Author name: Patrick C. Coughlan

As one prepares for mediation, it is too easy to focus on the procedural aspects (briefs, arguments, expert reports, exhibits) of the process and NOT enough time on mental preparation. To succeed at mediation, the lawyer must be mentally prepared to effectively “sell” her/his point of view. That means coming into the process with an open mind and accepting that one might learn something or even be mistaken about a fact or law. It means working to develop trust with the opposing lawyer and client. Trying to be the toughest or most argumentative person in the room NEVER leads to settlement. Civility and thoughtfulness, along with an open mind, definitely increases the chance of resolving a dispute. As strange as it sounds, civility requires practice. Our political and social climate have done nothing to encourage us to get along. Discourse must be respectful which involves open-mindedness, intellectual charity, and humility (not necessarily strong attributes of attorneys.) During litigation, work to get to know opposing counsel and clients. In the “good old days,” lawyers and judges rode circuit together, and no matter how much they disagreed in court, they developed and maintained respect (and often friendship) for each other in their travels. It takes time to get to know other people, to learn about their background, families, and interests outside of the law. I guarantee that the effort is worth it, and it will make you ENJOY the legal profession more!!

How to Begin a Difficult Conversation by:  Patrick C. Coughlan, Esq. Many attorneys and their clients put off the start of a challenging conversation with opposing lawyers and clients for two reasons: 1) They are not sure how to approach the other side to begin the discussion (perhaps fear of looking weak.) 2) They are concerned that they could make matters worse. Never lose sight of the fact that without a dialogue NO progress toward resolution can occur. What often alienates the other side is moving forward with discovery without ever having discussed why the information is needed, and lacking clarity about the goal one is seeking to achieve. Information can often be obtained more easily and much less expensively without formal discovery simply by explaining the “what and why.” It is always in the clients’ best interest that they understand the risks, inefficiency, and expense of litigation and that litigation should always be considered as a last resort to solving a dispute. Although all “important” information may not be known at the time, early mediation often clarifies the issues, identifies essential missing information, and promotes civility between the parties. The mediators’ help in facilitating the exchange of information usually results in quicker settlements! Pat and Devon Coughlan are highly experienced in assisting parties in the identification and exchange of “essential information.” Document and information exchange that occurs as part of the mediation process can often be kept confidential, thereby encouraging the parties to be more forthcoming with information. Call us if you want to take advantage of the opportunity of settling a matter early.

By: Patrick C. Coughlan, Esq. By now most lawyers have participated in an electronic mediation where participants are visible to each other. Most participants to a Zoom type mediation have been pleasantly surprised by the ease of the process, and the positive results achieved. The lawyers who have been displeased with the use of Zoom generally participated in a process that was poorly organized and planned. Zoom type meetings take MORE pre-planning than an in person session. It really helps to give participants the opportunity PRIOR to a mediation session to become familiar with how the mediation process will work, meet and talk to the mediator, and understand some of the challenges that might occur during a session. Expectations must be managed in advance. Not only must the mediator do more advance planning, but the lawyers should as well! Clients probably will not be in the same physical room as their lawyers. How do lawyers plan to communicate privately with their clients and among each other? Is every one familiar with break out rooms? How they work, level of privacy? Ease of use? What to do if someone is unexpectedly kicked out of the meeting? Whenever one is using a computer, the unexpected can happen. Have contingencies been planned into the process? We take the time to have these important discussions with the attorneys and their clientsPRIOR to the mediation session. Our goal is twofold: 1) To gain and understanding of the case and the parties positions; and 2) To explain how we conduct Zoom sessions, what are our expectations, and to help prepare participants for the mediation. Pat actually had a mediation that was recently disrupted by a public city wide demonstration near his location, but was able to continue the mediation after he changed location, because we had a alternate plan in place! We tailor our Zoom sessions to meet our clients’ needs. Please contact us to learn how we can improve the success of your mediation sessions.

