – I founded a litigation law firm in San Francisco with no clients. When I opened on the 32nd floor of a Financial District tower, it was me, and the plant lady, and my friend the architect.

I understand the economics of practice.

I am also obliged to tell you – no kidding, as an oath-taking figure – that I used ADR (and, in particular, mediation) as a marketing device. Over a decade, we had – unhappily – lost the plant lady and no longer needed the architect. But we had represented many clients – including three dozen banks and other financial institutions – in a wide variety of cases.

I am thinking about opening a little caffè in North Beach here in San Francisco. I intend to call it “Il Bar Mediazione – Il Tuo Amico.”

Robert M. Smith (www.robertmsmith.com) is a long-time commercial mediator in San Francisco. He ran litigation overseas for Bank of America, served in the Carter administration, was an assistant U.S. attorney, and had his own commercial litigation firm. He was director of mediation at an international commercial mediation center in London, and taught a seminar at Oxford. He has lectured widely, written a book on ADR, and was president of The Mediation Society. He has been selected several times as a “Super Lawyer.” Smith is reachable at rms@robertmsmith.com.

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By Robert M. Smith

October, 2012

There were two dozen members of two Baptist churches in the conference room that morning. It was sunny outside, but inside the beginning of the mediation was not auspicious. Before I could say a word, one of the ministers, elders or congregants said: “We should be ashamed to be here with this man. We should have one of our own ministers working with us.”

AWFUL MOMENT

This was one of those awful moments when you wished you had paid more attention in mediator school. I hadn’t even taken the much-advertised online course for extra-rapid ordination by the Church of Eternal Stars and Never-Ending Bliss. I am so far from ministerial that the thought makes my friends giggle.

I looked gravely down one side of the table, then the other, and said, “May we begin?” Not hearing open dissent, I began.

ONE HOUSE

The dispute was between two church congregations, each with a claim to the same physical church. How to accommodate two spiritual groups, with two different pastors, in one physical house of worship? The congregants did it. Late that evening they reached, by compromise, an agreement. They signed, hugged one another, and left the conference rooms for a better place.

Long ago, in my earlier life as a trial lawyer, I learned to be vigilant on trips to and from the men’s room. Jurors might be making the same visit, and contact was parlous. There lurks the same sort of peril in mediation — not a forbidden encounter, but possibly an awkward one.

THE COMPLIMENT OF COMPLIMENTS

When I was returning from the men’s room, as folks were about to sign the agreement, I saw one of the ministers heading right toward me. Before I could say a word, he clapped me hard on the back. Then he gave me the greatest compliment I was ever likely to receive as a mediator. “Mr. Smith,” he exclaimed, “you should be a Baptist.”

For a while this mediation spawned a sub-specialty of my mediation practice: churches in trouble.

I never converted. I did remain a mediator.

CORNED BEEF AND LIAISON

Except for the corned beef sandwich, I could have been back in France. Here was this guy in his 80s munching on a corned beef on rye I had managed to get him from the local deli — his favorite sandwich.

The allegation was that he had suffered from elder abuse. But the family, it turned out, was perturbed, too. Their collective feeling was that — let’s call him Max — Max had a mistress, and his mistress had avaricious inclinations.

I never met the mistress. Everyone treated her as a long-standing fixture in Max’s seemingly happy life.

The questions were: Did Max have full use of all his faculties? Was he being abused by family or mistress? Was his estate plan sound? Had he squandered any one’s assets — whoever’s they might have been?

People did not seem to be exceptionally interested in Max’s soundness, or the corned beef. Relentlessly, money — past, present and future — held center stage.

As they sometimes do, things arranged themselves during the day to no one’s particular satisfaction, and every one’s minimal satisfaction. Max seem largely unfazed by the hustle and bustle, as I sought to make sure that (completely untrained as I am in both psychology and medicine) he understood and agreed with each step.

As I recall, there was no discussion of the mistress in his presence, although a lot was said about her in his absence. Unlike the church mediation, this did not — I must report — spawn a stream of abuse-by-mistress cases. Nor even corned-beef lunches.

HARASSMENT?

The plaintiff in this lawsuit was frightened. Frightened of the defendants, of the lawyers and of me. I tried speaking Spanish to make some connection with her. Not much progress.

She worked in a fast-food restaurant. The work place was allegedly hostile. From her point of view, she was being relentlessly harassed by her male boss and her co-workers. From their point of view, they were making normal, acceptable advances. All were young; all spoke Spanish.

The restaurant chain had a manager who was supposed to understand the customers and the community; he lived in it. Did he understand the problem, and the law? In a sense, he was the intermediary, trainer and cultural interpreter, as well as the boss. He understood. And he was caught in the middle.

The going was tough. Catharsis was not achieved. Communication was strained. Perspectives did not appear to shift measurably. Embarrassment abounded — on all sides.

And for that any mediator would, of course, be sorry. But mammon worked its will, and the suit was dismissed. What happened at the restaurant thereafter I cannot say.

OPEN THAT PORTAL: THE SUBCONTINENT AND THE SILVER STATE

There were a lot of people in that Orange County conference room. And there were many boxes of technical documents that were exhibits. And there were experts, on the one side from the tropical Indian subcontinent and on the other from the sagebrush desert of Nevada.

I confessed at once to all that I had not read all of the boxes, but ventured that it did not seem necessary. I had asked the engineers to give me a joint statement as to everything they were able to agree on, with separate brief statements as to what they did not agree on.

At issue were liability and damages for a business-to-business web portal, that had yet to achieve existence on the Internet, to the consternation of the plaintiff company.

I kept prodding and poking at the engineers, and asked them to consult still further with one another as to when business customers could actually expect to see the portal.

As usual, I cannot report on the terms, but settle the case did. The executives began to listen to the engineers, to whose professionalism and technical congeniality I kept appealing. In a single day, a dispute spanning the oceans — with practically enough document boxes to form a bridge from one continent to the other — ended. And it ended with enough of a relationship, however raveled, between the adversaries for final work on the portal to take place.

THE ARBITRAL REFLEX

Would it be churlish to ask why international commercial contracts still sometimes use arbitration clauses instead of multi-step dispute resolution processes that include mediation? Would it seem less churlish if I disclosed that I am a chartered arbitrator in the United Kingdom and a fellow of the Chartered Institute of Arbitrators? Perhaps not; I have heard mediation reviled by speakers at enough gatherings of transnational arbitrators to know mediators are not darlings in those precincts.

I pause there: Arbitrators feel we lack legal analytic skills, transnational sophistication and the ability to down a daiquiri in a dinner jacket in certain posh venues favored for hearings. I have done both arbitrations and mediations — including one case I began as sole arbitrator in London when I had raging influenza. I find mediations, which often involve imagination and communication as well as compromise, far more difficult than reaching a decision, however elegant, and imposing it.

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By Robert M. Smith

October, 2012

The husband was in his 70s. He had survived a head-on collision after which he was deprived of oxygen for several minutes. He was not a well man.

His wife was a bit younger, but also ill. She leaned heavily on a cane to walk.

