mediation q & a with michael wales

1. What is your legal background?

In the past 30 years, I have served as an Assistant City Attorney in Anaheim, California, a Deputy District Attorney in Maricopa County, Arizona, a Municipal Court Judge, a State Administrative Law Judge, an insurance defense attorney, and a construction defect plaintiff’s attorney in several state and federal courts. As an Administrative Law Judge I conducted hundreds of cases involving citizen disputes with over 64 distinct state agencies. My trial and settlement success has landed me as a life-time member of the Multi-Million Dollar Advocates Forum. I have formal training in mediation and have participated in hundreds of mediations and settled hundreds of cases. I have been on both sides of the table. When you litigate cases, you really understand how it works on both sides. You understand the emotional impact and you understand the financial impact on both sides. Being on both sides helps me effectively communicate with each side.

2. What types of cases do you mediate?

Personal injury, premises liability, products liability, bad faith, medical malpractice, construction defect, indemnity, business disputes, wrongful termination, wage and hour disputes, real estate, non-disclosure, will and trust administration disputes, trademark, landlord-tenant; and multi-party complex matters.

3. Why Zoom?

There are no limitations on time and space in a Zoom Mediation. You and your clients can be comfortable in your surroundings, and no one has to travel to the mediation site. You will have your own breakout room where you can privately discuss your case with me.

4. Are you available for last-minute mediations?

If my calendar permits, I am happy to take a last-minute mediation, which can allow the parties to avoid costly discovery, expert witnesses and other litigation expenses.

5. Do you ask for pre–mediation briefs?

I do like to receive briefs prior to a mediation. I encourage the parties to exchange them. People need to understand that they are writing a brief to inform the mediator, but equally important is the fact that you are trying to set forth your view to be understood by the other side. Of course, if a party wants to communicate with me confidentially, they can write me a letter and still exchange their mediation brief. I also like to speak with the parties by telephone in advance of the mediation. I often can get a good idea of the important issues prior to mediating the case, especially if I have to juggle a myriad of competing issues form a group of different lawyers and parties. I want to gain an early understanding of the facts, issues, positions, and what the parties hope to accomplish at mediation rather than just hoping for some beneficial result.

6. Do you give your opinion to a party as to what their case is worth?

If asked I will describe similar cases I have a handled and how they turned out, but I do not give my opinion as to case value unless asked. I set a low-key, light-handed coaxing atmosphere in my mediations. I prefer to get people to agree rather than coerce them.

7. Do you begin a mediation with an opening session where all the parties are together in one room?

I do not. I am not a fan of joint sessions due to the acrimony they often generate. Likewise, I am not simply a shuttle diplomacy, just take back and forth mediator. I do want the parties to feel they have been heard. I also like to flesh out the issues and hear how both sides evaluate their case and the reasoning behind their evaluations. I want the parties to heal. I like to understand how a party sees their own case’s strengths and weaknesses. While I do want the parties to feel comfortable talking with me, I do ask a lot of probing questions. I want to find out what is truly driving the litigation from a parties’ point of view, rather than the lawyer’s point of view.

8. Why do you advocate for early mediation?

Early mediation is extremely beneficial in that it avoids opposing sides getting too “dug in” and spending so much money that the tail (costs) wags the dog (the case). It is a chance for both sides to “workshop” the key points in their respective cases to see what resonates and falls short.

9. Do you allow witnesses to attend the Zoom mediation session?

Yes, if you have a compelling key witness, please feel free to forward the mediation Zoom invite to them. When we go to your breakout room, I do want to hear what that witness has to say.

10. Do you discuss the best alternative to a negotiated agreement (BATNA) and worst alternative (WATNA) with the parties?

I often do. I ask parties to imagine what happens next if the matter is not resolved We discuss the possible legal, emotional and financial consequences of not resolving the dispute. I will say I am not a fan of what Henry Kissinger called “salami politics”, i.e., starting at an extreme position and slicing off thin slices until a resolution is achieved.

why mediate?

One option for a person, couple, or business in conflict is to
go to court. The legal system can resolve their dispute, but
the emotional and financial costs can be devastating.

Many disputes have a prior history of an amicable relationship. Litigation (arbitration or court) will likely kill any prospect of continued relations.

Why Online?

Conducting mediation online, as opposed to in-person, provides the opportunity to extend the benefits of these alternatives to many disputes including, but not limited to, the following:

Disputes between parties who are too geographically distant to enable a meeting to take place;

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