How an Experienced Mediator Gets Results

Hi Welcome to MediatorPodcast.com - A podcast and video series about mediation, negotiation and collaboration.  My name is Melissa Gragg, I provide online valuation and mediation services in St. Louis, Missouri.  

During this episode we will discuss “How an Experienced Mediator Gets Results” with Elliot Herland, a mediator focused on workers’ compensation cases, based in Minneapolis, and Vice Chair of the ABA Section of Dispute Resolution-Membership Committee.

Welcome Elliot!! 

1. Let’s start out easy for our listeners. How do you explain to people what you do? What is a mediator? 
2. Why would a person or company need to hire a mediator? 
3. Over the past 20+ years you have conducted over 1,000 mediations involving unions, employers, employees and insurance companies. You manage to settle 95% to 98% of these mediations. What happened to the ones that didn’t settle? 
4. What do you think makes for a successful mediation? Particular client traits? Mediation Skills? 
5. What is a typical mediation process or the “Herland Mediation Process”? 
6. Let’s talk more about “The Mediator’s Proposal” and different     mediation approaches used by experienced mediators. 
7. Mediators run into many different personalities. How do you deal with the difficult ones? 
8. You provide mediation services online, via telephone and in-person (socially distanced of course) Which one works best in your opinion? When did you start doing online mediation? 
9. When someone is considering hiring a mediator – what questions should they ask? 
10. How can an employer/Insurer be prepared for a workers’ comp mediation? How can an employee be prepared for a workers’ comp mediation? 
11. Tell us more about you and your firm. 

Melissa Gragg
CVA, MAFF, CDFA
Expert testimony for financial and valuation issues
http://www.BridgeValuation.com
Cell: (314) 541-8163
Bridge Valuation Partners, LLC
melissa@bridgevaluation.com 

Elliot Herland 
Mediator  
Herland Mediation Services 
Vice Chair, ABA Section of Dispute Resolution-Membership Committee, Student and Early Career Outreach  
Phone: 952-240-4005  
Email: herlandmediationservices@outlook.com  
Website: https://www.herlandmediation.com  
LinkedIn: https://www.linkedin.com/in/elliot-herland-mediation-services/  
Facebook: https://www.facebook.com/herlandmediation/ 

Transcript

Melissa Gragg: 0:00

Hi, welcome to mediator podcast.com, a podcast and video series about mediation, negotiation and collaboration. My name is Melissa Gregg and I provide online valuation and mediation services in St. Louis Missouri. During this episode, we will discuss how an experienced mediator gets results with Elliot. Hurlin a mediator focused on workers' compensation cases based in Minneapolis, and he's also the vice chair of the ABA section of dispute resolution and on the membership committee. That is so amazing. So welcome. How are you?

Elliot Herland: 0:37

I'm fine. Thanks for having me. I really appreciate being a guest on your show.

Melissa Gragg: 0:42

Oh, well, we appreciate you because you have such amazing experience in the mediation space, but we got to kind of get our listeners up to speed. And so let's start out kind of easy with, you know, how do you explain to people what you do or what is a mediator?

Elliot Herland: 1:01

Sure. Well, I think it's important for people to know what I'm not, uh, I'm not a litigator, I'm not a warrior, a warrior just didn't really fit on me too. Well. I was more into, uh, the deal and helping people avoid the litigation. That's where that's what my joy generator is, is to, uh, help people find peace. I'm a peacemaker is what I am. So I help people reach their goals in mediation, uh, and that's all sorts of things, but I want them to reach reasonable goals. And I think of mediation as a journey. So it's their mediation, it's their journey. And I'm just there to guide them through it so that, you know, my responsibility is to guide them, but it's their mediation and they're the ones that are going to handle the negotiation. And they're going to determine the result, whether it's a, a settlement or not, uh, and, and both results are fine. It's really what they're looking for. The other thing I tell people is that, although I want to appear neutral, I'm not neutral. I'm objective. I don't judge. I don't give legal advice. Uh, I'm there to listen, find out more about who they are, what they're trying to do, and then get them from point a to B, to C because it's many steps.

