Episode #15 – Mediations

This video episode of The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI), features Florida-based mediation services provider Benjamin Newman. Ben discusses how the pandemic has impacted mediations and the do’s and dont’s of conducting mediations virtually. Ben also talks about the presence of reptile attacks in the mediation process and how healthcare providers and other front-line are being perceived in the light of their efforts during the COVID-19 pandemic.

Full Episode Transcript

[0:05] Bill:
Litigation Psychology Podcast brought to you by Courtroom Sciences, beautiful Friday morning here in Orlando, Florida. We have Ben Newman. Ben, you’re in Orlando too correct?

[0:15] Benjamin:
I am yeah, yeah

[0:20] Bill:
it’s a shame that we probably live about eight miles away from each other, we have to do this Zoom, right? Yeah crazy stuff, but I got the Florida background for you, you got the more official background. Ben, you and I have worked together for a number of years and you just made the interesting transition from what, 30-year defense insurance defense trial attorney to the mediation services. How has that transition been for you?

[0:45] Benjamin:
It’s going well yeah, about perhaps about 25 years, I’ve yeah and I yeah I really enjoy being a trial lawyer, I like trying cases, and I’ve tried lawsuits all over Florida. There’s a lot of the other day-to-day stuff that just started to really wear on me and I just stopped enjoying a lot of the practice of law. But I actually got certified as a mediator about 16 years ago, and so mediation and arbitration has been a small part of my practice but I always really enjoyed it. So I made the decision probably mid-year last year that I wanted to transition to do this full-time and it’s going well so far because I’m able to bring a lot of the courtroom experiences that I’ve had into the mediation process and really kind of share with people what I perceive to be the real risks and dangers and uncertainties that come with trying cases, which mediation hopefully helps you avoid by getting cases settled.

[1:46] Bill:
Yeah totally. how has COVID-19 impacted mediation and are you doing these mostly, I imagine you’re doing them like via Zoom or WebEx? How has a little pandemic influenced I guess client attitudes or just the whole mediation process?

[2:05] Benjamin:
Yeah I’ve been doing since mid-March, I’ve been doing exclusively Zoom mediation, so I’ve done probably 20–25 mediations since then until now and I have mediation scheduled of course into May and June. And most of them, the people are still scheduling them on Zoom. there’s a couple here and there that are now wanting to have them in person, it’s going well so far. I think it is the next best alternative to doing it in person. You do miss certain nuances about being in person with people, certainly you can see facial expressions but there’s something to be said about body language that you get from the participants, the attorneys or the other parties that you can kind of play off of. Also the physicality as a mediator, you want people to be comfortable and it’s more of an informal process than being in a trial. So if I’m in a conference room I can move around and sit next to a person who may have lost a loved one or maybe a defendant who feels like they’re being wrongly sued and just develop more of a personal rapport with them. It’s a little more difficult for Zoom, but I tell people it’s probably about 70 percent as good as being in person. It’s certainly better than being in a telephone conference setting because you do get to make eye contact with people and you do get to develop some rapport with them. It’s just there’s no substitute for being in person, just like there wouldn’t be in trial and trial you want to be I think about it as a trial lawyer I want to be there to feed off of what the what the jurors are their expressions and their faces or if I’m if I get a sense of connecting with them or not and same thing with witnesses on the stand certainly I guess you could do those things via video conference but it’s there’s again it just isn’t as good as being in person but I’d say under the circumstances it came very well

[4:03] Bill:
Yeah we’ve been doing a lot of virtual witness preps with witnesses and trial attorneys all over the country a couple tech glitches here and there the video and audio is never perfect so based on your experiences with doing the mediations in this kind of remote setting do you have kind of a list of maybe advice for attorneys like maybe some do’s and don’ts when it comes to virtual mediations

