DICTA May 2022

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M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

CALLING ALL MEDIATORS Our bar is fortunate to have a core group of quality civil mediators— lawyers with significant experience, proven records, and more war stories than any of us could stomach. It’s no secret, however, that many of them are approaching retirement, and a clear changing of the guard is on the horizon. To that point, opportunities abound for developing a successful mediation practice in the next five years, and any lawyer with gray hair and a modicum of trial experience should jump on this train now by getting their Rule 31 certification. I’ve never served as a mediator, but having participated in a number of mediations, I can certainly see the appeal. You control your schedule. You bill at higher rates. Although you hope each case settles, if it doesn’t at the end of the day, it’s not your fault, and best of all, you don’t have to put up with the clients or their attorneys who are likely more scorned now than when they began. Not everyone is suited for the role, which begs the question: “What makes a good mediator?” Obviously, “good” is subjective, and if we polled KBA membership, we would have competing answers. The American Arbitration Association’s Model Standards of Conduct for Mediators suggest that first and foremost, a good mediator is impartial, meaning “free[] from favoritism, bias[,] or prejudice.”1 Beyond impartiality, there are some other, obvious and uncontroversial traits, including (among others) competence, patience, and relatability. While all of those are great qualities and each surely shares a positive correlation with a mediator’s success rate, I come before you now to say that there are really just two measures of your worth as a mediator: (1) lunch; and (2) snacks. I’ll take each in turn. Lunch Like old-timey gospel meetings and community homecomings, mediations are—in most cases—an “all day to-do with dinner on the grounds,” which is precisely why I hulk out when a mediator has us “break for lunch.” Listen dude, we’re paying you more than our own hourly rate. The least you can do is feed us, and don’t be too cheap. No one could reasonably expect a steak dinner, but a cold cut with chips and no cookie won’t cut it either. My favorite mediators usually spring for restaurants in the pricepoint akin to mid-major basketball. You know, somewhere with endless breadsticks or a chicken tender and rib platter. You might not celebrate your anniversary at whatever restaurant your mediator offers, but you wouldn’t be totally ashamed to turn in the receipt to your accounting department, either. (As an aside, I shudder when I hand off my Taco Bell receipt to accounts payable: “How many people were at this meeting?” or “Should I put part of this as marketing?”) Beyond the quality of the restaurant, it’s also important that the mediator gives you a menu and allows you to choose whatever slop you think will best keep your anxiety at bay. (Most of my mediations involve clients who participate by phone or Zoom, which allows me to maximize May 2022

on lunch. I’m not suggesting that you be uncivilized and house a plate of chili cheese fries, but it’s a lot easier to eat a chicken tender when your client isn’t watching.) Giving a menu is an absolute no-brainer. It ensures everyone gets what they want to eat (within reason). No one is hangry, and everyone gets a brief but well-needed break from negotiations. Plus, there’s essentially no risk to the mediator. How badly can we hurt your bottom line if the most expensive item on the menu (usually the chicken tender/ rib combo) costs $16.00? It’s like getting a complimentary bottle of André at a Motel 6. There’s nothing particularly impressive about the “champagne” or the room, but it’s still nice to feel appreciated. Snacks For many of the same reasons, quality mediation requires quality snacks. I use the word “quality” in the snack-sense as a synonym for enjoyable, not healthy. Aside from taking a “lunch break,” there’s nothing worse than a snackless mediation, which includes being provided a bowl of mints. Mints provide no sustenance. They conceal bad breath typically caused by excessive consumption of real snacks, coffee, or both. My favorite mediator—who for fairness will be referred to as the “Snack Man”—has a cornucopia of snacks available at all times and in every conference room. Among Snack Man’s many offerings are a few of my personal favorites: Welch’s Fruit Snacks®, various name brand potato chips, Fudge Stripes®, Cheez-Its®, mixed nuts, Milano® cookies, and Nekot® Sandwich Cookies, to name a few. Not only is the list itself impressive, so too is its presentation. Each of these snacks are neatly organized in a tastefully appointed box, which sits on the counter near a coffee maker and a refrigerator filled with all major varieties of soft drinks and bottled water. The whole thing screams luxury (at least by my standards). As with lunch, providing these snacks requires a small financial investment, but it pays substantial dividends. Everyone participating in the mediation immediately knows two things when they see these snacks: (1) this mediator means business; and (2) even if this lasts all day, I’ve got plenty of fruit snacks. Snacks alone are responsible for at least 60% of all successful mediations. So, in conclusion, I welcome all of you to consider joining the ranks of our esteemed mediators, but only if you supply adequate provisions.

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DICTA

Model Standards of Conduct for Mediators (Sept. 2005).

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