They had been manual workers, and union stalwarts, all their lives. And then the bank had sold their home loan to another bank, and the mortgage servicing company had also changed. Until then, like clockwork, they had made their mortgage payments for 27 years on a little house in a lower-middle-class suburb.

OFF THE TRACKS

But things had gone off the tracks after the change in banks and servicing companies: Foreclosure loomed. In fact, only a preliminary injunction was keeping them in the house. They had not provided proof of insurance — so the bank had placed the insurance at many times the original cost with another insurer. The amount owing had more than doubled. The judge had conditioned the injunction on monthly payments, and a one-time payment of $7,500. The couple could not make the payment.

Communication issues had added to the problem: It developed that the husband said — because of his reduced mental functioning — he did not answer the phone unless he knew the caller. For whatever reason, voice mails built up until there was no room in memory; the lender said it could not reach the couple.

HARDEST HIT

There is a mortgage assistance program called the Hardest-Hit Fund, but these folks had not yet been able to access it.

The lender and its lawyer had great sympathy, but no solution. The borrowers’ attorney seemed quite a nice man, but he had seen this situation, or one like it, so many times that, like a surgeon, he could not afford to let himself feel the couple’s pain.

As the mediator, I confess to pressing again and again. This was not my normal line of country — foreclosures on single-family homes — but I had written a West treatise years ago on ADR for Financial Institutions, and I wanted a ground-level view of what is happening in the country. Mentally leafing through the book I had written, I urged this and that, played trial scenarios, probed for flexibility and limits.

After a few hours, the institution made a demand; the couple said no. Things were tense, but the couple countered.

CREATIVITY AND CHOCOLATE

I pleaded for creativity.

The lender obliged. One of its officers in New York — on whose evaluation the net profit/loss would be recorded — worked late. She came up with a compromise that gave the lender a long-term gain, but offered the elderly couple payments they could make and a house they could stay in.

Where there’s a will … and imagination … and persistence …

We were in my office at the Embarcadero Center. I went downstairs and bought a box of See’s chocolates for all to share. On my watch, no one was going home without a celebratory treat (and Widow Clicquot, however beguilingly effervescent, had a certain downside potential in the context).

CLASS ACTION

Years earlier I had been involved in another banking dispute. It was of a different kind. It was a class action in federal court in the Pacific Northwest involving a large group of bank employees and a major national bank. It was a case involving terms of employment. Nine law firms and lawyers were involved, bank executives and of course, class representatives. Of course, the federal court needed to approve whatever settlement might be reached.

The various rooms were on two floors of a large law firm, connected by a spiral staircase. If I had taken the elevator each time I had to go to a different room, it would have added a good deal of time. It turned out there was some professional reward for jogging and yoga.

The principal defense lawyer was a large and imposing man, a self-confident, mid-career partner in a big firm. I had done a mediation with him before. He did something this time that took me aback. He presented a counteroffer, then shouted to me, as I was leaving the sizable room: “Just make them take it!”

There is a variant of a sentence attributed to Isaac Bashevis Singer: “Mediators cannot live without self-control.” I climbed again up the carpeted spiral stairs.

I didn’t make anybody take anything, of course, but the case did resolve. The settlement was in turn approved by the court.

TAKE COUNSEL

I have now written a series of columns for The Recorder. In fact, its parent company, ALM, has had the bad judgment to make me a contributing columnist. This is ironic; I confess to not having had massive respect for columnists when, ever so long ago, I was a correspondent for The New York Times.

In this series of columns, I have forgotten to mention the dispute I mediated among lawyers who were co-counsel on a product liability case. They were not able to agree on the strategy and tactics to pursue.

An airing of the issues over a day showed that the unhappiness was not just about strategy, but about the way the lawyers had related to one another. If the hair pulling continued, wigs might be in order — but not on the English model.

(While I make no comment on the sensitive issue of barristers’ wigs, I must say that, while eating the required dinners to become a barrister of Inner Temple, I found the gowns a wonderful protection against spilled sauces and wine — like an oversize lobster bib.)

After hours of frank conversation, matters were ultimately arranged, strategy settled on, and collegial professionalism re-established.

And one firm was content enough with the process to engage me later to try to assist with issues among their own partners. Generally, listening to colleagues, both partners and associates, before the lid blows off would seem common sense.

SHADE

Not all mediations may appear to have grave consequence, but nearly all do for those caught up in the dispute.

The woman was a musician of some note. She was cultured, cultivated and sensitive.

Remarkably, there was a swimming pool in a dense, posh San Francisco neighborhood. The owners, a couple, were quite fond of the pool and not at all happy about a shadow being cast by a tree on the musician’s property.

War ensued.

Mediation — without counsel — followed.

Bliss was not attained, but a resolution was, after much earnest expatiating on the virtues of trees and pools.

I was not invited for a swim in the sun. I did receive invitations to concerts for a while. But none of them was poolside.

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By Robert M. Smith

September, 2012

Sometimes, just sometimes mediations begin with the roughest of timbers and the rustiest of bolts, and the result is an architectural marvel.

So it was in London, when things began with all the makings of a grudge match between the parties. Strong-willed is not an emphatic enough description of the two dedicated antagonists, who had told their solicitors that the entire Channel would freeze over solidly before …

And yet, by the end of a long, hot day in London, near Chancery Lane, they did it — to the amazement of their solicitors, and maybe themselves.

WINE AND ROSES

The next day, a messenger came to my office on Fleet Street, near the Inns of Court, while I was debating between a post-mediation reflective visit to Temple Church and a celebratory stroll through the Inner Temple Gardens. It was a large carton.

In it were a dozen bottles of marvelous French Burgundy. And a note of thanks from one of the parties.

Oh oh, I thought. Cannot take it … but also cannot offend. What to do? Perhaps opening one bottle would show the way forward.

I thought back many years to my youth as a correspondent in the Washington bureau of The New York Times. We were allowed to take nothing … except what we could eat or drink in one sitting.

I am obliged to say right now a full bottle was not an option (at least not without help). But once the cork was out what were the ethics of wasting fine wine? You can see the dilemma.

I returned 11 bottles, drank one (with a friend) at dinner, and called solicitors on both sides to disclose my temptation and venality.

My boss came in at noon that day, and with a true Scottish wistfulness, lamented that my ethical vision had not extended to sharing the case with colleagues.

Don’t let anyone try to tell you the contrary: As you see, ethical questions abound in mediation.

FINGERS OFF THE SCALE

We cannot be guarantors of justice, we wretches who strive to keep our fingers off the balance scale.

Fairness of the process, yes; justice, no. But where do fairness and justice meet?

BEST ADVOCATE EVER AND MCKENZIE FRIENDS

He was a remarkable advocate, in very difficult circumstances.

There was an excited group of protesters in the large conference hall, and this solicitor was representing the multinational manufacturer with facilities in England they had been persistently demonstrating against, with both media and police attention. Some had been arrested.

And with the protesters were their McKenzie Friends. When you don’t have a solicitor or barrister in the U.K., you are entitled to a “McKenzie Friend,” who is allowed to assist you. This person does not need to be legally qualified, and in that hall that night they were not. It might be fair to say that the devotion of the Friends to their cause was passionate; their devotion to counseling their “clients” as to their own best interest might be seen by some as less passionate.