[4:34] Benjamin:
Sure I would say one challenge is that attorneys are not usually physically present with the clients during Zoom mediation so usually you know in an in-person mediation the attorney’s there their client is there they have a conference room that they’re together in Zoom we have virtual breakout rooms so they can meet together in Zoom but they’re not physically together so there is something lost I believe in that relationship so my recommendation would be that the attorneys spend a considerable amount of time before the mediation talking with their client about the mediation process and to really find out what their goals are for the case is it one they really do want to get settled is it one that they want to try to fight in court what are they really get through their expectations but have that conversation in extensive conversation when before the mediation actually starts because again they’re not going to have the opportunity to be physically present in a room with their client during the mediation process and as I said I think some of the some of the effectiveness of that is lost if you’re not in person so that would be my biggest recommendation

And the other one is I think be patient I think when you’re when you have to get in your car and go to a conference facility or a lawyer’s office for mediation you’re expecting to be there for several hours or maybe even all day in a Zoom conference for whatever reason sometimes people think that it’s going to be much more quick that the process will be more streamlined just people will get to the nuts and bolts of the negotiations and mediations can be over with and that’s not the case Zoom mediations last as long as in person ones do I mean two hours four hours you know all day ones are seven and a half eight hours and so I I’ve sensed that people get a little impatient like why is this taking so long because they’re thinking that they can get in and out it’s not like going through a drive-through at McDonald’s just because you are doing it by Zoom you have to you have to be invested for the day just like if you were in person

[6:50] Bill:
Well maybe you just came up with something the drive-through mediation you could market that trademark it

[6:55] Benjamin:
Yeah I wouldn’t be the first one to test that but it’s yeah I’d love to see that happen

[7:02] Bill:
Now when you were practicing law as a trial attorney I know you and I dealt with this several times reptile theory even as a mediator do you still see that because I haven’t seen any real slowdown in reptile theory and does that actually work its way into the mediation process with essentially the plaintiff’s bar the plaintiff side arguing that hey you know safety was the top priority and the defense blew it when it comes to safety are you still seeing those themes play out

[7:36] Benjamin:
I am I’ve done a few medical malpractice mediations lately where that was an issue there was a case I recall that involved a bariatric surgery case where unfortunately the patient had passed away and that was a theme of claims counsel is that there are that not only is the doctor responsible for the health and the and the outcome but also that there is a patient safety issue so it’s definitely finding its way into the mediation process the good thing about mediation is as a mediator I’m not a judge so I don’t make any decisions about what is or what is not usable in a trial so if defense attorneys will say well that’s a reptile theory concept and we’ll try to keep that out I mean I tell them look I as a mediator I can’t say what’s right or wrong all I can tell you is I know plaintiffs council is going to push hard to get the judge to agree that they can make that argument in front of a jury so it’s a risk for you as a defense and I try to remind them of that there’s no guarantee because the defense attorney all they want to do and what I want to do as a defense attorney is try to keep that out but you have judges that allow some form of it to come in at trial and evidence and so it can be a feature of mediation because I tell them look it’s a risk for you if we don’t sell the case they may very well be able to argue that concept to a jury

[9:05] Bill:
Excellent stuff Ben final question how do you see and I’ve been asking all of my guests this and no one really knows but I’d love your thoughts on it because of COVID-19 you’ve seen a lot of very positive PR particularly towards the trucking industry and the healthcare industry do you think that translates over to jury decision making or do you think that may just be something short term because I think obviously those two industries want to take advantage of the positive messaging that’s been out there. Do you see that impacting jury decision-making at all going forward?

[9:42] Benjamin:
That’s a really great question and of course it’s too early to tell because we’re not having jury trials but I think the answer is probably yeah how long will those good feelings last hard to say but I think you’re right there’s almost going to be a presumption of non-negligence or presumption that the healthcare provider or a truck driver for example is not negligent or shouldn’t be found liable so I think from the plaintiff’s bar perspective that is probably going to be a concern and probably something that I would imagine you’re going to see more questions about during jury selection especially in cases where you know obviously you’re dealing with a health care person in a malpractice case or might be an accident in a trucking accident case I can foresee plaintiff’s attorneys spending considerable amount of time asking questions of potential jurors about whether their feelings during the whole coronavirus situation may impact because they sort of put this industry or these folks on a pedestal and would have a hard time being impartial in rendering a verdict when they may be a defendant so I think it’s definitely subject matter for jury selection going forward. How long will that be? Good question. Six months, a year, beyond that you know I don’t know I mean after the whole September 11^th scenario you know we put the miliary on a pedestal and where they should but I think that’s continued even almost 20 years later so who knows it may be a long term prospect.

