[PODCAST] Smart Mediation Strategies: A Discussion With Judge Nancy Allf and Kim Keenan on Maximizing Legal Outcomes

In this podcast, JAMS neutrals Judge Nancy L. Allf (Ret.) and Kim M. Keenan, Esq., discuss how attorneys can maximize mediation. The conversation centers on the importance of thoughtfulness and strategy in mediation, with both neutrals emphasizing the need for effective negotiation strategies and understanding the parties' emotions and perspectives.

Ms. Keenan and Judge Allf also discuss mediation do's and don'ts—emphasizing the importance of preparation, storytelling, listening and managing expectations. On the topic of preparation, the neutrals highlight that the most successful lawyers prepare for mediation like they prepare for trial--ensuring that they understand the strengths and weaknesses of their case, category of damages and other elements that are central to the negotiation proceeding. From there, the neutrals discuss considerations for what to look out for when selecting a mediator, including technical experience, creativity and objectivity. As they look to the future of mediation, both neutrals anticipate that technology will play an increasing role in the mediation process, particularly as artificial intelligence (AI) continues to advance and AI-powered tools become more available. 

[00:00:02] Moderator: Welcome to this episode from JAMS today. We're talking about how smart lawyers maximize mediation. With us are two JAMS neutrals: Kim Keenan, a former trial lawyer and general counsel for the NAACP, and Judge Nancy Allf, who served on the bench in Nevada's Eighth Judicial District Court for 13 years

Thank you both for joining us. Kim, I'll start with you first. Mediation is such a specific feature of our legal system, right? And so, what makes it different than other forms of dispute resolution, and how do they typically play out?

[00:00:46] Kim Keenan: So, mediation is the most successful form of alternate dispute resolution—I'd like to say in the world—because the reality is—it is that most people don't want to put things in other people's hands. Being able to actively negotiate and create the outcome that you can accept, live with, want, need is just an amazing, amazing thing. And it is a great feature of American law that we have recognized that if the parties get together—usually with a third party who helps to kind of smooth out the edges of advocacy—because right—when you're an advocate—I was a trial lawyer—it's win or lose. There's no in-between. There's no halfway. There's sort of I won, but not really. So, mediation is a way for people to take the win, win. Everybody gets the W; everybody walks away. We put away all our tools of litigation, and we move on with our lives. So, I think it's great, and I think the reason is because people have a say in the outcome. And when the parties have a say in the outcome, that's when you get a better result.

[00:02:00] Judge Nancy Allf: What Kim said is absolutely correct. No. It gives the parties the chance to be heard. Sometimes, someone needs to tell their story, even if it's not in front of a jury or a judge, getting that chance to get that story out and then add to that. The chance of finality is the key to success in a mediation.

[00:02:24] Kim Keenan: Judge Allf, you are so right. I mean, you're so right. Because so many times, when my clients just wanted somebody to hear how they felt, and having someone hear it and then say, “You know what? I think we can compromise on this, maybe not all of it, but this.” You're right. It's at the heart of it—is everybody gets to sort of get their feelings about it out, or get their position out, and that can be a game changer for reaching the resolution.

[00:02:56] Moderator: But to take advantage of mediation, I imagine you have to really do you—do your homework. You have to be really prepared. Kim, you've seen probably the good, the bad and the ugly. How do smart lawyers prepare for mediation? And how do they prepare their clients?

[00:03:11] Kim Keenan: Smart lawyers know that if you prepare for mediation like you prepare for trial, it means you won't ever make it to trial, and that's so, so key. A lot of people phone it in. They see it as pro forma. I know a lot of courts do mediation. In fact, my first training was in a court mediation program, and it was excellent. But I saw a lot of lawyers just kind of phone it in. They, you know, they half-answer the questions that they're given and that—and then it shows in their results. But lawyers who are prepared, like they're ready to go to trial, they get much better offers. Or if people start in a certain place, they end in a different place. And I think the difference is the recognition that you have to have a strategy, just like you would at trial, for how you're going to reach a resolution.