In any event, my first role as mediator was to keep order (though I lacked a mace). That done, we proceeded to listen to what everyone had to say, including this solicitor — who, I think, specialized in representing large companies with this sort of problem.

He was in a word, astonishing — astonishingly effective. Defendant-protesters, McKenzie Friends, barristers and solicitors became silent as he began to speak directly to the parties on the other side. I wish I could recall exactly what he said, but I can’t. What I remember is his self-effacing, entirely reasonable tone; and striking was the focused, respectful way the young protesters and their Friends listened.

I broke the participants into separate caucuses shortly after that, and the matter — boiling over with emotion, media attention and legal consequence — was largely ended as among most of the protesters and the multinational company.

It was a matter where I thought a mediator of another nationality might have had an easier time, because the multinational was perceived as American and the issues were seen as having been created by Americans and American policy. Still, it largely resolved that day and evening.

OF DISPUTES AND QUALIFICATIONS

Lawyers sometimes make a lot of whether the mediator has a background in the area of substantive law involved in the case. With clear exceptions — like patent law and marital dissolutions — I’ve never wholly agreed with that approach.

On one occasion, I was grilled — as an English barrister — on whether I was familiar with an arcane point of probate law. Before the mediation, I studied up on the line of law. (This research — with real books — took place at an old but polished oak desk overlooking a well-tended garden. More recent graduates don’t know what they are missing.) When we actually had the mediation, I discovered that not a single soul raised a point of substantive law during the entire mediation, even though these were the same lawyers who had harped on my knowing the area.

I am an obvious disciple of process expertise. And therein lies a problem, for — at the end of the day — a lot of commercial mediators were originally lawyers by training and experience (or “profession of origin”). We were not trained in psychology.

LAWYER-PSYCHOLOGIST-MEDIATORS

I have promised my editor to avoid my public-policy rant about the need for mediators who have cross-training in law and psychology, trial experience and clinical experience in psychology, and an internship/clerkship/residence in mediation. If we can manage to mint M.D.-J.D.s, J.D.-MBAs, M.D.-Ph.D.s, and so on, why can’t we properly train mediators? If we’re serious, at some point we will manage to.

Right now I and others are facing a remarkable court requirement: proving we have had one hour of instruction on mediating with self-represented litigants, one hour on “ethics, fairness, and bias,” and one hour on mediation “from a mediator’s perspective.” The calls are rolling in to the bureaucracy as I write because there is, generally speaking, little instruction of this type available. It is a problem California lawyers have managed to cope with creatively in terms of MCLE.

‘TIS, ‘TISN’T

Speaking of bureaucracies — did you know that the California Supreme Court has said that mediation is not the practice of law, but the State Bar compels mediators who are lawyers to remain members of the bar on the ground that we are practicing law — and fork over the bar dues?

A COMPLAINT

But I digress. In many years — nearly 20 now — of mediating, I have gotten only one complaint that I recall. It arose out of a mediation in Oxford, England, that involved a quarrel between a mother and a daughter over the proceeds of the sale of a pub.

In my silly way I thought things had gone well. The mother was — in the words of the court — a self-represented litigant. The daughter had a solicitor. They began to talk, and I let them — hoping for catharsis, communication, understanding, maybe even reconciliation. The daughter was a bit steadfast, but things proceeded to a resolution after several hours. I called a local solicitor to ask if he would help the mother (pro bono) with the drafting and review of settlement documents; he kindly agreed and the settlement was documented.

The mother subsequently complained: I had left her alone too long across the table from her daughter.

I explained at length, apologized at still greater length.

But, you know, I’m not a clinical psychologist.

Bring on that hour of instruction on mediating with self-represented parties. I’m sure it will do the trick.

MIDDLE EASTERN MUSIC

But I refuse to let our tête-à-tête end on such a note. Better to discuss a dispute involving ownership of the design of a certain Middle Eastern musical instrument that I’d best not describe further.

This mediation took place in the St. Peter’s Community Centre, Loughborough, which is a town within the Charnwood Borough of Leicestershire, England. (Pace the American Cheese Society, this is the home of Red Leicester cheese — a fact that had nothing whatever to do with the mediation but everything to do with my appreciation of Loughborough.)

It was a spirited session. I am sorry to report that — unhappily, like certain other matters Middle Eastern — the dispute did not resolve. Perhaps psychological training would have helped. Perhaps training in dealing with self-represented parties. Perhaps musical training. Perhaps cross-cultural training. Perhaps less heat in the room; perhaps more.

Ownership of the design remained disputed. But the instrument itself was resplendent. How could a thing of such elegance be caught up in such controversy?

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By Robert M. Smith

September, 2012

There are almost 5 million mediators in China.

OK, sticklers: There are 4.9 million, according to Dr. James Chiu (2012 Asian Dispute Review 86). The Chinese mediators mediated more than 7.5 million civil disputes in 2009, Chiu reports. So individual per-mediator volume isn’t high, but national output is remarkable.

This raises once again the issue of cultural differences in mediation, and what we might learn from others — perhaps the Chinese.

ARE WE ODD?

For starters, don’t you find the current American model odd?

When I began litigating, there was no mediation; lawyers talked to each other, and settled cases.

To overstate matters (but not by a lot): A number of forces emerged, then coalesced, and the next thing you knew mediation had been bureaucratized by courts, and oligopolized by vendors. Sometimes not an abundance of attention was paid to who mediators were. Largely for economic reasons, the emphasis was: Get rid of the cases.

On occasion, unhappily, considerations of justice, harmony and professionalism were not high among the considerations.

CHINESE AND GERMANS

When UNCITRAL was considering its rules for conciliation, or mediation, there was a telling disagreement: It was generally not felt appropriate for the mediator to also be an arbitrator in the matter. But the Chinese and Germans disagreed, and urged that there was nothing improper in one person having, simultaneously, both roles.

It represented a cultural difference. It went to the nature of facilitating resolution, and the perception and stature of the neutral and his or her character.

Bobbing and weaving

On occasion the current technique in the U.S. has become how to side-step the process while facially complying.

The internal dialogue is on occasion: The court says that we have to do this, and that authority has to be present. But we know this case will not settle now. So let’s see what we can get out of this: Can we get the mediator to prise some information, or valuation, out of the other side? Do we really have to have somebody there, or can we just get opposing counsel and the court to go along with having somebody somewhere at the end of telephone? Or, better, yet, can we just say that we — the lawyers — have authority and not have anyone else available at all?

The mediator regards the process, typically, as belonging to the parties; it is generally theirs to fashion, unless it seems unfair. As for the court, a stipulation usually makes the arrangements of counsel a done deal. And sometimes opposing counsel will go along for reasons of reciprocity or longer-range advantage.

This isn’t the typical case, in which clients want to end the pulling and hauling and take matters into their own hands. But when this does happen, what remains of the mediation? What do you think the Chinese, or the Germans, would think of this version of the American model?

