Hi, this is Jill Bollwerk. That is a good question. In order to understand what a mediator does, let’s first discuss the concept of mediation.
Harvard defines the word “mediation” as “a form of dispute resolution that allows individuals and/or organizations involved in a dispute to work together towards resolving their own differences.”
The person who facilitates the mediation is the mediator, who is trained to work closely with all parties to a dispute. The mediator listens to all sides of the dispute and works with all parties to identify the issues and explore underlying interests and possible solutions. The mediation process gives parties a chance to tell their side of the story and to hear the other person while focusing on moving forward. Mediators are often called “neutrals,” because they remain neutral throughout the process. Unlike a judge, mediators do not decide the result of the case, but rather, mediators help the parties to determine their own results. Mediations are confidential, so the mediator cannot reveal to anyone what happened during the mediation. If the case does not settle at mediation and then has to proceed to trial, the parties cannot use anything that was discussed at the mediation in the trial,
As a trial attorney for more than three decades, I found that many of my cases that seemed unresolvable were often resolved with the help of a highly skilled mediator. Sure, I am a trial attorney, and I love to try cases to juries, but sometimes, a trial is not the best possible outcome for certain cases or clients. In those cases, mediation has been the way to get a positive resolution for a client who needs to put the dispute behind him and move forward in his life.
Because I found mediation so helpful to my law practice, I decided to train as a mediator so that I could assist other attorneys and their clients in resolving their disputes. I had trained as a mediator over 20 years ago, but never really mediated any cases. Then, in 2017, I decided to repeat the training to be certified as a mediator by the state courts, and I am now a certified mediator on the neutral panel of the US District Court Eastern District of Missouri, as well as several Missouri circuit courts. I am also a private mediator on the panel of Lexitas ADR, where parties can hire me to assist them with attempting to resolve their disputes.
My style of mediation is what is known as a caucus style, which is typically the style used in most civil litigation cases. These mediations can be done in person or on-line through Zoom or other on-line meeting avenues. Usually, I ask the parties to provide me with a confidential position paper, where the parties each write me a letter that I do not share with their opponent, giving me the story of their case, the issues they recognize in the case, and their thoughts on where they feel the case is going and their thoughts on how the case can be resolved. I usually request this paper about 3-5 days before the mediation. Then, at the actual mediation conference, I already know where the parties’ heads are with the case and I may have already developed some insight into how I can get these parties to come together.
If the mediation conference is in person, we usually meet briefly in a main room to just say hello and to introduce the parties and their representatives to one another. Then, all of the parties and their attorneys are assigned to different rooms, where they typically spend the remainder of the mediation. As the mediator, I then “caucus” with each party, which means that I speak to each party separately. I start in one room with one party, find out where they want to start with the negotiations, and then travel back and forth between the rooms, discussing positions and exchanging ideas on how to keep the negotiations moving forward. I keep the contents of what is discussed at the caucuses confidential, so the parties can feel free to tell me their strategies and concerns about their case without having to worry about tipping their hand to the other side. This sounds rather simple, but it can get really complicated, as I have to manage the emotions of the parties, making them feel heard and validated, while also moving the conversation about resolving the matter forward. I have taken courses in negotiation psychology and frequently attend continuing education courses to learn new techniques in handling this sort of tense interpersonal situation.
A majority of the wonderful mediators in St. Louis are either retired judges or retired attorneys, and I use their services all the time in my own cases. As a female trial attorney who still spends a great deal of time in the courtroom, I am kind of a unicorn when it comes to the profile of your typical mediator. The fact that I am still a full-time litigator does prevent me from getting hired to mediate as much as my retired colleagues, as my availability is limited because I am still a busy litigator. But when I do get selected as a mediator, I feel I have a lot of perspective on what is currently going on in the courts as a practicing trial attorney. Also, I did work for an insurance company early in my career, before I started my own plaintiff’s personal injury firm, so I do feel I have balanced insight into the motivations behind both sides of a civil case.
In Missouri, our tort laws are constantly under attack. Every year or so, a bill is proposed in our legislature to reduce our statute of limtiations on accident cases from five years to two years. If this law ever passes, more people will be forced to file lawsuits while they are still in active medical treatment for their injuries. Many people are very adverse to filing lawsuits, so they may feel motivated to using alternative dispute resolution as a way to resolve their cases without having to go through the stress of deposition and trial. I see mediation as a tool that will be utilized much more frequently if that comes to pass.
I very much enjoy mediating—it gives me great satisfaction in knowing that I have helped some attorneys and their clients resolve some seemingly impossible cases to settle. As I enter the later years of my career as a trial attorney, I hope to mediate disputes for others more and more.
I greatly appreciate those attorneys who have taken a chance on me as a mediator. I hope I did a great job for them, and I hope I can continue to help many more parties resolve their disputes. If you want to try something new for your next mediation, I hope you consider taking a chance on me. You can call me at my office number to schedule with me, or you can schedule through Lexitas ADR at 800-280-3376.