The Problem Litigated construction disputes often involve numerous parties, such as developers, general contractors and various sub-contractors, architects, engineers, and perhaps financial institutions and public entities. Numerous claims, cross- and counter-claims are asserted, often arising under the contract and/or professional negligence theories. This makes for a dense maze of claims and defenses. To be successful in resolving these kinds of cases, mediators need a different sort of strategy to manage the complexities that are not as prevalent in smaller, more compact disputes. The Approach: Co-MediationIn cases involving more than four parties, two mediators may be needed to make the process more efficient. Two mediators can gather information among a group of similarly situated parties more quickly than one. This results in a quicker exchange of information between parties. It also brings twice the problem-solving expertise to bear on finding a viable resolution. The additional fees incurred by a second mediator are nominal compared to the time saved with one mediator who faces the challenge of interacting with the entire roster of parties and their representatives. Mediating Online The authors have experience resolving construction disputes online with video conferencing platforms such as Zoom – even with as many as thirty parties. Critical to the process are pre-mediation conferences that familiarize participants with the platform without the pressure of performing in an actual mediation. Early conversations about protocols concerning information security and confidentiality, as well as the details of the case, set the stage for a meaningful mediation that increases the chances of resolving the dispute. These conversations may also reduce or eliminate the need for opening statements. A number of important ethical concerns are raised when parties mediate disputes online with Zoom or any other video conferencing platform. Confidentiality and mediator neutrality, for instance, are bedrock principles in mediation. Video conferencing platforms have numerous settings that must be programmed to protect information from unwarranted disclosure. The platform must also be carefully managed during the mediation for the same reason (to avoid disclosing information intended to be kept confidential). Mediators also have an ethical obligation to competently operate all technologies that facilitate settlement discussions. Furthermore, mediation is intended to serve the interests of the parties, and toward that end, the mediator is responsible for helping the parties make informed choices about which technologies to use. Competency in managing the technology is even more important in large-scale cases where the co-mediators may need to use two different Zoom accounts in order to flexibly move in and out of breakout rooms (the authors have asked for technical guidance on this issue from Zoom but have not received a response). For these reasons, in our opinion, you should be wary of mediators who do not understand or will not manage these technologies. Roadmap to Resolution Most mediators have a rough plan of how the mediation will likely come together (or at least they should) after reviewing mediation statements and notes from private conversations with counsel before the mediation. In construction cases, the main question for resolution is, “How will the money flow?” From what source (or sources) to whom? Mediators may surmise how much moving parties will accept and how much can be raised from defending parties, but none of that matters until parties and counsel confirm what they will offer or accept. In general, mediators are always looking for a workable solution based on conversations (sometimes heated) that readjust the expectations that counsel and parties have for the litigation. Flexibility is key; the roadmap can and will change as the process unfolds. Like most civil mediations, the process takes time to move from what parties want to what they will accept. Construction mediators cannot be afraid of sharing their opinions about the merits of claims and defenses. They are under time pressures to keep the process moving along – which is why co-mediation can be so helpful when difficult discussions need to occur. Organization Mediators of large-scale construction disputes must be highly organized. A summary of the competing claims and defenses is an indispensable tool for organizing the points of disagreement and where potential areas of compromise might be found. It should cross-reference responses from each party so that caucus conversations can progress and build on information gathered along the way. Also, mediators need to create and maintain a contact sheet of all participants, including their cell phone numbers, e-mail addresses, and when they will participate. Term SheetAlthough mediation participants may not be in the mood for it after extended settlement talks, the mediator must assist the parties and counsel in preparing a term sheet before ending the mediation. Although detailed settlement documents will be executed at a later time, the term sheet must list the material terms of the settlement accurately, including a provision that nothing else is required to fully and finally resolve the litigation. It should also state that any party can enforce the term sheet in the event they cannot agree on the final terms as stated in a more fully-documented settlement agreement or release.

…  Zoom Mediations that is! We have conducted over 40 mediations by Zoom since Mid-March, many involving over 20 participants. Although managing large groups is challenging, we are successfully settling both large and small cases. Lawyers are gaining experience in electronic mediations and using them to mediate a growing number of cases. The good news is that all participants to Zoom type mediations seem more cooperative and are working harder to resolve differences. Another thing that has pleasantly surprised us (the mediators) is our ability to “read” body language as well as we were able to when meeting face to face. I believe that this is true of the participants as well. The key to a successful meeting is to make sure all participants are on “video” and not connected by phone! In addition, the position of the participant is important–not too close to their screen and not too far away–but just right! Lighting is also critical. Too often participants have a window behind them and their facial features are not visible. Do not hesitate to ask parties to readjust their position and lighting. Furthermore, the ability to hear people not wearing a mike, is directly impacted by their distance from their screen! There is a growing tendency as we open up the ability for people to gather for some of the participants to meet in their attorney’s office. This poses two challenges: 1) If they are wearing masks it is nearly impossible to see non verbal responses; and 2) With people social distancing, it is difficult or impossible to see everyone. We suggest that each participant in a lawyer’s office be on their own screen with sound muted until they speak. Doing so avoids electronic feedback and creates social distance so that a mask is not necessary. If you have particular questions about using Zoom or Teams, please contact us. Be safe, Be wise, Be Kind! Pat and Devon