I’ve mediated with Chinese parties in different places, and I’ve mediated with Germans in Frankfurt. And when I did that, I couldn’t help wondering what a Chinese, or a German mediator would be doing.

‘UNIVERSE OF STAIRCASES’

A French academic at the Sorbonne, Guy Olivier Fauré, has written that confusion about the negotiating process itself is one of the main reasons why negotiations between Chinese and non-Chinese fail. This confusion, Fauré said, “leave(s) the negotiator feeling like a prisoner in a universe of staircases leading nowhere.”

Nuer

All of this brings us to the Nuer. They have yet another take on the process.

The Nuer are a tribe of pastoral nomads who herd cattle along the flat-lands of Ethiopia and the Sudan. They fight over things like cattle theft, adultery and watering rights in the dry seasons. See Sally Engle Merry, “Mediation in Nonindustrial Societies” in Kenneth Kressel et al., Mediation Research (Jossey-Bass 1989).

The leopard-skin chief

The Nuer have as their mediator the leopard-skin chief. He can mediate only if the parties want to, and he cannot stop the parties from ultimately using violence. The leopard-skin chief has only one power. He can curse the party who refuses to accept what he sees as a reasonable settlement. The threat is that supernatural forces will help the stubborn party’s enemies if he persists.

American mediators generally lack the power of the leopard-skin chief. That said, the advocate’s strongest ally — if the lawyer can make him or her an ally — is the mediator. It is the mediator’s neutral voice that is most powerful in carrying the lawyer’s argument to the other side. This is true even if all the mediator does is ask a lawyer to put on the chalkboard his strongest points, then unveils the board to the other side.

BACK TO BASICS

Based on their mediation experience, some lawyers have suggested to me that certain basic themes might profit from emphasis. So — like a good mediator — I am their servant:

Repeating

For those who have passed the bar and are awaiting swearing in — congratulations, and remember: The advocate’s strongest ally — if the lawyer can make him or her an ally — is the mediator. As to how you do this, we have to wait for the swearing-in.

Manipulation

The mediator knows the lawyers could be trying to manipulate. But the mediator is often aware of the manipulation. Good advocates know when to stop trying to manipulate, show some trust and make a straighter and more reasonable argument. Honesty can buy an advantage.

Endgame

When parties go to a commercial mediation, there seems to be something like an 80 percent chance or better of settling the case. This means the lawyer should probably act as if the mediation session will be the last step in the case and prepare the client for that. To tell the client “we are just going through the motions” and then encounter a circumstance of serious endgame bargaining is not prudent.

Defining event

Often lawsuits bobble along like a play in search of a theater; they need a defining event before both parties and lawyers get serious. Mediation can be an event like that. If the mediator is effective, everyone will focus on the matter in a way that they haven’t before. That is one reason mediations are successful.

Briefs

The mediation is the time for the lawyer to do his or her best brief. See “Endgame” above. Mediators read them; they get paid to.

Exchanging same

The lawyer should consider whether to give a copy of the brief to the other side, as well as to the mediator. There is generally no requirement that the parties give each other their briefs. The decision of whether or not to exchange briefs involves weighing many considerations: free discovery versus the power of the client’s case or the weakness of the other side’s; disclosure of expected testimony, a preview of the jury summation.

The advocate can give only a portion of the brief to the other side — or the whole brief, but with a “secret” annex going to the mediator and discussing material that the attorney does not want the other side to know. The process is what disputants and lawyers make of it. Flexible, it bends to imaginative sculpting.

The stage

The mediation can be the stage for displaying the hurt, credibility, charm and jury appeal of the client. And the clients can talk directly to one another across the table. Like trial, this is a lawyer’s drama; scripts and rehearsals are available. But so are first-night jitters.

Timing

Sometimes during a mediation the lawyers and the client will find themselves in some particle-board and tubular-steel setting with coffee and newspapers, just waiting. This is time well spent. Timing, rhythm and pace are all important in mediation. Catharsis can take a while; so can acceptance.

The suppressed

The mediation experience can bring to the surface issues that are not in the pleadings. Sometimes these are the true issues between the disputants. The mediator works hard to keep sitting and find what is really going on. It takes time to release meticulously suppressed issues. But when they surface, the mediation can proceed on the fast track to resolution.

No money

While money is to this society what cattle and water are to the Nuer, non-economic considerations can play a remarkable role in commercial mediation. Some have pointed out the power of an apology, appropriately timed and tendered. But advocacy may also involve asking for a non-economic concession — even one the advocate knows he or she likely will not get. It may put other demands in a new, or re-framed, perspective.

New look

Once discussions have foundered, the mediator knows that, of the people in the room, the parties are not likely to move on their own. It is up to the mediator to step back and find a new perspective or approach. The lawyer should anticipate the possible re-framing, or the mediator’s new perspective may be suddenly unfamiliar and disconcerting.

Horrors: Imagination

When discussions bog down after hours of negotiation — usually about 5 p.m. — the role of imagination is sometimes called into play in mediations. The mediator had best not have lost his or her imagination in the second year of law school; part of what the disputants are paying for is creativity. But when the clock strikes or beeps, in a soundless room, the lawyer’s own imaginative suggestion may prove sublime advocacy.

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By Robert M. Smith

May, 2012

Shhhh!!

This article is for general counsel, corporate counsel, in-house counsel and anyone else who advises a company about law in return for a paycheck (and options).

It’s not for private firm or solo practitioners, however, much they may want to take a peek to see what in-house folks look for and want.

Just pretend, please, that I’m sitting in a rocker on the porch of the law library, with a corn cob pipe in my mouth and a large chocolate Labrador at my feet. I’m going to take you back a few decades in time, when mediation was — no kidding! — still being confused with meditation.

At that point in my life — unable to keep a job — I’d already gone through a few careers (Washington correspondent, infantry lieutenant and several law jobs). I ended up being asked to make sense of litigation at a big bank — first the inventory of domestic litigation, then foreign litigation.

I really loved being a trial lawyer. But I saw this as a systems problem, and following prolonged and deep meditation, I realized any system based on trying all these cases, here and abroad, would not work. It would not work in money, in time, in keeping business relationships, in our getting on with the business of banking … it just wouldn’t work.

EARLY, GLORY DAYS

So I began reading up on alternatives. These were the early, glory days of ADR theory at Harvard Law School. And there was a group of corporate litigation lawyers who were trying to put the theory into practice. We endured grave hardships — like meeting once a year at Aspen, Colo., for wine-enhanced conferences on the eve of the Aspen Music Festival.

But it began to work, haltingly. We developed a pledge: Our companies pledged in every case to look into the possibility of using mediation to end the dispute. (This also reduced the perceived problem of looking weak by suggesting ADR — remember, we looked at it in all cases.)

Then we began using law firms who knew what the heck mediation and the other tools (like mini-trials) were, and had some glimmer of how to use them. Then we began looking for mediators who didn’t say, as a judge, I’ve done 10,000 settlement conferences; in fact, we tended to avoid them unless they also had mediation skills.