Melissa Gragg: 2:48

Well, and I think that a lot of times there's communication issues with the parties. And so they can't get to a resolution, but I've kind of called it a little bit like a master brainstormer. Like we aren't really there to tell you how to do it or what to do or what the final result is, but we're just kind of there to coach you along and come up with a lot of different options. That could be a possibility. And then you have to determine if they are a possibility or would fit with that situation. So that's, that's kind of how we've summarize it, but I think it's, it's, it's good for people to know that a mediator doesn't direct or control what the final outcome is. Right,

Elliot Herland: 3:34

Right, right. It's, that's up to the parties. Uh, and I may think it's a fair deal, or I may think it's not, but I'm not paternalistic about it. Uh, and ultimately a judge is gonna review it and decide however they decide in accordance with the law. Uh, so that's, that's what I say at a cocktail party. This is what I do maker

Melissa Gragg: 4:06

Well, and there's a lot of different reasons why somebody would hire a mediator and we've even talked about this is that you're kind of in a, a certain area. And I may be in a different area. We're both mediators, but why would a person or company really need to hire a mediator or would look for somebody like that?

Elliot Herland: 4:27

Well, that's a good question. Uh, I think, you know, I, I liked the phrase mediate, don't litigate, and that's a big reason that, uh, people want to mediate, uh, because they want to avoid the risks of trial and many times, uh, they need the mediator to explain those risks because sometimes attorneys are in a position where if they say things, they might lose their client or they want their client to hear someone else say the same thing to give them the credibility. Sometimes people just want to change their lives. They don't, you know, they don't want to keep the status quo. They, they, they want to go on to the next chapter, which they think might be better. And then some people just want to be done with it. And they want to get out of the work comp system. They, they just want to be done

Melissa Gragg: 5:34

Well. And I think that right now we have a significant issue with the court system in that we're creating a tremendous backlog from the current economic situation, from the pandemic. Um, and other kind of things going on that courts are still operating, but not at any capacity that can get the backlog taken care of. And so we're seeing a lot of people that maybe move into mediation because they can get a resolution quicker than the courts, um,

Elliot Herland: 6:08

Expensive, less expensive.

Melissa Gragg: 6:10

But I think it's also, you know, part of, it's a little bit about control, you know, do you want to be a part of the resolution or do you want somebody to just tell you how you're going to live the rest of your life?

Elliot Herland: 6:23

Right. Right. And then of course there's the court of appeals and then the, the state Supreme court, and that takes a lot of time and expense is probably another reason people want to do mediations.

Melissa Gragg: 6:40

Well, and you have you not only, you know, cause there's a lot of people that have started to do mediations because now it's kind of gaining in popularity. Right. But you've actually been doing mediations for 20 plus years. You've done thousands. And, you know, tell us a little bit about, and you have like a 95 to 98% success rate and your success.

Elliot Herland: 7:10

Sorry. Yeah. The parties have that success rate. That's, that's not mine, that's theirs. I'm just along for the ride and showing them how to get there. But yeah,

Melissa Gragg: 7:22

Yeah. That's what I was going to say is it's really your, your success is in helping them get to the finish line. Right. But what happens in those cases that don't get to the finish line? Are there things that you kind of see, um, that could have been prevented or things to be aware of?