[00:04:03] Judge Nancy Allf: Well, for me, the briefs are just paramount. And when a lawyer is not willing to talk about the strengths, the weaknesses of their case or prior negotiations, that's a red flag because some cases may not be ready for mediation until the lawyers have done some of the hard work. They need to know, in a medical case or in an injury case, what the medicals are and if there are liens and if there [is] treatment. They need to know their category of damages, and they need to be able to quantify those. And some may be negotiable, but the strengths and weaknesses of the case, to me, is really the key, because until a lawyer realizes that they could lose at trial, sometimes they just don't take it seriously enough.

[00:04:51] Kim Keenan: Totally right. I mean, you know, I feel like—I feel like we've known each other forever, and we're 35 hours away. You know, I feel the same way. You know, when I get a mediation statement and it's inaccurate, there's nothing worse than when I get there and I think one side's going to say the last offer was X and it turns out it was Y.

Or, my personal favorite—and I had this happen—where I had sat with plaintiff's counsel, we've gone through the case—I've got the what is good and what's bad—and they told me that the offer on the table was like—let's just say, for the sake of this podcast, it was like $5 million—so I get to the other side, and I'm like, “Wow. They were at $5 million.” And the other side goes, 'They said it's $2 million, and we think that's way too high.” And I was like, “Oh, no. What do I do?” So, I texted counsel, and he confirmed that, in fact, they were right. Who wants to start off their mediation with your side? Now I don't even trust what you have to say, because the other side is giving me accurate information, so I have to believe that they're more prepared. It's not a good place to be, just not a good place to be. We settled it, but it was not a good place to start. And I learned from that never to say numbers until I hear the sides, both sides, say what the numbers are.

[00:06:07] Moderator: So, I imagine there's somewhat of an art to putting together a really effective mediation statement that sort of sets the tone for the rest of the mediation. What are some of the—the do's and don'ts when putting together a mediation statement?

[00:06:23] Judge Nancy Allf: The willingness of the client to be there. You know, sometimes I'll say to the client directly, because I want to hear from them, “So, are you here because you want to put this behind you, or are you here because your lawyer made you?” And the appetite to settle is always something that you have to determine. These cases never settle unless you, as the mediator, can gauge the discomfort. And until it's equal on both sides, that discomfort isn't going to result—unless they get uncomfortable—it's not going to result in a resolution, because nobody really leaves thrilled.

[00:07:03] Kim Keenan: Yes. A great resolution means that nobody's thrilled or happy. I totally, totally agree with that. And again, it's the preparation. It's knowing the value of your case. It's being able to explain why a jury will understand your case, or being able to explain what makes this case unique and more valuable than some other case.

[00:07:27] Moderator: And just following up on that, what tactics and strategies have you found effective when it comes to settlement demands?

[00:07:36] Kim Keenan: I think people who can really, really either drill down on the why their case is so special, or people who can really tell a story. I mean, even again, I think it's like preparing for trial. If you've got a great theme that you can posit in mediation, it's something that everyone will remember, and it may be a difference maker in terms of how people see the case. They may be thinking it's this run-of-the-mill thing when, in fact, it's not a run-of-the-mill thing. It's either, you know, from—depending on what side you're on—it can have a whole different character to it if people are able to thoughtfully lay out why this case is worth this or not worth this.

[00:08:21] Judge Nancy Allf: One thing I find that in the initial conferences with the parties, there's often emotion involved, whether it's a business transaction or injury. If you listen calmly and carefully so that you can sort out that emotion for that client, in the next round, you find that you can get some positive traction toward resolution. And that's what I try to do.

[00:08:47] Moderator: You know, Kim, you mentioned storytelling. That's an effective tool in the mediation. Are there other kinds of tools or arguments? Or what is most effective, have you found, at moving another side from their original position?

[00:09:03] Kim Keenan: I do think that when people are reasonable and thoughtful and they can say, “I have these experiences at trial. I've, you know, I've tried these kinds of cases before a jury, and this is what they tend to be interested in, and this is the strength of the case.” And that argument works, whether it's defense or whether it's the plaintiffs. This notion of “I have really thought about these facts, and I thought about the value or the damages in this matter, and I'm able to explain to you why you think it's going to come out this way, but I have all this sort of data that tells me that it's going to come another way.” It's really being able to sway people based on us projecting out to what the case will be. And that requires, one, a strategy.