By the way, it surprises me that in-house lawyers seem almost always to defer to outside counsel on the choice of a mediator. The folks in the company would appear to be at least as well-qualified to make the choice as the firm lawyers, and it is their company’s case.

On we marched — past Aspen — and got our computer people into the act. Case budgets (budgets!) began. And so on.

LOSING WEIGHT, REDUCING YOUR HANDICAP

So what, granddad? I can hear you grumbling.

Well, folks, I’m here to tell you: Things haven’t changed that much. And …

If you’re in house and want to get a promotion, a raise, a bonus, more options — not to mention lose weight and play better golf — there are (at least) six commandments:

I. Think outside the box about business disputes.

Apply the techniques of mediation. Ask what the other side really wants from all this folderol.

Hire law firms that understand they must do this before they sail forth on the twin seas of discovery and motions.

You say, “Everybody says this. What do you mean?”

I had a case once against a bank I represented, in which the plaintiff gave every hallmark of irrationality. Helpful dialogue seemed to last as long as a Popsicle on a summer day in Amarillo. I used to use jury consultants, I thought, so … I hired a psychiatrist — the best I could find — to advise. The case settled.

II. More to come.

Make sure outside counsel understand that if they get rid of the case quickly and economically, there will be other cases coming. And keep your word.

When I ran my own law firm — which came to represent three dozen banks, among other companies — I understood that when we mediated a case to settlement, we were making perhaps 10 to 20 percent of the fees we would earn if the case had gone the distance. But we got more clients, and more cases.

The carrot of committed, continuing business is one heck of a vegetable.

III. A dispute is a …

Good mediators (and you know what I mean by that, or your colleagues do) are in the business of helping solve disputes, not just lawsuits. So if a deal is proving elusive to your business folks, ask whether the law department can bring in a facilitator, a negotiator, someone who is trained to assistant negotiations — heck, a mediator — to help get the deal done.

That is what happened in London at a negotiation I assisted that led to a merger involving a billion dollars or so. It began in a board room on the Thames at 9 a.m. and ended at 1:17 a.m. with an exhausted mediator (those corridors were long), but a signed agreement.

Maybe your bosses in Silicon Valley will stop seeing their lawyers as barriers to business and deal-making and understand what well-trained, uh, business professionals can do. They may ultimately even come to move your offices to the main corporate campus.

IV. Managing well-trained, uh, business professionals.

I always thought candor and closeness was the key to managing outside firm lawyers. There are, I’m sure, books on this subject now. I insisted on the normal things like stable staffing, budget, etc. But I also insisted on a nearly immediate assessment of the possibility of mediation. Our aim was generally to get rid of the case, as quickly and as cheaply as possible (including legal fees). Their challenge, I explained, was to get us there.

I can’t tell you how many times outside counsel said, “We don’t know enough about the case yet. We need more discovery, more depositions, more of a feel for these curmudgeons on the other side.”

And how many times I said, “We’re running a business here. My clients are trained to make decisions in circumstances of uncertainty. They’ve been trained in that since business school. And that’s how they make a living. So we need to know.”

What are the uncertainties in this case? And what’s your best guess? And if your Palo Alto ranch house were on the line here, what would you do?

Lawyers are — appropriately — risk-averse; successful business people are — appropriately — not. They recognize that you cannot know both position and momentum (grâce à Heisenberg).

V. Incentivize.

I hate that neologism, and you’ll notice I’m biting down on the stem of my corn cob and my Labrador is growling when I utter it. But people — business people and lawyers — seem to have permanently misplaced “motivate.” I can tell you only that, as a mediator, I take my words as I find them.

When the outside firm does a superb job of wrapping up the case, for Pete’s sake, give them a bonus.

As an aside, you have no idea how I feel when I help resolve a multimillion-dollar case and watch Montblancs skim over vellum as the deal is finalized after a day of mediation — eight hours at my modest rate. Barely enough to keep the Lab in bones. So … what about a bonus? Not ethical — can’t have a stake in the outcome.

Having read this far, I’m sure you are in sympathy with me, and can feel the tears come, when I tell you about the thank-you case of French red wine that arrived at my office in London after a successful mediation. Following the old New York Times rule, I was obliged to drink one bottle in one sitting (yes, with colleagues) and return the rest.

You were probably unaware of the heart-rending nature of some mediation, or post-mediation, activity. You probably think the mediator’s world consists just of those (awful) little mints or candies that one of my large, institutional competitors gives out.

Giving an outside lawyer a bonus — money or something else — is a big deal. I once gave as a bonus a letter to the managing partner of a large law firm supporting partnership for a senior associate on the case.

VI. Forget law school.

To the younger in-house lawyers, I say: Forget law school. (Just the way you have forgotten everything you learned for the bar exam.)

The older lawyers have forgotten it a long time ago. (Except for annual donations to the good old Squib School of Jurisprudence.)

What your clients and colleagues want to know — relentlessly — is how this imbroglio is going to play out in the real world, if it rolls forward.

To answer the question well, you need experience, and especially trial experience. Or an outside lawyer with trial experience. Or a mediator with substantial mediation experience and experience as a trial advocate. This is important because in mediations, often the clients — on both sides — have never been given a full-bore, unvarnished rendition of what the other side is going to say in court. As offensive as it may be, bringing clearly to life the real-world backdrop of the case is critical.

For example, I offer — I don’t press, but I offer — to give (in private caucus, of course) the summation the other side will likely give at trial. Then I offer the other side the same chance at their adversary’s likely summation.

This diplomatic dose of bitters — if that is what it is — has nothing, well almost nothing, to do with law school. But it has everything to do with a realistic environment for settlement. The mints and candies can come later.

You know there are many more than six commandments, but my editor — with full justification — refuses to use his Montblanc on more than this number of words. And anyway, the Lab needs to be walked, and I need an uninterrupted puff on my corn cob.

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By Robert M. Smith

May, 2012

We looked foolish trooping through a small English market town carrying an antique French ormolu mantel clock.

But we would have looked even more foolish without the clock.

And I almost missed the cue that led us to the clock — and the resolution of the case. All credit goes to my sharp-eared Australian assistant, Danny.

We were in the town mediating a dispute involving one of the two major firms of solicitors in the area and its former office manager. Suit loomed, with unhappy small-town publicity likely for both. The manager’s leaving the solicitors had been less than happy, and recriminations continued for some time after the departure.

How much money? I thought.

THE CLOCK

We met privately with the former manager. Somewhere in her tearful recounting came the phrase I missed, so unlikely was it. She said that she would have gone away quietly, if the firm had just kept its promise. Promise to do what? Promise to give her the clock.

Clock? What clock?

Why, of course, the antique French ormolu clock that she said the partners had promised her, but not given her.

Step one: Would the partners agree?

Yes, they said. But they didn’t have the clock.

Could they buy one? They didn’t know. It had been for sale at an antique shop in the town. Who knew whether it was still there?

ANTIQUE SHOPPING

Partners, assistant and I decamped for the antique shop. A bit dusty, I thought, and a bit crammed. No French ormolu clock was in immediate sight.

Ah yes, the proprietor said: “Here ’tis.”

And there it was.

But, the antique dealer said, he had promised it to a customer.

