Accounting/Finance, Business/Commercial, Employment, Entertainment and Sports, Estates/Probate/Trusts, Health Care, Insurance, Real Property
With more than 10 years of experience as an ADR professional, a Ph.D. in communications and a law career spanning more than 30 years, Dr. Joan B. Kessler has the legal experience and knowledge to quickly understand even the most complex of legal issues. Her experience as a jury researcher and consultant affords her the ability to provide key insights into jury dynamics. As a Daily Journal article stated, "With her background as a lawyer and jury consultant, she is able to show people how a case could play out in front of a jury, which gets them to become more realistic."
"Once Joan gets her teeth into something, there's no shaking her off . . . She has boundless energy." Dr. Kessler is a uniquely qualified mediator and arbitrator whose training and education allow her to communicate effectively with attorneys and all parties involved in her matters. Her background in communications helps her to develop a rapport with even the most challenging, hostile and high-profile personalities. She possesses a keen ability to bring parties together to reach resolution on even the most contentious of matters. As stated in the Daily Journal, "She is absolutely driven to get parties to settlement . . . There is constant follow-up." Dr. Kessler uses her ability to speak Spanish and her understanding of inter-cultural uniqueness in Korean, Persian, Israeli, Armenian, and other cultures to help resolve disputes through mediation.
Dr. Kessler has mediated and arbitrated hundreds of diverse matters, including individual and class action employment; real property; business/commercial, including partnership and shareholder disputes; estate/probate/trust; insurance; and entertainment cases. Dr. Kessler has now joined the team at JAMS as a mediator, arbitrator and special master.
Q&A with Joan Kessler, Esq.
Q: Do they recommend exchanging briefs with opposing counsel? Why?
-- Brian Kabateck, Kabateck Brown Kellner LLP
A: A well-drafted, persuasive mediation brief can be a very helpful tool if exchanged with opposing counsel. I know that some clients will not permit that, however. Sometimes, I suggest removing the settlement section and other "For Mediator's Eyes Only" information and exchanging a redacted brief. This provides a clear picture of the client's position and sometimes makes the premeditation chats between counsel and the mediator more productive.
Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?
-- Rick Richmond, Jenner& Block LLP
A: I take the opportunity to be the mediator very seriously. I am a mediator because I really like to help people settle their cases. I used to work internally when I was practicing to help resolve the matters, and I guess I am aggressive in getting cases settled. I read everything the attorneys send me and I call the counsel usually after I receive the briefs, but sometimes even before I receive the briefs. I ask each side what they need from the other side and see if I can get that information or document brought to the mediation to increase the likelihood of settlement. I also tell counsel that I want the key decision makers at the session and ask that they bring the central documents, exhibits, relevant case law and charts or statistics to help settle the case.
Q: How important is reputation, as a tool for the mediator (on both sides plaintiff or defense) to help with a successful resolution?
-- Paul Kiesel, Kiesel Law LLP
A: I discuss my views of the case confidentially with counsel and unless they don't want one to share my views, I usually give my thoughts at least to counsel and to their clients. Many times counsel asks me to share these insights with the clients to help them become more realistic. In cases where there will be a jury, many times counsel want my jury consultant/researcher hat on to give my insights from my years as a jury consultant/researcher. I am known to be honest and direct, yet compassionate and sensitive to people's feelings and insightful on the intercultural communication issues in the mediation. Many times I give a downside risk to each side by emphasizing the various strengths of counsel and/or the parties when relevant to lead to resolution.
Q: Do they ever use a joint session? Ten to fifteen years ago we did those with regularity. If not, why not?
-- Brian Kabatek, Kabateck Brown Kellner LLP
A: While I usually do not use a joint session at first in a highly emotional/hostile mediation, I many times at least bring counsel together at some point to make sure that they are really communicating. Once in awhile the plaintiff really needs an opportunity to have their "day in court" so I will have them, with counsel's permission, make their case. However, in employment or highly charged estate/trust/probate disputes or highly hostile business/real estate/entertainment, etc. disputes sometimes having the feuding parties fight it out is not the best strategy, especially until after I get the lay of the land. I have had cases where having the parties and counsel work it through with me together is helpful, but usually not in employment cases.