[11:22] Bill:
Finally on a related note and I’m sure that you’ve seen this so I mean companies corporate America particularly are flooding our email boxes and tv sets with their safety and health is our top priority here at you know blank company I know that you’ve seen these messages which I cringe as a trial consultant when I hear some of these things because I hear a lot of extreme messaging when it comes to safety and health almost to the point where they’re ensuring it and I don’t think that the PR department’s necessarily talking to the legal department do you see some legal pitfalls maybe going forward in litigation where a lot of these companies have essentially said hey we’re putting your safety your health as our top priority that can come back to haunt them in litigation correct

[12:13] Benjamin:
I agree with you in fact that’s actually crossed my mind about that because you’re right they’re basically setting a higher standard for themselves rather than just you know the usual if you will business as usual they’re basically saying we’re going above and beyond to ensure your safety and the truth is that nobody can ensure anybody’s safety 100 percent so for example if there’s a large restaurant chain that’s running commercials like that and somebody unfortunately contracts coronavirus a customer they’re going to wonder did it happen from being in an Olive Garden or you know being in a restaurant where they’ve gone on tv and talked about how they clean and sanitize aggressively and how their number one priority is the safety and health of their folks I think you’re right it does potentially create some a new level of legal exposure because inevitably there are going to be people who are you know customers or clients of those businesses and they’re gonna get coronavirus and it may have nothing to do with that store that restaurant that place of business but it could easily it could create a question and could potentially link them to which would create some type of legal exposure so yeah I do think especially in places where there’s a large amount of clientele like the theme parks for example or sports venues or concert venues those kinds of things if they take if they go to that measure and talk a lot about protecting the safety of their of their customers or their guests large hotels for example as well I foresee that being a potential legal issue for them going forward and it may create a whole new cause of action and a whole new rash of lawsuits I think that’s a possibility

[14:15] Bill:
Well let’s end on the most probably the most important note what is going to happen with college football? I mean we’re in the state of Florida where you know pro sports no one watches pro sports in the state of Florida. College football are they gonna play without fans? Are you hearing anything about this because we’re all chomping at the bit here, that was not a Gator reference by the way, but we’re all you know we all need something and as fall approaches do you have any predictions where particularly college sports where this is all going?

[14:49] Benjamin:
What’s funny you asked me this question it’s also funny you make the chopping of the bit reference because both of my sons go to University of Florida so we talk about we talk about this and I told them the other day I could foresee the college stadiums allowing every other seat being filled as a compromise but how would that work right I mean for people with season tickets so would you be allowed to go to every other game and you’d have to share a seat with somebody else meaning you know you get to go one game and then you have to skip one and then someone else gets your seat the next time I don’t know it’s a nightmare I don’t to me you’ll almost have to do it all or nothing because either you have no fans but if you had if you said we’re gonna have 25 fans or 50 fans how would you do that would you give priority to season ticket holders but they’d have to sit one seat over from each other and only get to go half the games I mean it would be it’d be a nightmare it’d be an absolute there’s there’d be no way to satisfy anybody so I feel like it’s almost gonna have to be all or nothing honestly and I just don’t know when I don’t know when we’re gonna know just like with everything else we will know when we know but there has to be I think there’s gonna have to be uniformity meaning that the colleges and universities are going to have to come up with one policy I think you can’t piecemeal it where some are going to allow fans others are not it’s going to I think it’s going to have to be across the board

[16:21] Bill:
and I’m sure there’ll be lawsuits from all those decisions as well

[16:25] Benjamin:
Probably I mean and there’s gonna be look at the concert venues and that kind of thing I mean there’s gonna be all kinds of lawsuits coming out of ticket sales and lack of refunds for ticket sales and vendors and yeah it’s gonna problematic

[16:40] Bill:
Wow well Ben thank you so much for being on the podcast great to see you great to hear from you good luck on the mediation front we’ll be in touch soon