For special and pressing circumstances, I said — which, unhappily, I can’t disclose — you must break your promise and sell it to these lawyers, to whom it has particular importance.

Another negotiation ensued about prising the French ormolu clock from the shop owner.

Success!

SHATTERING FEAR

Pounds sterling changed hands, and the procession made its triumphant if unsteady way back across town, with the partners bearing the French ormolu clock. (I stayed clear, and I forbade Danny to help; fear of marble shattering on paved high street struck terror in my cowardly heart.)

Former manager wept — this time with joy. Partners sighed. Assistant and I scrammed before the antique dealer could have second thoughts.

Ah, you ask, but what are the lessons (other than take care with delicate items)?

• Listen, listen, listen. The French ormolu clock was so unexpected I almost missed it.
• Stay involved: They need a clock — help them negotiate for the clock. Why not?
• Remember please the great value of non-cash items.
• And the keeping of perceived promises.

THE WALL IS MISSING

Back home in San Francisco — in the Mission district, to be exact — 40 people or so faced me in a conference room. Some of them didn’t speak English. Some of them didn’t have money for the parking meters. Some of them were wealthy property owners and developers. Some were passionate artists. Some were lawyers.

The argument concerned a building that had been redeveloped. The building had had a mural on one exterior wall. No more. Artists’ rights had arguably been trampled in the destruction of their work.

Emotions ran to a boil over such issues as the definition of “art.”

“How can you call this art?” the developers and real-estate folks pleaded loudly, pointing to the “before” photos.

“Maravilloso!” the artists and their supporters chanted, furious with the crass, uncultured merchants.

Both groups looked at me, seeking support for their respective, obviously correct positions.

DOWN THE HALL

I inspected the photos with care, paused, then said, “Artists, please come down the hall.”

Separate caucuses ensued. Statutes were consulted, photos viewed and reviewed. Parking meters fed. The conference rooms sounded like multiple versions of the Tower of Babel.

The one clear point was that the art — if those who argued it was art were right — was gone, not to be brought back as it had been. Not an available solution — although maybe another, “replacement” mural?

Not to be.

What was to be was a monetary resolution — executed by all, of course, before departure.

Sometimes even art can find its way to join with Mammon to avoid litigation.

THE WALL TAKES A BEATING

Why, I thought, is this guy smashing a hard-sided attaché case hard against that frail sheet-rock wall?

It was Oakland. It was a conference room. It was a heated mediation — I can’t even remember the subject in the vivid memory of the wall-banging.

A young lawyer was making his point — either for theatrical effect or out of authentic, passionate disgust with his adversary’s pronouncements.

What to do?

Call the National Guard? Offer soothing herbal tea? Halt the mediation?

I waited for the rant to stop.

DEPARTURE

The young lawyer spared his attaché case the final death blows, turned to me, grabbed his client by the suit coat, and announced that he was leaving.

As he left the room, still huffing, I had to decide whether to intervene.

“I’ll come see you folks in a few minutes in the waiting room,” I said as calmly as I could manage. “Just wait for me there.”

And they did.

His adversary pardoned what he saw as the youngster’s inexperience.

I speculated to myself that it might have been an attempt at advocacy by theater.

Whatever it was, the sheet-rock held, and the matter resolved. But it resolved with far greater difficulty than it might otherwise have. Did that mean someone paid, or got, more or less than he or she otherwise might have?

Honestly, I doubt it.

Do you find it effective mediation advocacy?

Personally, I still find myself relaxing when I see lawyers with the old-fashioned leather briefcases. Nothing against Samsonite, mind you — except as an advocacy tool.

BEFORE MAKING WAR

Have you thought of mediation as a pre-dispute process? Especially if you are in-house counsel?

I once gave two lectures — one in Nairobi, the other in Singapore — to multinational bankers on using mediation in their various countries to solve disputes with their clients before the disputes blossomed into expensive and lengthy lawsuits that, in addition, destroyed potentially mutually profitable banking relationships.

I tried to train the bankers to self-mediate, and failing that, to use mediation.

I confess to having been shameless in both places. I mentioned the possibility — even probability — of corporate bonuses to executives who extinguish disputes, stay focused on making deals and profits, and build their careers with continuing relationships of mutual benefit with their clients.

Shameless, yes. But it caught their attention. And they may even be out there now, in Asia and Africa, laying aside their Samsonite cases in favor of financial and proprietary deal-making and deal-adjusting apps on their iPads. Who knows?

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By Robert M. Smith

April, 2012

Editor’s note: The number of arbitrations and mediations have increased steadily in recent years as the price of litigation has gone up. Robert Smith recounts his experiences around the world as a mediator, with tips for neutrals as well as attorneys involved in alternative dispute resolution.

FLIPPING THE EASEL

We had spent a frustrating day and evening trying to end a dispute that had morphed into a lawsuit in Silicon Valley. Unusually, everyone, including me, voted to continue the next day.

So off I went to a pricey room in the Fairmont. Over a solitary dinner I reviewed the bidding, and realized I had been sucked into the problem instead of standing in my designated mediator position — outside it.

With the comforting assistance of a San Luis Obispo chardonnay, I got an idea.

The next day I walked into the conference room where the joint sessions took place, ambled to the front, and turned upside down the easel tablet I had worked with the day before.

This bit of nonsense rendered the business puzzle even more opaque, but it did capture the attention of everyone, executives and lawyers alike.

“We just have to get a new point of view,” I kidded. And then I offered them another approach to the problem. It turned out not to be the final approach, but it broke the logjam, and the case settled.

And it settled in a touching way. With the documents signed on all sides, everyone in the room stood up and applauded. I didn’t understand right away; they were applauding for me. Beet red, I vowed to myself to always consider turning the easel upside down.

TOO MANY BOXES

There were boxes and boxes and boxes of computer information delivered to me.

What, I thought to myself, am I supposed to do with these? What will I do with these?

The case to be mediated involved high-stakes allegations of bad computer software work overseas and the foreign entity wanted to make sure I understood every jot and tittle of what it had done.

I said I thought this would likely be a big waste of both time and money, and asked for summaries from the engineers on both sides. I asked the engineers to write a joint statement on what they agreed on, and separate statements on what they did not. This compelled them to work together a bit, and it also — grâce à  Dieu — sharpened the issues.

I then emphasized, as you would, the common ground they had found and pushed them in the direction of analyzing the items that remained. This seemed to give them both a sense of what they had already accomplished and the “engineering” challenge of resolving the rest. The business people chimed in, the matter was resolved, and the boxes and boxes and boxes were taken away, unopened.

So, please consider: What do you really need to have the mediator know? The kitchen sink — and the attic, the basement and the garden shed — may be interesting, especially if you have all lived on the property daily for two years, but from an advocacy point of view, does it get you where you want to go?