Elliot Herland: 7:43

Oh yeah. You bet. There's people with unrealistic goals that they, they think their case is worth a million dollars, uh, when it's probably less than a hundred thousand dollars, there's, uh, there's arguments between the lawyers as to what the law means. I had a case where both lawyers had a different view of the law and they were strident about their position. Uh, I was the second mediator on the case. They tried to mediate at once. And frankly, when I started that mediation, I didn't know why they were mediating it. Uh, they needed to go to court because they had a matter of law. I even brought them into the same room and asked them to argue why they were right. Hoping that that would create some space for settlement. It, it was awful. They were more right at the end of that conversation. And I said, well, it looks like, and now that case went to the court of appeals and is now going to the Minnesota Supreme court. So, uh, questions of law are pretty tough. Uh, if there's, uh, a surgery or something involved and there isn't alternative insurance, those are tough cases to settle. And then there's the COVID cases. I recently did a series of COVID case settlements. Uh, it actually was six cases, uh, getting, uh, mediated at once because it was one employer, one insurer, not the two attorneys and then, uh, the, all the different employees and they ha it was a mass outbreak in a particular facility. And these, uh, uh, employees were suing, uh, in work comp for COVID. The problem was, is that none of them died. So there wasn't a huge exposure. They, uh, the, uh, company, the employer paid for the medical treatment, which was nominal. Sometimes it was just the test and it was free. They paid for the lost wages when they were quarantined for the 14 days. So ultimately the employer and insurer were offering them$500, including the attorney's fees, right? So the plaintiff's attorney was like, well, I can't settle this case for$500. I need at least$10,000. We don't know what's going to happen. These might be the, the future as best dosas claims. We don't know what's going to happen with their lungs and their other organs, uh, how COVID is going to affect them. Long-term occupational diseases are a lot different than say orthopedic injuries, where you have a better idea of what the long-term effect is going to be. So though those cases, not a single one settled there in that two to 4%, that didn't settle and they shouldn't have settled because both sides were right. Uh, it was very speculative and there was, it was very hard to put a value on those cases. And I suppose it's the same in family law. There's sometimes issues that make it impossible for people to resolve their cases, especially if there's mental illness involved, that kind of thing.

Melissa Gragg: 11:30

Well, and I think that, you know, there are times when in mediation that we can get 75% of the issues solved or, you know, a reasonable solution, a reasonable agreement on the issues. And, you know, a lot of times I think success also is can we eliminate, you know, how many issues can we eliminate taking to court? And then you're just up against one or two, and those are a little bit, you know, that will be a lot a different cost structure if you're taking two things to court, as opposed to 20 things or something like that. So I think in that way, mediation helps, but mediation, isn't always the cheapest option because the parties are in control. And so if they continue to, you know, have disagreements on smaller things, then you could continue to have more mediation meetings and more, you know, time, um, kind of dealing with that. But you also have such a good, you know, kind of maybe it's just con customer happiness or something like that. But what do you think makes a successful mediation? Like, are there certain particular clients that do better? Are there certain mediation skills that maybe the mediator has? Or what do you think are some central themes that make it a success?

Elliot Herland: 13:08

Everybody has to be prepared. And that goes, I mean, that goes in a whole lot of different directions, uh, as far as being familiar with the case, making sure the mediator is familiar with the case, uh, knowing who you're dealing with. Now, a lot of my clients, of course, all of my clients for that matter are our attorneys. And I've known them since I've been doing this since 1997. Uh, I know most of them and they know me. Uh, if I run into an attorney that I don't know, well, I look at all their social media, I Google them and, uh, I will call them up and I will talk to them. Uh, let them know what my style is, see what they're comfortable with, uh, see what common interests. I also researched their clients. I look on social media to find out, is there something that I have in common that I can use to build rapport? Like I played the bass guitar. And if I find someone who also is a musician, I'm hitting on that. If they're into sports, I will talk about sports. I will try to, to get people to relax. And so that their notes so focused on the emotion of it, because mediation for participants and even attorneys can be a very emotional experience. So I, them to actually enjoy the mediation and I want them to like me and trust me, because if they don't, they're not going to want to follow along.

Melissa Gragg: 15:04

Yeah. And I think some of that building rapport is important, you know, and having a basis, you know, cause a lot of people don't do any research at the beginning and then the clients come in and they're like, okay, solve my problems. And you're like, but do we have all the information? Do we have the background? Do we have the documents? Like what are we looking here? And, and so it's a lot on a mediator's plate.

Elliot Herland: 15:31

I've got lists. I get lists checklists about, about what I need from them, what letter I want to send, uh, what are the issues that I'm going to come across so that I don't miss any of the issues. I used to be able to keep it all in my head, but now I'm 62. So I wrote it all down.