You have to know where you are and know where you want to go. You have to know how far you can go into your pain point, and you have to have your client really well prepared because you don't want them to be surprised, whether it's on the defense side or on the plaintiff side. You don't want them to get there and go, “Well, this isn't what you've been telling me this is.” You want people to be prepared for what they're going to hear on the other side. And I think that sort of, if you will, greases the wheel toward going in the right direction.

[00:10:22] Moderator: Judge Allf, you want to add to that?

[00:10:24] Judge Nancy Allf: You know, Kim summed it up so well. The expectations of the parties have to be managed in a way that is reasonable and rational to them. And listening is always the first—it's the first key to success.

[00:10:39] Moderator: Judge Allf, what are some of the best ways to sequence a negotiation, either from a plaintiff or a defense perspective, in terms of the demands and issues that you want to resolve?

[00:10:53] Judge Nancy Allf: Now, I like to start with just listening to the story. That gauges me with regard to the quality of the testimony, the quality of recollection, and it gives them, of course, a chance to tell their story. And that lets me also manage their demands or their expectations at a later point when I hear the countervailing side.

[00:11:16] Kim Keenan: Judge has this totally, totally, totally correct. I do think that people pooh-pooh this notion of hearing the story. You know, we don't do openings anymore that much, not that much. Some people are shrewd, and they use them when they think they'll be effective. But for the most part, you know, you really do get a private sort of viewing of each person's case.

And it's really important that you're really listening to those details because as the mediator, you're going to need that information at the end. And another thing to think about is, you know, making sure that that you address people's desires and mediation in a manner that follows and tracks how we think things will go. Like, for instance, if I think something's going to be really hard to negotiate, I might leave it to the end, or I might put it in the middle. Sometimes I do the low-hanging fruit first because I find that once people get in the habit of saying yes, they continue to say yes. They may, you know—it may take longer to get the second yes than the third yes, but, you know, that first yes can be key to getting to the other yeses.

[00:12:22] Moderator: Well, I would imagine you have—starting out, lawyers, I assume, are under a lot of pressure from their clients. They want to get the best result, and so they're coming in as, you know, bulldogs. But how important is flexibility in negotiation, and how have you seen smart lawyers remain adaptable during the mediation process? Are there sort of any stories or examples that you both can share?

[00:12:46] Judge Nancy Allf: When—when the process starts to bog down, sometimes, when the parties are making small moves and waiting for the other to make a big move, you can do that, but you can lose traction. And I've found a number of lawyers who start discussing brackets and possible factual scenarios as to what might make a bracket negotiation effective. Key, of course, is never look at the midpoint because that's a false metric. But any good lawyer knows a way that if their client really wants a resolution, that they will find another way to make offers and negotiations in an effective way.

[00:13:29] Kim Keenan: Absolutely. You know—and I use brackets, and you're absolutely right. People don't focus on the midpoint. Some people—again, there are still some people who do that—and they'll go, “Oh, but the middle of it.” But the number is really set by the strategy of the participant. And, you know, human nature always will have you calculate what that middle place is, but that's not necessarily where the whole negotiation will fall out, so it's good if you have other technique. Sometimes I'll have the parties reset when they back themselves into a corner, like, you know, “I'm not going to go any further than this.” And, you know, you kind of have to reset them. Sometimes I'll go, “Well, you know, let's reset. I'll put the reset on me.” I'll reset you so that you can go back to negotiating in a way that people feel like they're on an even keel, as opposed to, you know, one party has sort of negotiated themselves away from that position, and we want to bring them back to the table.

[00:13:29] Judge Nancy Allf: If I could add—as mediators, we are trained listeners. And sometimes there's a wild card fact or a wild card point out there that can make a difference, which might be, you know, something as simple as an apology or a nonmonetary win for one of the parties. And it can come in all—all sorts of forms. And by listening to the lawyers and their clients, sometimes you can use that to move a negotiation forward.

