Many moons ago I purchased my first DLSR camera. I wanted to capture life’s priceless moments, from family vacations to watching my kids play sports and perform in recitals. In order to improve upon the craft of snaring great pictures, I took several courses and picked the brains of every professional photographer I met, often following along to observe those who would let me watch them in action. In much the same way attorneys consider themselves to still be “practicing” law, my love of photography is defined by my constant desire to learn new techniques and ideas. After thinking about how my love of photography has taught me to view the world from different perspectives, I realized that my approach to photography translated into making me a more effective Neutral.
Webster’s defines photography as:
The art or process of producing images by the action of radiant energy and especially light on a sensitive surface.
If you substitute a few words, you could very well be describing the Neutral’s role in helping to resolve disputes between parties in a mediation.
The art or process of producing resolution by the action of radiant energy and especially light on a sensitive subject.
Whether I’m looking to shoot a subject or capture memories, I don’t immediately whip out my camera and start snapping. If I am traveling somewhere that has historical sites or breathtaking landscapes, I often research the technical aspects of how to take the photograph. For example, when I traveled to Europe for the first time, I researched the best angles, locations, and settings for taking photographs of some of the iconic buildings and landmarks I longed to finally see in person. In addition to my research, I put a lot of thought into the lenses and filters I wanted to bring along, making sure I had the proper glass with me to memorialize the trip from any perspective.
The same preparation goes into getting ready for a mediation. I do not just show up on the day of mediation and walk in and start the mediation. I first have to ask several questions of myself:
- Have I reviewed the materials provided for me by the parties?
- Do I understand it thoroughly and, more to the point, conversationally?
- Are there concerns about personalities that I need to know about beforehand?
- Have I undertaken to call one or both of the parties beforehand to make sure I have a proper understanding of the underlying medicine or contracts?
It is one thing for me to read a bunch of medical jargon and understand it. But it is quite another for me to digest it in such a manner to be able to break it down and convey complex medical terminology and technical legalese to regular folks. Plaintiffs who were thrust into a lawsuit through no fault of their own after suffering an unimaginable tragedy don’t care if I can pronounce arcane Latin medical terms. They care if I can help them better understand what’s going on with their case.
Only my fellow photographers ask or care about the settings I used when composing a great shot. The rest of the world just notices whether you nabbed a great shot of the moon or whether they’re looking at a blurry hot mess. In other words, if I prepare for a mediation in the same manner in which I prepare for a photograph, the results of my efforts should look flawless and seamless.
The role of the Neutral is both art and process. When I snap photos of my daughter playing soccer, I first observe what position she is going to be playing. I then determine which side of the pitch she will be on, whether left back or right midfield. Then I look at the underlying story of the game and ask myself some more questions.
- Is this a higher ranked team?
- Are their girls older than our girls?
- Are they bigger and stronger?
- Do our girls look intimidated?
- Or are they loose and confident and talking about Tik Tok videos on the bench?
I also look at the light. Is it a noon kickoff where there will be no issues with sunlight or are the spectators relegated to the sunny side of the field where the field looks like 22 shadows chasing one ball? Depending on those factors, I take my camera and adjust the settings while simultaneously moving around the sidelines to where I can offset any negative hinderances for me getting the shots I want.
Even after doing my preparatory work in advance, when I arrive at the office to start a mediation, I feel like I do when I first get to the soccer field. I am on high alert observing and perceiving the interactions between the parties. And I ask myself some questions:
- Does plaintiff’s counsel have client-control issues?
- Is the defense attorney trying to impress her in-house adjuster?
- Do the attorneys have bad blood?
- Is the plaintiff nervous or appear out of sorts and overwhelmed?
Being a fairly good judge of character and a fan of people in general, I am usually able to pick up on a lot of intangibles just by interacting with the parties in all rooms before we meet for the opening session.
The nexus of art and process is compassion.
It means spending time with the plaintiff before the opening session. For the nervous plaintiff who is intimidated by everyone in suits, I start by helping orient them to their surroundings:
“Coffee is just down the hall in our break room.”
“The two fridges have sodas and sparkling water.”
“Snacks are in the baskets all around the office.”
“Bathrooms are just down the hall from the front desk where you signed in this morning.”
While it may seem perfunctory, giving folks a sense of ownership over their surroundings helps reassure them that they have some semblance of control. And it helps to put them at ease. The same kind of ice-breaker could be accomplished by talking sports, movies, or favorite streaming shows.
Compassion also means showing respect for the parties. I usually explain with a gentle touch that I am there to talk about what is often the worst day of their life. And I seek their permission to work in that space throughout the day. In such cases it is very important for the Neutral to respectfully listen as family members pour out their emotions and unburden their hearts with powerful testimonies about lives lost or memories forever tarnished. The Neutral’s job in those moment is not to judge or take down copious notes. Just listen.
Often times, the information may not be legally relevant or even admissible at trial. Yet these feelings are very real and of paramount importance for the families. When you can demonstrate to parties that you care what they have to say, a Neutral can earn trust. After building that rapport, I encourage them by noting that no questions are too silly to ask. Sometimes, I reason with them that I need to know more about them to better understand how to listen effectively in the other room so as to bring them the exact information they need to make a definitive decision.
