One of the longest recurring features here has been a Q&A with various professionals that add some perspectives on what is going on in a specific area.
Today, I have the fortune of publishing a Q&A with Robert Harris, who serves as Senior Vice President and Deputy General Counsel for Radian Group. I’ve been lucky to know Robert through our collective work with the Connecticut Bar Foundation. I recently caught up with him again and he agreed to answer a few questions about his growing mediation practice.
You’ve mediated cases over a number of years. Are there certain characteristics of a successful mediation that translate to other cases?
Robert: Persistence. The more challenging commercial matters that I am involved with often are not resolved during the scheduled mediation session. Either there are too many issues, or the emotional and non-substantive issues are seemingly monumental, or both. The parties may believe they are at impasse, but I rarely agree with that. They need an opportunity to digest and process. For me, the goodbyes at the end of the day become the starting point for ongoing reach out to the parties and counsel, with the expectation that resolution may take some time to occur.
What mistake or two do parties or their attorneys make in mediation?
Robert: Not having definitive input from the ultimate decisionmaker. I have learned, both in my inhouse legal capacity and as a mediator, that those higher on the organization chart view business disputes without the emotional attachment that the participants who lived through the dispute bring to the mediation.
Having senior executive participation—either at the mediation itself, or at least during mediation prep—can ease the way to a more expeditious and dispassionate discussion of the substantive issues needed to resolve the matter.
How should parties think about picking a mediator?
Robert: I suggest counsel mentally fast forward to the mediation. If they anticipate the mediation will be effectively a negotiation, they will want a mediator with comfortable shoes, who after the introductory pleasantries, will travel from room to room carrying offers and counteroffers and exercising friendly persuasion to move the parties toward a satisfactory midpoint.
In more complex disputes, the parties should anticipate the need for the mediator to engage in substantive discussions with counsel and their clients about the business issues and interests at stake.
A mediator with subject matter experience, or at least someone who is well-versed in the commercial world, will have a better chance of connecting with the clients, and offering settlement concepts that are more nuanced than a single settlement number.