They are home working hard to provide their clients with the same quality of service as they did when they were at the office. Clients still need to move forward with their lives and businesses, and they cannot afford to put off resolving disputes and conflicts. In these challenging times, mediation has dramatically expanded its reach. At Conflict Solutions, we are finding that attorneys are reaching out to us much earlier in order to provide resolutions for their clients’ disputes while the matter is at the forefront of their clients’ focus. The best lawyers have always focused on their clients’ needs and desires, and provided prompt and efficient services. Conflict Solutions is proud to provide dispute resolution services that help meet these goals. Scheduling preliminary sessions and actual mediations is easy and effective. We use ZOOM conferencing to help personalize the experience. It is unlikely that face to face meetings will happen soon. Even if that were possible, think about being in a small, medium, or large conference room with a group of people who may not have been social distancing during the past week. Think about the HVAC system and whether it is spreading germs. Ask yourself how effective it is to negotiate with people who are wearing masks. Electronic conferencing enables participants to see and hear each other, to observe facial expressions, and most important to feel safe! Let us work with you to provide your clients the service they deserve.

  How it is the SAME: The process is every bit as effective, we are settling cases, and attorneys and their clients are busy working and moving their caseloads ahead. (In the last week alone, Pat Coughlan completed a successsful 11-hour mediation. Each of the participants was engaged and fully participated in the entire process. Devon has also had a busy month of April with a number of successful multi-party remote mediations.) How it is DIFFERENT: One must devote a little more time to the process. Commencing a mediation takes more planning, better initial communications, and more honest communications between the parties and the mediator about “impediments” to settlement. How it WORKS: We use pre-mediation Zoom or Microsoft Team sessions to introduce ourselves, get to know the participants, and to learn about the case from each party’s perspective. These electronic meetings also give participants the opportunity to familiarize themselves with the ins and outs of Zoom and Team and to become fully comfortable with the process. WHY You will Appreciate the Process: A skillful mediator will keep everyone involved, fully engaged, and fully participating during the electronic process. From this mediator’s experience, the parties are focused on the settlement goal and work harder to resolve their differences and keep a better perspective. Call us! If you, or anyone in your office would like to talk to us about how to make electronic mediations successful, please call us. We are enthusiastic about the process and outcomes and you will be, too! Pat Coughlan:               239-272-0134 Devon Coughlan:          561-308-9494 Administrative Offices:  207-655-6677  

The International Mediation Institute, of which Pat Coughlan has been a member for many years, collects feedback from clients concerning their individual mediation experience with members of the Institute, and the feedback is then compressed into a digest. The most recent digest for Pat Coughlan is dated June 23, 2018 and is labeled with five stars. Feedback content follows: This Feedback Digest is based upon 6 feedbacks submitted. Patrick Coughlan works regularly in complex, multi-party insurance, securities and construction disputes, including professional liability in the construction arena. The claims in these cases are in the many millions, sometimes billions and often involve underlying litigation in numerous forums that cross national borders. He is typically and frequently hired by senior partners in large global law firms, who hire him to work on their “more serious cases.” He is the “go to” large case mediator in some states. One firm has mediated over fifty cases with Mr. Coughlan. Mr. Coughlan ranges from insurance coverage, securities and construction to personal injury, wrongful death, medical malpractice, and toxic exposure. Mr. Coughlan is described as “top-notch,” and one senior partner at a global firm who has mediated hundreds of cases judges Mr. Coughlan as “one of the very best mediators” with whom he has worked. He bridges personality differences, has an intuitive sense of people, brings enthusiasm to the work-at-hand, and is able to earn the trust of competing lawyers and their clients. He has a tactical, strategic mind that makes him highly effective. He is persistent and thoroughly conversant with the details of the cases he mediates. Mr. Coughlan demonstrates even handedness, grasps the nuances of esoteric insurance coverage issues, can be tough when needed and shows good grace and humor when required. He is able to astutely evaluate a case and perseveres to get all sides to ultimately agree to a resolution, however long that may take. He exhibits patience, zeal, intellect, a reserved sense of humor, intelligence and the ability to keep antagonistic parties engaged. He deals well with, and motivates, a wide range of individuals and egos, which his users find essential to bring matters to resolution. Clients respect him and he respects clients, which one lawyer who gave feedback on Mr. Coughlan declared necessary to a successful mediation process.