Unhappily, I stubbed my toe after this settlement. Taking a break, I wandered around the floor we were on in the Silicon Valley building — just to stretch my legs and relax. Oddly, the door to one of the break-out rooms was closed, but everyone (I thought) was in the large main room chatting and packing up. Not quite. As I nonchalantly opened the door, in front of me, on the carpet, was one of the foreign business executives, stretched out fully, praying. I said nothing and backed out, remembering that no matter how many times I had run back and forth between rooms, how cordial and informal relations were with parties and lawyers, no matter how happy and firm the settlement was, for Pete’s sake, let the closed doors to “empty” break-out rooms stay closed.

TWO LANGUAGES BETTER THAN ONE

The mini-sausages in the chafing dish on the side table were a little peppery, but I was glad to be able to munch during the mediation. Here I was in Frankfurt, trying to assist in the negotiations about a probate dispute. The dispute involved property in California, Danish law and a German family member. I had a German lawyer as an assistant in case my German proved less than ausgezeichnet (excellent).

To my amazement — and the German lawyers’ — my German, forged in the fires of having been a Fulbright Scholar at the University of Tübingen years before, sufficed. The case settled, the sausages were eaten, and heaven knows what national courts, what jurisdictional problems, what interpretation of probate instruments, what polyglot wrangling, and how many chafing dishes hither and yon were avoided.

If you have the languages, don’t flaunt them, but do use them; they forge a remarkable rapport with those whose trust you are trying to gain. They’ll pardon the occasional lapse, particularly in the case of a mediator from a country known for its stubborn adherence to a single linguistic principle: Stick to the language you grew up with; if it was good enough for your kindergarten teacher, it’s good enough for you.

POWER OF LANGUAGES

Back home in San Francisco, there was a squabble royal between a Quebec outfit that had sold equipment to a Chinese company, and the company. The mediation took place on two days, separated by a week or so.

I managed to strike up a rapport with the lead Quebecker by speaking French — to the point where I was able to prise him off one of his cell phone calls to a girlfriend in Australia. No mean feat — well, as I think about it, maybe it was mean.

So I was astonished when, the second session came and he showed up but refused to speak French.

My stomach sank many floors through the Embarcadero Center.

“Pourquoi pas?” I gasped, thinking my French must have been fully incomprehensible the last time.

“We gave away too much the last time,” he said in English.

In his native tongue and comfortable, he felt he had been unduly flexible with the Chinese.

I stuck to English that day — until the very end, when the problem was signed away. But the power of language, or languages, stuck with me.

WHEN IN BRUSSELS …

In Brussels, on the other hand, there was (almost) no law at all involved. The half dozen women running a successful niche company had only one problem: They couldn’t manage to work together. Resentments were at full boil. And they were stuck with both profit and unhappiness.

One of the women thought, legally, contractually, she had the power. It developed that she might have power over a company that, however profitable, might find itself on the shoals because of a crew ready to jump ship. The company was at once good for all of the executives, and none of the executives.

They couldn’t talk to one another. I asked each of them to write me a private letter with her perspective before we arrived at the Belgian hotel where the mediation unfolded. What they told me was both informative and depressing.

Slowly, then in a torrent, complaints were aired, opinions shared, and ultimately, a documented handshake achieved. Lawsuit avoided, legal bills minimized, business carried forward.

It took what little remained of my powers of persuasion that evening to get into the Belle Époque brasserie on rue des Chapeliers for mussels and a stein or two. OK, I have to confess: Patricia (restaurant hostess) and Ricardo (concierge at my hotel) were apparently quite close as Belgian teenagers.

There, in the brasserie, surrounded by exemplars of Belgian surrealism on walls and ceiling, and platters and glasses on the granite table, it seemed that turning the easel upside down; refusing to open dozens of boxes; trying to speak to disputants and their lawyers in a language they not only understand but are comfortable in; treating company executives as having the maturity, self-interest and skill to work things out, and bribing the concierge all sounded not too impolitic.

In fact, as I looked at the expressively painted ceiling, I thought even Magritte may have approved, and I summoned the waiter again.

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By Robert M. Smith

April, 2012

Why can’t I understand what this guy is saying?

That’s what I thought, as I struggled to conduct my first mediation in England.

I was about to take over as Director of Mediation at the Centre for Effective Dispute Resolution – CEDR –in London, probably the largest commercial mediation center outside the United States. As a simple-minded test, the Centre’s chief executive sent me out to mediate a dispute in East London between a Yuppie couple and a less affluent youngster.

They were neighbors. The youngster liked to play music—loudly. And the couple’s protests had landed on unreceptive, if not deafened, ears.

A simple neighborhood dispute…with one problem: I couldn’t understand a word the young man said.

What to do? (I had an evaluator with me watching my performance—so this was not an idle question.)

IRISH AUNT

Fortunately, the youngster, pocked by acne as I recall, thin as a rail, and dressed in dark neo-Punk, had at the table with him for support an aunt from Ireland. I could understand her, probably thanks to my childhood in Boston.

While I thought about explaining my problem and the impossible situation, the dialogue between the rocker and the young couple—one of whom worked in the City of London as a financial type—began. It was like a fast badminton game of which I could see about half, but half—with the Irish aunt in the wings and a fair amount of mediation experience in my kitbag – fortunately proved enough.

When I teach mediation, I sing the praise of silence for the mediator. Yes, the mediator is supposed to listen. But the mediator sometimes serves best by entirely abstracting himself or herself from the conversation and letting the disputants have at it. I sometimes move from the conference table to a chair I put, literally, in the corner of the room. I’m there to intervene, if I have to, but generally I don’t have to.

GENTLEST OF INTERVENTIONS

In any event, with the gentlest of interventions, the neighbors found an amicable compromise, and my first UK mediation ended with a resolution. I took over as Director of Mediation the very next day, as I remember.

The only other language problem I had in the UK was at a cocktail party with the very rich and titled. I found their accent and speed of speech nearly as indecipherable as the East Ender’s. I glossed that incomprehension over, I’m afraid, with champagne.

So…sometimes he or she mediates best who mediates least.

On the other hand, as a mediator, you sometimes have a hard time getting heard – literally.

I was asked to mediate a merger of two transnational companies in London. No law suit was pending; the dispute concerned the terms of the merger, which had proved maddeningly elusive. I was engaged by a Scottish barrister and an English solicitor.

When I showed up at the posh board room with an enormously long conference table and a sweeping view of the Thames, someone—with apologies to The Three Bears—was sitting in my chair. I mean the chair at the end of the table, the neutral spot.

USURPATORY WRETCH

It turned out the usurpatory wretch was a lord, the chairperson of the larger company – pace aristocrats in commerce . He evidently felt this was his show. How could I assist this negotiation from a corner? Would there be a negotiation?

I managed to retrieve the neutral spot. (How is the subject for another article – likely styled Yank Mediator Displaces the Titled.) Down the length of the table sat perhaps two dozen businessmen—they were men — barristers, and solicitors from all corners of the globe.

We made a beginning. Passions ran remarkably high. My efforts to urge calm were generally effective—until late afternoon when a solicitor from the Middle East would not stop his implorations, exhortations, and argumentation when I asked, with growing volume. He won; I shrunk silently into my neutral spot.

But there are, of course, cultural styles and cultural styles.

At 1:17 a.m. the merger documents were signed, nearly $1-billion changed figurative hands, and I was tucked into a hired car for the trip back to my Hampstead home.