I offer Kleenex tissues for moments when emotions bubble up. Other times, I offer a literal or figurative shoulder to lean on. In some instances, I’ve even held hands as a family prays, and I’ve received my fair share of hugs of support or relief at the conclusion of tense or emotionally draining negotiations.
Only after listening do I begin the next part of the artful process of mediation. That means I begin to let them know about me. It’s been said that people don’t care what you know until you show them that you care. I use my opening remarks as a springboard to both establish my bona fides but also let them appreciate the sincere passion I have for mediation. When I share with everyone gathered that I have worked as a claims adjuster, defense attorney, and plaintiff’s attorney, I usually get immediate buy-in from everyone. Even the least sophisticated of plaintiffs have shared with me over the years that they felt relief when they realized I could talk to the folks in the other room. I don’t spend a lot of time just reading my resume. Merely mentioning my three different careers within the law are enough. Should the parties require more, I’m happy to oblige, but I immediately begin letting them know that I have set aside my affairs for the day to assist in their efforts to reach a settlement.
In addition, I make them a few promises.
First, I assure them that I am going to always provide for them different speeds at which they can proceed. By that, I mean that I will give them medium, fast, and hyper-warp options to negotiate. What I then explain is that there are ways we have to cut to the chase during a mediation. For example, if the parties start using the same increment of money to go back and forth, I tell the parties that I will figure out where those moves would meet and ask them if they just want to jump to that point. My goal is not to settle the mediation in one move, but letting them know that I am going to be judicious with their time builds trust. And trust is important.
Second, I assure them that I am not graded on whether they like the information I bring to them. Rather, I let them know that a Neutral is graded upon whether the information delivered is conveyed accurately and efficiently. The bigger point is letting them know that their attorney can game plan and pivot depending on whether the information is good or bad and that I am not to be blamed for the latter.
Third, I make a deal with them that I will shoot straight with them and that I need for them to shoot straight with their attorney. I advise that they are not the best arbiters for what may or may not be important to their case, so that they need to come clean with everything so their attorneys can assess the relevance and importance of information.
The artful process of establishing ground rules for rapport usually builds a relationship that allows me to work effectively in the plaintiff’s room. I do the same thing in the defense room, with a little less remedial slant, often building rapport by being able to talk knowingly about the challenges defense counsel and claims adjusters may have in evaluating cases. Again, I ask them some questions:
- Did plaintiff’s counsel provide updated medical records and bills in a timely enough manner to get them reviewed by claims and do you have sufficient settlement authority?
- Did you get the authority you asked for in your pre-mediation report?
- In medical malpractice cases, do you have the doctor’s consent?
- Is there enough coverage?
- If this is an excess policy or a UIM policy, were you given timely notice?
- Do the policies stack?
- Are there internal politics where you are behind an 8-ball and handcuffed from being able to negotiate effectively?
Once those basic tenets of the process are established, the focus shifts back to more of a nuanced and artful approach. The process is intertwined with both the Neutral’s energy and ability to shine a light on the relevant issues that matter. Both sides will present a narrative that best supports their side’s arguments. A Neutral, however, must wade through some of the rhetoric and focus energy and light to highlight matters in a creative way that the parties may not have ever imagined themselves.
In much the same way a photographer, who is not part of the scene, can capture an image that is both refreshing and exciting for one whose image was snared, an objective Neutral may bring fresh eyes and perspective to long held friction and deeply held beliefs about a case that do not appear, from an objective standpoint, to be as each side respectively imagines them to be.
I have learned over the years that one important key to capturing a good photograph is understanding the light and having a unique perspective. I cannot think of a more apt metaphor for describing mediation. At its core, the job of a Neutral is to shine a light on the issues in the case from a unique perspective. Every Neutral comes into a case with no dog in the fight. Often, the problems associated with trying to resolve the case involve taking a look at the issues from a different angle than the parties themselves actually present.
As a final thought, I share with you an important learning lesson I discovered while trying to prepare to shoot the world’s famous buildings like the London Bridge, Colosseum, and Eiffel Tower. An article I came across during my preparations suggested something entirely different than mundane talks about shutter speed and f-stop. The author pointed out that everyone in the world has seen a picture of the Eiffel Tower. Rather than simply take that photo, capture a shot of someone seeing the Eiffel Tower for the first time. I took that lesson to heart and one of my favorite shots of the hundreds I snared during our trip was of my daughter’s honest reaction to seeing the Eiffel Tower from our tour bus for the first time.
Mediation is not necessarily always about simply delivering the information or dollar amount from one room to another. More often than not, it is equally important to observe and listen to the “reaction” of the information being conveyed so you can better understad how people perceive it; thereby enabling the Neutral to do their job more intuitively and thus more effectively.
My love of photography has made me a better Neutral. I look at every opportunity to mediate as a chance to achieve resolution in a manner that no one else can deliver. I work very hard each day to make sure I do all that I can do to capture the light and use my energy to shine it in creative ways to help the parties reach a compromise. More often than not, my efforts mesh with the common goals of the parties in such a way that we create a masterpiece for which we can all be proud.