James Keller, chair of The Missouri Bar
Alternative Dispute Resolution Committee
(Herzog Crebs Law Firm in St. Louis)
Question 1 - Most people think of trials going on in a courtroom, but what about mediation? How do you describe mediation to someone who doesn’t know this exists and doesn’t know it can be an option?
Question 2 - Could the dispute resolution range from anything minor and nuisance to something that’s major and life changing?
Question 3 - That’s true, innocently, because mediation is a “people skill” and sometimes when you strip down all the emotions, and you sit across the table from someone, a compromise may reveal itself, right?
Question 4 - You’ve heard the phrase “Let’s agree to disagree”. If someone takes part in a mediation, might there be a situation where there’s no winning-no losing---could that be an outcome of a mediation?
Question 5 - Are there situations where mediation may not be the avenue you need to you down?
Question 6 - By and large, are judges willing to ask for the parties to take part in mediation?
Question 7 - If someone is going into mediation, what type of mindset should they have when they sit down at the mediation table?
Question 8 - With mediation, should someone be surprised if their mediation takes place in an office or even a Law School rather than in a courtroom?
Text Transcript of Audio Interview
Welcome to Law and Your Life, a Missouri Bar Podcast for the public. I’m Shelly Tucker. Our guest is Jim Keller of Herzog, Crebs law firm in St. Louis. Mr. Keller is also the chairman of the Missouri Bar’s Alternative Dispute Resolution Committee. Mr. Keller most people think of trials going on in a courtroom. What about mediation? How do you describe mediation to someone who comes into your office and says I don’t even know that existed?
Jim Keller: Well mediation is an attempt to resolve a dispute typically with a neutral, known as a mediator, who will be mediating the dispute between two or more parties to try to get them to reach some kind of settlement or some kind of compromise short of having the dispute ultimately resolved either in a court of law or arbitration or otherwise. It is a consensual process in the sense that if a matter is mediated and then resolved, that requires the consent of those who participated. Sometimes you are required either by contract or perhaps even by court order to mediate a case, but once you’re required to mediate the case that doesn’t mean you’re necessarily required to reach a resolution. That’s got to be resolved between the parties, and they’ve got to reach an agreement to do that.
Question :And could these dispute resolution issues range from anything minor like a nuisance issue to something that’s major or could be life changing?
Jim Keller: Absolutely. One of the unique things about mediation is you can apply it across the board to virtually any kind of dispute that could exist from something extremely small, extremely minor to obviously something that is very significant -- either legally very significant or monetarily very significant, or otherwise. We all mediate whether we know it every day. Take a typical person at home with her two children and they get into a dispute with each other. She’s going to participate -- often reluctantly -- in trying to resolve the dispute, finding out what happened, trying to make some peace between her two children. That in essence is a form of mediation.
Question: That’s true. It is a people skill to be able to mediate, and sometimes when you strip down all the emotions you might need to sit across the table from someone and have that legal element there and maybe let some elements come through that you weren’t aware of and that you can compromise on, right?
Jim Keller: That’s absolutely correct. We typically think of mediators as being lawyers, and I am a lawyer and a mediator, so I can apply my legal background when I mediate But you don’t have to be a lawyer to mediate. That’s another thing that’s a little bit unusual and sometimes misunderstood. People thing you have to be a lawyer and it has to be in a legal setting. Actually there are very effective mediators who are not lawyers, either not practicing lawyers or perhaps previously in their career they were lawyers but have moved on and no longer are actively practicing law.
Question: Mr. Keller you've heard the phrase “let's agree to disagree.” If someone takes part in mediation, might there be a situation where there's no winning, there's no losing. You just kind of agree to disagree. Could that be an outcome of mediation?
Mr. Keller: Absolutely. I just mediated a case on Monday that we spent all day, the lawyers came in from around the country. Unfortunately the matter did not resolve, but that is only one aspect of what I had hoped to accomplish in the mediation. The other part is to at least crystallize the issues that the parties cannot yet come together on, the issues they can agree to disagree on. But you have to at least understand the parameters of what the dispute is, what the impediments are and what are the barriers are to being able to get through it. Once you get those crystallized, although the parties may not want to resolve the dispute at that point, it at least gives them a skeleton going forward as they go on through discovery and it’s quite likely they are going to come back to some form of settlement in the future.