So, I guess, this was an instance of enforced silence.

HUNGER-INDUCED

I can’t keep from closing with a story of hunger-induced silence. I apologize in advance for the fact that it’s another mediation story from the UK. The Brits seem to generate good anecdotes.

We were having hard slogging in a mediation involving an elderly couple and a financial institution in London. We had been at it all day, and the dinner hour was approaching. I asked my assistant/trainee to see whether she could arrange for some food; she was young and strong; I am whatever I am, but I was worried about the elderly couple.

She came back with no food. Everything nearby in the City, the financial district, had closed; not even bangers and mash were to be found, she reported pitifully.

I asked the partner at the host (large) law firm about securing some vittles. He said no problem, we have a canteen. I said great.

An hour passed without sustenance rolling down the corridor. Punctuated by pleas from me to the partner, another hour or so went by, without a morsel.

Finally, I had a quick look around near the conference rooms, and saw no evidence of a canteen.

I told the partner that.

He said, “Yes. I lied.”

“Lied?” I asked.

NO CANTEEN

“We have no canteen,” he said.

I went back and told my assistant. I saw her shamelessly eyeing the sugar cubes.

Put me in the “naïve” column. Lawyers do—uh—play a bit fast and loose in mediations, and I am used to that. And I am a barrister in the UK (Inner Temple), where—gads—horsehair wigs do somehow go “borrowed” from their owners in robing rooms.

But starvation?

I silenced the mediation just before 9 o’clock . That is, I shut it down on the ground that, in my view, it was not fair to the other side, about whom I was indeed worried. As I shut it down, the partner who had misplaced the canteen discovered his ability to get pizza within 20 minutes. As I recall, five cold slices materialized for my assistant and me – but no settlement did.

When I tell this story in England, the audience routinely says, “He lied to you? He lied?”

In the US, the reaction is: “They were using starvation as a weapon?”

PEANUT BUTTER CRACKERS

I am not sure precisely what these responses say. But, as for me, I have learned my lesson: I routinely pack peanut butter crackers, and advise any assistant I might have to do the same.

What, I ask myself, does all this mean?

• Don’t talk when you don’t have to, and when it might be unhelpful.
• Take into account the culture of both the parties and lawyers, and how they approach talking—and letting you talk.
• Persistently evaluate the candor (and merit) of what folks are saying, and—when things seem unproductive, let alone unfair – be prepared to stop entirely the conversation you are trying to assist. I have a bias—the resolution of the dispute; as they say in the UK, the case is my client. But certain silence beats potential detriment every time.

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By Robert M. Smith

December, 2012

When I speak about mediation, I am often asked (usually, by newer lawyers) what the basic rules of advocacy are. Are they, they ask, the same as in the courtroom? Well, not quite. Although I do believe a superb trial advocate is very likely to be a superb advocate in mediation – but take into account, please, my bias, given my own background as a definitely-not-superb trial lawyer and English barrister.

I cast aside anecdote here, and try – with great trepidation – to lay out a few basics. This effort, I repeat, is just one mediator’s view – and may be all wrong.

This exercise takes me back many years, when I waited in the old San Francisco City Hall Law Library, way up under the Rotunda. I would read old British books on trial advocacy – and, foolishly, seek to put the tactics into practice in my next jury trial. Then…one day, I came to a chapter in a horn-book urging the “appropriate” use of raising one’s voice in the courtroom. In quick succession, I had a petrified witness, a jury on the edge of their chairs, an opposing counsel with a very raised voice, and a tolerant, slightly amused judge. (Thank Heaven, it was state court.) Bar license retained, case won.

Seven Suggestions for a successful mediation

1. The presence of power
The decision makers have to be present. It is only a slight exaggeration to say that if this suggestion is complied with, almost any mediator can facilitate a successful result. During a dispute I co-mediated with Tony Piazza, Tony suggested to me that, with authority present, a trained dog could mediate cases to a resolution, and, without authority present, no one could resolve a case.

2. Put your wallet away
Think about whether there are non-monetary issues. Figuring out that there is a non-monetary element and figuring out what it is may require brainstorming in a group and before people are tired. It
may also require input from others back at the client’s office or home and at your office.

3. Ink it
You and the client might try to figure out on paper in advance how the economic and non-economic elements would get written down in a binding settlement document. In fact, you might bring a draft of a settlement agreement – something short that captures the main elements. It may avoid two or three hours of wrangling when people are tired and cranky.

4. Docs
Have with you at the mediation documents that are the basis of a contention you are making or that will rebut the other side’s position. This requires thought: You probably can’t bring a file box. What documents may prove critical? They probably don’t include the Third Amended Complaint or an expert report – the kind of documents that people sometimes bring. But they may include a contemporaneous memo, or a copy of a pivotal legal decision.

5. No offense
Unsurprisingly, it is not advisable to anger the other side in joint session. It tends to make them not receptive to your reasonable suggestions. You can also go too far the other way: Being unctuous is not helpful.

6. The power of apology
The power of apology by the client himself or herself or the lawyer in – for example – a sexual harassment case can be considerable, if sincerely and credibly presented. It may be imprudent to say this is the worst thing this company has ever done. It may also be imprudent to suggest this was a minor oversight. If you’re on the other side, you might talk to your client about the possibility of the other side’s offering an apology before they do.

7. Choosing a mediator

You can usually choose the mediator. What are some things worth thinking
about?

• Don’t pick a vendor, just as you don’t pick a firm for an expert or a jury consultant. Choose a particular mediator.
• Consider process expertise. Ask whether the person is an excellent mediator, not whether he or she was a good judge or a good litigator. Those are different skills.
• Select a style. Some mediators are more evaluative than others. Be candid with yourself and the mediator about what sort of process you want. You are, after all, paying for it. Good mediators have a range of styles, just as good litigators do. Some styles are better for some disputes than others.
• Can he or she bend an elbow easily at the polished table in private caucuses with you and your client? And with the other side?
• Think about expertise. How much does the mediator need to know about the subject matter? Many mediators will tell you that mediating a family dispute is not wildly different from mediating a business matter is not strikingly dissimilar to mediating the alleged breach of a software agreement or a catastrophic personal injury. Maybe….
• Two things seem important to me, though, if I were doing the picking. I would look for experience – just as you would in a trial lawyer. (I won’t forget losing my own first trial – and I won’t forget my adversary in it, a slick fellow if there ever was one. He recognized a greenhorn when he saw one.) And I would look for wide-ranging imagination, born of experience. Mediation is an arena where imagination and creativity can be remarkably important.

Robert M. Smith (www.robertmsmith.com) is a long-time commercial mediator in San Francisco. He ran litigation overseas for Bank of America, served in the Carter administration, was an Assistant U.S. Attorney, and had his own commercial litigation firm. He was Director of Mediation at an international commercial mediation center in London, and taught a seminar at Oxford. He has lectured widely, written a book on ADR, and was president of The Mediation Society. He has been selected several times as a “Super Lawyer.” Smith is reachable at rms@robertmsmith.com.

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