“The real art of conversation is not only to say the right thing in the right place, but to leave unsaid the wrong thing at a tempting moment.” Benjamin Franklin An awful lot has been said and written over the years about opening statements in mediation. Concern over the abuse and potential inefficiencies of opening statements has led us to where opening statements and joint meetings of the parties are almost never held in certain jurisdictions.   Not having a joint caucus to begin a mediation is a lost opportunity to make your case directly to the other side. Having a successful joint caucus does, however, require that both parties and counsel have enough discipline to not say what they may really want to say. I have seen any number of mediations take a wrong turn out of the gate when counsel for one party gives their “trial opening” or insists on vilifying the other side to their face. When it comes to opening statements and joint caucuses, nice guys and girls finish first, as reflected in the ultimate mediation results. Speak directly to the opposing party or at a minimum to the mediator prior to the session to confirm everyone is on board with giving “productive” opening statements. If you insist on going all scorched earth in your opening, at least give the mediator a head’s-up, so he can get everyone else, including your client, out of the room first. “They are not here in good faith.” (said by most attorneys at some point during a mediation). Can we just stop? Please? I am convinced that the definition of “bad faith” in mediation is defined as any statement or action by one party or their counsel that is not what the other party wants to hear or see. The first demand and offer are almost always disappointing. Posturing for the client is expected, to a point. Beyond that it becomes counterproductive.   Maybe wink at the mediator before going on a tirade about how unreasonable the other side is and how they are clearly not here in good faith! Which leads us to….. “It doesn’t matter where they start. All that matters is where they finish.” Devon Coughlan (and most other mediators I suspect) Every mediator preaches patience. Clients need to vent. Mediation is supposed to be cathartic. This is all an expected part of the process. Taking an hour to make an initial move in response to a demand received prior to mediation, because your client is so upset with where the other side started, is not hugely productive. The first moves in a mediation are almost always less than baby steps. They are largely meaningless. They do not set benchmarks, establish brackets, suggest midpoints, or accomplish much other than marking the initial stages of a negotiation. Let’s not get too bogged down before we have even really started. Taking time to carefully consider a move when it counts makes sense. Taking until lunch to decide if you want to offer $5,000 or $10,000 in response to a five million demand, not so much. “If all you have in your toolbox is a hammer, you will see everything as a nail.” Mark Twain. Mediation, at its heart, remains a people process. It is to a large degree personality driven. Some parties and their counsel come to mediation with a world-view, or agenda, that is inflexible. Those who are not able to recognize who they are negotiating with, on a personal level, and adjust their delivery and strategy accordingly, have a reduced chance of reaching a favorable outcome. Few people are really good at putting themselves in the other side’s shoes. Parties are often too focused on winning, not on where the other party’s head is, and where the real settlement opportunities may lie. Spending more time listening and observing will pay dividends. “They need to understand…” or “You need to make them understand…”(at least one attorney at every mediation) Let’s just walk that back for a minute, shall we? I do appreciate that parties have enough confidence in my ability to hire me as their mediator. I certainly do my utmost to “work my magic” at the end of the day in order to get a deal done. Unfortunately, my telekinetic and persuasive powers have not yet reached the point where I can make anyone understand something, particularly when they very strongly disagree, on a fundamental level, with the idea to be understood. Going forward, can we just roll with “I wish they would appreciate” or even “they should understand”? Take heart, we will most likely reach a settlement even if the other side’s understanding remains deficient to the end. “I skate to where the puck is going to be, not to where it has been.” Wayne Gretsky Creativity and strategy in mediation can be hard to come by. Mediation often devolves into a reactionary process, where each party bases its next move solely on what the other side just did. Everyone is skating based on where the puck has been. Party’s that have the most success at mediation are those that come in with a coherent strategy, which is far more nuanced than simply knowing what their settlement range is. Coming in with a plan allows a party to have more control over the negotiation and the process, and prevents “false impasses” caused by a temporary inability to bridge a gap created by reactionary negotiation tactics. Just remember, “Fortune favors the prepared mind.” Louis Pasteur  