Question: Are there situations where mediation may not be the avenue you need to go down?
Mr. Keller: I think there are very few cases that aren't subject to mediation. Probably where it's misapplied often is in the timing of the mediation. You’re often forced to mediate a case either because a court or some other reason, such as the contract, requires that it be mediated at a specified point in time. Unfortunately, that may not be the correct time for the parties to get together and mediate. It may be too soon; it may in some instances be too late; too much money has already been spent; the parties are too entrenched and decide that there's too much at stake, so they decide they need to go forward and resolve it through court or otherwise. So I think more of the focus should be on the timing of the mediation than whether a case is truly worthy of mediation. I believe almost all cases are. Now there are some cases that are just not going to settle, and for those cases the courts and arbitration are available. There are a few cases that are going to be based on principles, new legal precedent, things where you're looking to create law, and those may not be appropriate for mediation either because mediation is a confidential process and it's not going to set precedent. So there are instances where I would suggest mediation may not be appropriate -- but those are rare. For most cases -- the lion's share --mediation could be a very effective means of trying to get it resolved short of the ultimate, a trial.
Question: By and large are judges willing to ask for the parties to take part in mediation?
Mr. Keller: I think that really varies and my ADR (Alternative Dispute Resolution) committee has looked into that from time to time. We continue to encourage courts to actively engage in sponsoring ADR, and mediation in particular, as an alternative. But I think that really varies by court and varies by judges. If you're in federal court, certainly in the State of Missouri, almost without question the case is going to be sent to mediation at some point and typically pretty early in the discovery process. The federal court system embraces it. It's actually built in and very few, if any, cases can actually go to trial in the federal court that haven't already gone through a mediation process. By contrast in state court I think it's going to vary. Some judges may emphasize it a little more. They may spot a case that seems appropriate for discussion of settlement and recommend that the parties go to mediation. But you won't find it quite as automatic or quite as frequently used as it is in federal court.
Question: If someone is going to go through a dispute resolution through mediation, what type of mindset should they go into it with -- whether the judge has required you to do this or whether your lawyer has suggested it, or the prosecutor has suggested it. What type of mindset should you go into when you sit down at the mediation table?
Jim Keller: I think you need to keep in mind that there are always two sides to the story, and while people get ready for mediation they tend to become entrenched with their own case and often can't see the other side. So the first thing I would suggest is keep an open mind, listen, understand that there is a differing point of view. Don't look to highlight the differences, look to highlight the common ground. You have to build from somewhere, so if you start with an open mind you can start to see that there may be things that the two sides can agree on. They may have some common ground that they can build upon. That's what I would encourage parties to start to look for, because once you can get that, it gives some basis then to go forward and perhaps ultimately get the matter resolved.
Question: If you're asked to take part in mediation, should you be surprised if it takes place in someone's office or in a law school rather than in a courtroom?
Jim Keller: A mediation almost never, in my opinion, takes place in a courtroom. It could, but mediations much more typically take place at the mediator's office or at some other place. They can be at the office of one of the parties involved; they can take place in a home. There really is no parameter for where mediation will take place. But I think most people prefer that a mediation take place at what they call "a neutral venue" which often is the mediator's office or some place other than where the parties live or where the parties work. This way you can kind of create a neutral ground, and neither party feels that they're disadvantaged by the setting.
Ending statement: Our guest has been Jim Keller with Herzog Crebs Law Firm in St. Louis. The Law in Your Life provides general information about the law for the public for your specific legal needs. Remember, you can only get legal advice from your attorney. We hope you've enjoyed this segment. If you have any suggestions for future podcast topics, let us know here at Mobar.org. I'm Shelly Tucker for the Missouri Bar and Law in Your Life.
You' re not supposed to use mediation in metrolink train accident case.
Posted by: metrolink train accident | 02/18/2011 at 01:17 AM
mediation services has been invaluable in helping us through a particularly difficult employee issue.
Posted by: mediation services | 03/09/2011 at 07:13 PM