[00:14:50] Kim Keenan: And in a private session, sometimes you can ask aside, you know, what are their—what other things do you have that you could put on the table? And you'd be surprised. I find a lot of times people have negotiating tools that they never really even thought about themselves. I remember settling something once where we gave the person like three months of leave to, you know, just kind of reset themselves so that they can accept the settlement and move on. And it, you know—again, when you—when you're out of money or you can only give so much money—I mean, a lot of entities—it doesn't matter what happened. They only have X amount of dollars, so then it becomes, what else can we get for you or how else can we calculate this outcome so that everybody feels seen, valued and feels like they got the maximum that they could get out of the process, and that these are things that usually both sides don't have any, you know, they don't have any objection to. So, when you can find some of those little goodies, you sprinkle them everywhere you can.

[00:16:09] Moderator: Yeah. And I imagine that's where a mediator really sort of becomes part of the negotiation and really can have an impact on the outcome of a negotiation. What should parties be looking for when they're looking for a mediator? Are there certain characteristics that they should be looking for? Does it matter what type of dispute they're looking to mediate? Kim, any thoughts about that?

[00:16:35] Kim Keenan: Some things are just uniquely technical, and you need someone who, you know, if you're talking about the medicine and, you know, you don't want somebody who has to really learn all those terms full—full stop. But if you have somebody who's has familiarity with it and familiarity with those kinds of cases, then you know that familiarity will make all the difference in the outcome. But if you have a mediator who has extensive experience and they're smart enough, like Judge Allf says, to really, really listen, then, you know, sometimes it won't matter whether they've done that kind of case before. But there are some areas that really require some technical ability. But far and away, I think the greatest mediators are great at doing all kinds of mediation because they have—they recognize that part of the experience is really paying attention to this one situation, listening very carefully and paying attention to the arguments of the parties.

[00:17:34} Judge Nancy Allf: You know what? I always thought as a lawyer that my clients, if they could have resolved the case, they would have, but they pay a lawyer for objectivity, and the objectivity that a mediator can bring to a negotiation is critical because you're not dug in on either side. You realize that some of the facts may be squishy on both sides, but some of their wants and desires for a resolution may also be a little—just a little negotiable. And the best thing you can do is see where they are negotiable, think outside the box, don't bog down in the emotion that they bring to it, make sure that they pivot—that you pivot the conversation—so that they focus on resolution. And I like to start getting them, at least in the second or third round, invested in their own resolution so that they're thinking about that so that they can move the case forward and give me ideas to help them.

[00:18:37] Moderator: So, I want to ask one final question to both of you, you know, in terms of larger trends that you see in mediation over the horizon and—are there any things that lawyers can do to prepare for what you see on the horizon?

[00:18:54] Kim Keenan: I think technology is going to play more and more of a role. I just I did a mediation some months ago where every time an offer would be made, they would, you know, feed it into this computer. It's basically an app, and the app would calculate the difference between the previous offer and this offer, so automatically do the math that we're all sitting there doing, you know, on our little notepads. But it would say, this offer is only point, you know—4% less than the last offer. And they'd say, “Well, we went down, you know—we went up 10%, but they only came up 4%.” And it would calculate them in real time, and it would show them a track record of the percentages.

And I do think you're going to see—particularly as we see younger lawyers come along, they're going to be using a lot more apps—a lot more artificial intelligence. So, AI is going to be present, I think, in mediation too. But I do think that the reason why—Judge Allf said it so awesomely—the reason why you get a third-party neutral is you don't want someone who's filled the algorithm with the points they want it to have. You have someone sitting there who's listening to everybody's points and putting that into the framework of their experience and what it might look like at a trial.

[00:20:14] Judge Nancy Allf: That's a great point. And, given the level now of technology that we're using, make it clear to the mediator from the beginning what your layers of authority are. Who has the different authority? And very often there are layers of coverage as well. So, give the mediator those tools so that that can be used for your benefit.

[00:20:39] Moderator: All right. Well, we'll leave it there. Judge Allf, Kim, thank you so much.

You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been JAMS neutrals Judge Nancy Allf and Kim Keenan. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.