After 37 years mediating civil litigation, John Leo Wagner likes to say he has many tools in his satchel to reach resolutions. For instance, there's one he calls the Greedy Game and another named Tell Me Your Legend.
Early in a mediation, he might start out with old standbys like Ping-Pong and Bracketing and then switch to a newer variation he's been developing he's titled the Zipper. That, ideally, leads to Constructive Frustration. But for exceptionally difficult moments, there's always the Power of Silence.
Wagner said his approach to settling cases "is always being developed." How he mediates any particular case depends on the case type and the personalities involved. "I don't have a rote procedure or approach. I try to be creative and adapt to what's being presented."
For instance, the legend-telling approach -- in which parties talk about their lives from birth through litigation -- works well for employment cases or ones involving high emotions.
The Greedy Game works best for large financial or securities matters. It springs off a mediator's settlement proposal that fails. After each side agrees to be bound by the result of the game, they bid against that proposal. "The number that's closest to the mediator's proposal wins and becomes the settlement amount," he said.
Wagner developed The Greedy Game in 1996 while mediating multidistrict litigation growing out of an oil-drilling fraud scheme that took as much as $100 million from some very high-profile investors. At the time he achieved the settlement, the 22-year-old case was the oldest active civil lawsuit in Tulsa's federal court. In re: Home-Stake Production Co. Securities Litigation, MDL No. 153 (N.D. OK)
In more typical cases, he shifts techniques during the mediation, beginning with ping-ponging offers and demands from each side. Then he and the parties set up their settlement brackets. "It fails because if you could settle a case with that, the lawyers would've done it a long time ago," he said.
That's when Wagner may try the more focused approach he calls the Zipper. He looks at the increment between the first and second proposal on each side and then keeps pushing each side closer by those same increments. "It's kind of like walking down a trench that keeps getting deeper," he explained. "The further down that trench you get, the less likely you are to jump out of it."
It might take many small moves to reach an agreement. But "if it's working well, each move takes about a minute."
Lonnie D. Giamela of Fisher & Phillips LLP calls Wagner "one of the most effective neutrals in Southern California." He doesn't simply ferry numbers back and forth between parties. Rather "he uses your history of prior offers, not just the current one, to signal where you want to go.
"I don't know how he does it sometimes, but he is able to very accurately forecast where the agreement will be at the end of the day," Giamela said.
He does fashion mediator proposals sometimes, according to Greenberg Traurig LLP's Jeff E. Scott. "But he's not too fast to do that. He likes to let people get there on their own."
Wagner thinks outside the box to come up with creative business solutions to disputes not dependent simply on dollar figures, he added. "He's terrific," Scott said.
Wagner has been mediating civil cases since 1985 when he was appointed as a federal magistrate judge on the Northern District of Oklahoma in Tulsa and given the assignment to conquer the court's huge backlog. It took 10 years, but he and the many volunteer attorneys he trained finally succeeded.
He was born in Ithica, N.Y., but grew up in Buffalo and then Omaha, Neb., where his father was the vice president of a chain of dairy stores. He attended the University of Omaha for one year but earned his undergraduate and law degrees from the University of Oklahoma.
After graduating in 1979, he joined a small law firm that later merged into Kornfeld & Franklin, where he primarily defended railroads in litigation. "I was thrown right into the cauldron of fire," he said. "We were in trials almost every week."
He was in federal court often enough that the judges knew and respected him. In 1985, after he had been practicing just six years, the judges appointed the then-31-year-old as a magistrate judge.
At the time, the Northern District of Oklahoma was flooded with litigation from the oil boom and crash of the early 1980s, and the judges asked him to create a court-annexed mediation program to reduce the backlog.
"I was uniquely qualified," Wagner said. He had lots of litigation experience, he was young and energetic "and kinda stupid" to think he was taking on an 8-to-5 government job.
"I never worked so hard in my life." In addition to managing a full judicial docket, he mediated about five cases a week.
"We were a court in crisis," he said. "I would generally start a mediation at 1 o'clock in the afternoon, and it was not unusual for us to go to 10 or 11 o'clock at night."
As he learned how to mediate, he tried many different approaches. Some worked, some didn't. For instance, because he was repeating the same introduction every mediation, he decided to simply play a videotape of it. "It was pretty much a colossal failure," he said, because when the video would begin, people would put their feet up on the tables and read newspapers.
Nevertheless, Wagner and the roughly 50 volunteer lawyers he recruited managed to eliminate the backlog in 10 years.
He stayed on the court another two years. Then, in 1997, former U.S. attorney and judge Layn R. Phillips asked Wagner to join Irell & Manella LLP to launch an ADR practice as a separate profit center within the firm. "It was a little unusual, but it worked," Wagner said.
In 2005, he moved to Judicate West, where he mediates, and arbitrates, all kinds of litigation from employment and torts to complex securities, insurance and intellectual property cases.
"I like the variety," Wagner said, adding, "I've really enjoyed some of these larger environmental cases lately."
One of those he wrapped up recently involves the longest-running oil spill in U.S. history, the collapse of an oil production platform in the Gulf of Mexico from Hurricane Ivan in 2004. The Louisiana-based mediation involved five governmental entities and seven lawsuits. A court in March approved the global settlement he hammered out. U.S. v. Taylor Energy Co. LLC, 2:20-cv-02910 (E.D. La., filed Oct. 23, 2020).
Wagner said he believe he got the assignment to mediate that case because of his earlier success bringing in a $60 million deal to settle litigation out of the 2015 Refugio Beach oil spill near Santa Barbara. A baker's dozen governmental entities participated in those negotiations. U.S. v. Plains All America Pipeline, 2:20-cv-02415 (S.D. Tex., filed March 13, 2020).
He was used to that size case. In the early 2000s, he mediated a complex regulatory dispute about the oil entering and leaving the Trans-Alaska Pipeline System. "I think at one point we had a meeting in San Francisco where I had 12 rooms going at the same time."
And Wagner was one of five mediators across the nation that a bankruptcy judge gave just two weeks in 2020 to resolve litigation in the bankruptcy of a major lead smelter. In re: Exide Technologies LLC, 1:13-bk-11482 (Bankr. D. Del., filed June 10, 2013)
Of course, he also mediates more normal-sized matters. "We're doing a lot of employment work these days just because these cases have exploded," he said.
Sole practitioner Peggy A. Farrell specializes in employment and civil rights cases. She said she has worked with Wagner for 22 years and mediated three cases with him in the last month alone.
She said he is good dealing with public entities like police departments, with insurance issues and with traumatized plaintiffs. "He's very empathetic with people."
Further, he can convey unpleasant comments from the defense without offending the plaintiffs. And if problems arise hammering out the settlement agreement document, he helps with that, too, Farrell said.
"Every case, the other side likes him, and the clients want to thank him," she said. "He does a good job of taking emotion out of the negotiation. ... He's sincere. He's brilliant."
Here are some attorneys who have used Wagner's services: William Brighton, U.S. Department of Justice Environmental and Natural Resources Division; Paul Genender, Weil, Gotshal & Manges LLP; Paul J. Goodwine, Looper Goodwine; Edward Lara, Lara & Luna APC; Craig Mariam, Gordon, Rees, Scully & Mansukhani LLP; Bradley R. O'Brien, U.S. Department of Justice; Jason Takenouchi, Kasowitz Benson Torres LLP.
--Don DeBenedictis