Q&A: Mediator Doug Wilde
What do you say in the opening session to orient the parties to the process and get things off to a good start?
To get things off to a good start, I let the parties know that they’re in charge of the process and that there is no group of people more knowledgeable about the case and the issues involved or more qualified to make a decision about its resolution. I also emphasize the fact that, while the jury system is the best system there is for resolving disputes, the decision at a trial is going to be made by twelve folks who really don’t want to be there based on only a small fraction of what the parties have been experiencing since the underlying incident.
How do you help an injured plaintiff feel at ease during the mediation process?
Because the plaintiff in a personal injury case most likely has not gone through the mediation process previously, and is likely to feel uncomfortable in the process, I (and the entire staff at Miles) try to put that plaintiff at ease from the time he or she walks through the front door. I stress the fact that, unlike giving a deposition or testifying at trial, when they are simply answering questions that are asked of them, the mediation is more about having a conversation in an informal setting. I also stress the fact that it is a confidential process so they know that what they say cannot later be used against them at trial. When mediating a personal injury case, I find it is crucial to exhibit empathy to the injured plaintiff, which I attempt to do by encouraging the plaintiff to discuss their situation, at least in the private caucuses, and through active listening. By listening and asking follow-up questions, I am often able to ascertain some underlying factor that is motivating or influencing that plaintiff’s negotiating strategy, which then allows me to seek a means to address that particular factor.
What does it take to settle a seemingly “unresolvable” dispute?
I like to think that there is no such thing as an “unresolvable dispute” and that all disputes can be resolved. If an impasse occurs at mediation, it is often because one side or the other does not have all the information necessary to fully evaluate the case. In that situation, I encourage the parties to develop a plan so both sides end up obtaining all the information needed to evaluate the claim. I then follow up with the attorneys to offer any additional assistance that they feel may be beneficial to the process.
It’s often said that a good mediator needs to have credibility. What makes you a credible mediator?
The credibility of the mediator is directly correlated to the success of that mediator. In my case, I believe that my credibility has developed over my 30 plus years in practice and through the way I have always attempted to work with opposing counsel, parties and court personnel. The majority of my mediations are arranged by attorneys I have worked with or against over the years, which I view as a testament to my credibility.
How can attorneys make the most of the mediation session?
To make the most of the mediation session, I believe it is important that the attorneys begin preparing for the session days, or even weeks, in advance and to make sure that all the necessary documents, medical records and bills have been exchanged. Nothing is more of a non-starter than showing up at mediation with additional documents, records or bills that the other side has not seen or taken into consideration in evaluating the claim.
There are lawyers who believe that unless resolution is assured, alternative dispute resolution will delay a trial and increase costs. How would you respond to this view?
The results at Miles Mediation & Arbitration show that the vast majority of cases that go through mediation are resolved, either at the mediation or shortly thereafter and as a direct result of the process. Therefore, the odds certainly favor success at mediation. Very often, the mediation is held far enough in advance of trial so that evidentiary depositions, usually those of treating physicians, have not yet been taken, thereby saving those costs in the event of success. In addition, many courts now require the parties to go through mediation, and a deadline for doing so is included in a scheduling or case management order. In those cases, there is unlikely to be any delay in the trial since it normally will not be scheduled for trial until the mediation has taken place.