Conflict Solutions Intern, Jeffrey A. Trueman, Esq. is an LL.M Candidate at the Straus Institute for Dispute Resolution, Pepperdine School of Law. (To review Jeff’s bio, please consult our website’s home page, under the dropdown menu labeled “Our Mediators.”) The following series of three articles authored by Jeff Trueman are taken from the 2018 Maryland Daily Record and are reprinted below with the author’s permission. Published February 7, 2018 When Searchig for a Mediator, Look by Listening The private mediation market is flooded with people looking to break into the field. When law students ask me whether they can make a career in mediation, I tell them to become a well-respected judge for about a decade, retire, and then business will be much easier to generate without the need for advanced ADR training (the basic course is essential). Of course, that is not completely true: many senior lawyers are supplementing their practice or retirement plans with commercial mediation after decades of litigation advocacy. Still, retired judges are often called to mediate many non-domestic litigated disputes. The rationale is usually based on the belief that a retired judge carries enough clout to  “readjust” expectations on one side or another. This often entails “banging heads” until the parties agree to a compromise deal. Many lawyers justify this one-dimensional strategy to clients and insurance companies because, if and when a dispute does not settle, they can claim to have hired “the best” or most knowledgeable legal subject matter expert. Who better to break the impasse in a litigated dispute than an expert in litigation? The answer may depend on whether the lawyers can see beyond the legal positions and discern the drivers of behavior such as grief, disrespect, a loss of opportunity, or a clash of personalities. But before discussing the skills possessed by “gem” mediators -those who have fashioned pearls of wisdom through the grit of experience -consider the manner in which the mediator interacts with people. How well does the mediator listen? Listening, not talking Mediators who listen more than talk have a better grasp of the real issues at stake between the parties. Great listeners are great observers. They take in not only what people say, but how they express themselves through body language and action. By taking the time to gather information, great mediators create bargaining currency in the form of a rapport-building trust “account” with participants. Withdrawals from that account will be necessary later when concessions are needed. A mediator may rightly have a superb reputation before coming to the table, but the parties in a particular case may not trust the mediator if he or she fails to garner that trust and develop a rapport with the participants. In other words, trust is earned through each personal interaction. It is not bestowed by way of title or status. Generating movement In an effort to persuade parties and counsel, retired judges often soft-pedal their experience as deciders of other people’s disputes. And many lawyers want retired judges to do just that–be the authority figure who can predict the outcome at trial so that the right participants are persuaded to compromise. Fortunately or unfortunately, parties in mediation are free to reject recommendations, no matter who offers them. Insurance adjusters, for example, often live and work in other jurisdictions and therefore have no relationship with or knowledge about the retired judge or senior lawyer. They have their own authority figures at the corporate office miles away. Furthermore, the mediator’s qualifications will matter less to good negotiators who develop bargaining strategies in advance because their concessions hinge less on mediator status and more on whether the other side sends the right motivational signals. Movement occurs for a variety of reasons. Some parties are frightened of and exhausted by extended and contentious litigation. At some point they realize they have no control over the outcome. Some lawyers generate movement by adopting a problem-solving approach to impasse and getting the most from the mediator. Great mediators generate movement by assessing the underlying reasons for the impasse, evaluating–if they evaluate at all–very carefully, solving problems creatively, managing difficult conversations, and tailoring the process to fit the conflict. These skills have nothing to do with status or the law. The sort of experience that makes a good jurist or strong advocate does not necessarily make a good facilitator of negotiation. The law is a narrow expression of what the parties really want: just compensation, accountability, recognition, security, protection of investments, access to loved ones, etc. By working with a mediator who goes beyond predicting legal outcomes, attorneys permit their clients to access the deeper, more significant opportunities afforded by mediation. Published February 27, 2018 Predictions in mediation can break -or build –impasse In most compromise mediations, the main tactic employed by many retired judge and senior lawyer mediators is case evaluation: a forecast, or an educated guess, of the litigated outcome. Granted, litigation professionals do this all the time. Based on past experience, and perhaps with few facts, lawyers decide whether to take new cases and companies decide how to manage litigation. Some predictions are fairly straightforward and will come true more often than not. Great mediators keep their calculators readily available because most parties want to know the bottom-line number if they settle. Great mediators also prompt counsel to factor in the risks as well. Is the claim really worth policy limits when liability is contested? The inevitable last gap in the negotiations is always hotly contested and it’s usually smaller than the projected costs. This is a critical time for the mediator to run the numbers so that counsel and the parties think about whether “the juice is worth the squeeze.” It’s also a critical time for the mediator to consider using closing techniques that may save the attorneys from themselves. Predicting other types of litigated outcomes is specious. As the stakes increase and complications mount, the number of possible outcomes explodes. In my experience, few lawyers consider possibilities such as sub curia