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Litigation & Arbitration

Nov. 8, 2017

Jeff Kichaven, Esq.

Jeff Kichaven Commercial Mediation

Kichaven jeff online


Insurance Coverage, Intellectual Property, Professional Liability

• I customize each mediation. A one-size-fits-all approach does not work. Lawyers often tell me, "This was unlike any other mediation I've ever attended." My response is, yes, it's been different from any other mediation I've ever attended as well.

• I don't engage in shuttle diplomacy as my only tool. While it is sometimes appropriate for the mediator to carry messages back and forth between the sides, those moments are far less frequent than unskilled mediators would have you believe. I encourage direct communication between the sides. Sometimes, it's a matter of having everyone together in a joint session. Sometimes, it's bringing the lawyers together to talk with each other.

• I don't lie to get people to make deals. There is a concept in mediation literature - believe it or not - called constructive deception. I will not elevate the goal of making the deal over the goal of helping people make clear, strong decisions. The irony is that the less you pressure people to settle, the more cases settle. When people are given time and space to process the options, they're more likely to settle than if they feel they're being sledge-hammered for the sake of settling.

• I don't approach mediation as a feel-good kumbaya. I blend a friendly personality and soft demeanor with a rock hard and rigorous legal analysis of the strengths and weaknesses of any issue.

The only "force" that works well in mediation is the force of logic. In high-end cases, top-flight attorneys and their clients are bully-proof. You can't scare them. So it's not so much a matter of forcing cases to settle as letting them settle. The people who come to my mediations are not stupid. They're smart and successful. They'll make the right decisions, given the chance.

That's how we get tough cases settled.

Q&A with Jeff Kichaven, Esq.

Q: How detailed are your disclosures about your prior relationship with parties or counsel? Why have you chosen the level of disclosure you selected? Are your disclosures different depending on whether this is a mediation or arbitration, and why?
-- Jennifer Keller, Keller Anderle LLP

A: I disclose everything. I want there to be zero chance that, after a mediation, someone will learn something which will concern them. Since I grew up in L.A. and went to college in the Bay Area, there can be a lot to disclose: Someone was my brother's high school classmate; someone's kid was on my kid's AYSO team 25 years ago (and a younger lawyer himself was on my kid's team!); a younger lawyer's grandmother played Mah Jongg with my mom. Most people appreciate the candor and shrug it off. Once, I disclosed that my second cousin Matt was an M&A partner in a law firm's Chicago office. I lost the case. That's ok. Sometimes, I get a case because another mediator made a disclosure. Nobody ever tells you that. But I know it happens. There's plenty of work to go around. It's a just world; I get my share.

Q. Many litigators report that at the beginning of their careers, many mediators start their mediations with joint sessions at which the parties' lawyers give short opening statements or arguments. As they do more mediations, however, mediators tend to dispense with such opening statements and proceed directly to separate sessions with the parties. Is that accurate and, if so, why? Do you think opening statements are valuable in some cases and, if so, under what circumstances?
-- Brad Brian, Munger, Tolles & Olson

A: While every case is unique, I presumptively have joint sessions. I know other mediators don't. Sometimes I think I have more joint sessions than all the other mediators combined. Turns out lawyers like them. That's because we go in prepared to generate progress. We don't have old-fashioned "plenary" joint sessions where everyone hurls firebombs. We have joint sessions with narrow, focused agendas. After I read the mediation briefs, I call the lawyers to focus on the central issues and narrow our agenda to just those issues. In the joint session, we stick to the agenda. I ask lots of questions. Well-prepared lawyers welcome them. This sets the stage for caucuses in which we discuss and evaluate the joint session discussion of the agenda items. It helps clients understand there are two sides to the story. That's how we create flexibility, generate progress and get more cases settled.

Q: How close do the parties need to be for a "mediator's proposal" to succeed in settling a case?
-- Brad Brian, Munger, Tolles & Olson

A: The Mediator's Proposal is like cross-examination. The best cross-examiners never ask a question unless they know the answer. The best mediators never make a Mediator's Proposal unless they know it will be accepted.

Q: How do mediators do this?

A: First, there's timing. When most of the gap has been closed and you sense the aroma of settlement, but the bargaining stalls and nobody wants to blink, that's the best time for a Mediator's Proposal. Then, there's planning. I like to get counsel's permission to make a Mediator's Proposal. I also discuss possible numbers with counsel and don't like to make a Mediator's Proposal unless all counsel agree to recommend the number to their clients. With those recommendations, we're likely to succeed. If a Mediator's Proposal is rejected, it can kill the negotiation. That's why it's so important to make Mediator's Proposals skillfully, at the right time and in the right way.


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