Q&A: Mediator Rusty Grant
What do you say in the opening session to orient the parties to the process and get things off to a good start?
I always start by explaining to the parties who I am and what my background is. I then walk them through the mediation process and explain that they have the control, that no one is going to make them do anything but that we are going to explore the reasons why it might be beneficial to resolve the case at mediation rather than put the case in the hands of a jury. Most importantly, I want the parties to know that I will listen to anything they want to tell me and that I will give them honest feedback about their case.
What do you say to a party or attorney who wants to “walk out” because things are not going well? Are there times when a “walk out” is effective, or even necessary, for a party to make an important point?
Every successful mediation has a point at which one side or the other believes it is going nowhere. Mediations are a process, and part of that process is pushing through those times when the immediate desire is to walk out. A walk-out ensures that the case won’t settle, at least not that day. On the other hand, listening to the other side and understanding why a party is taking a particular position, even if you don’t agree with it, can only help. Even if it doesn’t ultimately result in a resolution, there will be a better understanding of the case and help that attorney prepare the case for trial.
How do you deal with an attorney who is not giving you access to the decision maker?
In that situation, I will ask the attorney to allow me to help him or her. No case is flawless, and having the ability to explain the strengths and weaknesses of a particular case to the decision maker can only help the attorney lay the groundwork for either a future settlement or echo concerns that likely have already been expressed by the attorney to that decision maker.
Mediators, attorneys and the insurance representatives in injury cases are mostly familiar with each other and can appear, to the injury plaintiff, to all be members of the same club. How do you make the injury plaintiff, who can feel like an outsider, comfortable in what is for them a very unfamiliar environment?
I like to head that impression off early with injury plaintiffs by explaining that if that person’s attorney has a rapport with the other side, that is a good thing. It may mean that attorney has worked on the other side before and learned how they think. Or, it may just mean there is a friendly relationship such that the other side will remain respectful and open-minded in the negotiations. While a lawsuit by its nature is an adversarial process, a mediation is more of a collaborative process, and it is much easier to collaborate when you have a good working relationship.
What distinguishes you from other neutrals who practice ADR?
I have handled thousands of cases of all different types and all different severity levels. I have worked with hundreds of attorneys. One of the better compliments I have received from many attorneys I’ve worked with is that they don’t see me as representing one side or the other. I feel I am an objective person who can easily see more than one side to a particular issue, and I believe that serves me well in this role.
There’s a prevailing notion that one needs 30+ years of experience to be a mediator or arbitrator, but the success of your ADR practice, runs counter to this notion. Why is this the case?
I don’t believe you have to have 30 years of experience to have a wealth of experience. The reality is that our clients are made of people of all different ages, races, genders, and personal backgrounds. To me, that has a much greater impact on the outcome of a mediation than simply years of service.
What does it take to resolve an intractable dispute?
Persistence is key. If I mediate a case that reaches impasse, I tell both sides that they will be hearing from me again. I follow up and I try to explore more avenues for resolution. If nothing else, I want those parties to know that I have a vested interest in helping them and that I won’t easily take no for an answer.
It’s often said that a good mediator needs to have credibility. What makes you a credible mediator?
I consider myself a straight-shooter who is honest with the parties. I’m not a sugar-coater, but I’m not a browbeater either. I see part of my role as giving honest, sincere feedback and, necessarily, that will involve recognizing both the strengths and weaknesses of an individual case. As I said, no case is flawless. If it were, it would have already reached a resolution.
Trauma impacts how people function, communicate, collaborate and negotiate with others. It’s crucial that mediators recognize the experiences and emotions that clients display at mediation. Sometimes the client’s needs can impact the process and outcome at mediation. How do you manage these types of mediations?
I tell every plaintiff that he or she has endured a personal experience and that, while no one else at the mediation has been through it, we all recognize that it exists. I will listen to a plaintiff for as long as he or she wants to explain that experience to me. Some plaintiffs need the mediation to be their day in court, and I want them to have that.
How can attorneys make the most of the mediation session?
Attorneys should recognize that far more cases go to mediation than go to trial. They should come prepared and begin the process with an open mind. It is also important to be patient though, because mediations can often have a “feeling out” process that especially occurs with an injury plaintiff. More often than not, if attorneys recognize these things it will result is a successful resolution.
Minorities, women and those who are LGBTQ are vastly underrepresented on mediation and arbitration panels. What can be done to address this?
Like anything else, it is important for people in a particular industry to keep their eyes open for talented people. For myself, I notice attorneys who I think have the attributes of a good neutral and have on occasion asked if they’ve ever considered it. Miles more so than any of our competitors targets and attracts diversity. It’s one of our core values because it is important for our client base to have a choice when considering who to choose on a particular case.
There are lawyers who think unless resolution is assured, alternative dispute resolution will delay a trial and increase costs. How would you respond to this view?
If a resolution were assured, the case would have already settled. The expense and time of a mediation is a drop in the bucket compared with the expense and time of a trial. And, at mediation, there is no risk. The parties have control and decide what they want to do. At trial, it is out of the parties’ hands, and a jury might tell them something they don’t want to hear.
What can clients gain by doing pre-suit mediation?
Pre-litigation mediation can be a wonderful tool to end expense early and put the focus on resolution, rather than conflict. The litigation process can be stressful and expensive, and it’s amazing how quickly some cases can be resolved when the approach is one of cooperation toward a common goal of putting a particular matter in the rearview mirror.