Melissa Gragg: 15:55

Well, but I think that that is helpful because most of my clients also, I mean, when we're doing evaluation, like I need a set of documents before we can even get started. And I think that that puts some of the onus back on the clients. And that's how I think you can make a mediation more efficient is if you don't expect that everybody else is prepared, but you didn't prepare, you know, as the client or the attorney or whatever.

Elliot Herland: 16:23

Right. Right. So preparation is important. I think a mediator needs to know their place and what I don't want to be as the smartest person in the room, but I want to be the smartest person in the room, but I don't want to appear that way. I want the attorney to shine. I want that attorney to, uh, be the smartest person. And I want their client to be so impressed with their attorney and how much they know and how well they handle the situation. Uh, because then that attorney is going to want to use me again. I don't want to sound smarter than the attorney. I don't want to replace them in the attorney, client relationship. So that's important. But then there's that thing where you have to be clever, not clever. You have to be creative. You don't want to be clever. Right? You don't want to be cute. Um, you want to help people think of their own ideas, even though it was your idea. It's a, it's a very delicate balance. It's a tight rope that you walk, uh, as a mediator.

Melissa Gragg: 17:45

Well, and we do a lot of co mediation. So we'll work with attorneys and they'll do a lot of the other parts of the mediation and we'll come in and do the financial piece. And I think that, you know, there's a lot of times where I'll do a trial, I'll do a run-through right of how we're going to present the valuation or the pension analysis or the Tracey and or whatever. If I'm hired by like a couple and I'll walk the other mediator, uh, or if they have attorneys already, but they're still trying to mediate part of the process. Um, because I want them to be, I want us to be the team. I want us to both seem like this. And a lot of times the finances, like nobody totally understands the finances. And so the more I can get you on the same page. And then I can say, Hey, you might not know all of this, but if you could speak up about this part, you know, this is, uh, a valuation issue wrapped around a legal issue. Like let's you handle the legal issue. I'll talk about the valuation issue. And then to me, we look like a team that's supporting the clients and it doesn't look like I'm the smartest one or you're the smartest one. So I, I completely agree that that is how we kind of have to conduct things and then planting the idea in their head is also brilliant.

Elliot Herland: 19:10

And the other thing is injecting doubt, making them feel the risk and knowing, well, if I don't settle, what am I looking at? Winning a trial? Because like for a worker's comp a judge, doesn't say, okay, well you get this lump sum to settle your case. No, it's going to be a to date type of thing. So rather than a hundred thousand dollars, they might go to court and get$10,000 or they might get nothing. And you have to inject the doubt without sounding like you're representing the other side. You know, that appearance of neutrality uh, has to be there, but you have to do it in a, you know, inject that doubt in a way that gets them to understand what position they're in and the risks that they're taking. The other thing is that a mediator needs to talk less and listen more because you'll learn a lot in the listening and you have to also feel comfortable with silence because silence sometimes is extremely helpful, extremely powerful. You also have to be optimistic. I always tell people about the success other mediations have had that gets them to buy into the idea. Well, I don't want to be in that 2%. I don't want to be in, you know, I want to be in the 98% column. And, and, and then the last thing a meatier, well, not the last bank, the thing, but the last thing I want to talk about is being mindful. I need to be aware of the situation. Of course, you read body language, uh, like with online, you're seeing people from the waist up and then they might be wearing jeans and socks from the waist down, right? Uh, you can't see the body language, but you can, uh, see their faces when you're in person. You're seeing the entire body language, but body language alone, you need to also hear their tone and the words they choose, because that tells you a lot about how they're, what's going on inside, because you need to deal with what's going inside. Uh, not only the parties, but the attorneys as well. You want people to be comfortable just enough and enjoy, you know, help them not get frustrated. Uh, and,

Melissa Gragg: 22:12

And I think there's, I mean, you've said so much. I think one of the things that I really like is the silence. People are very uncomfortable with silence, but a lot of our role as a mediator is to get people to talk so that we can understand what the Bay, you know, like most of the time when there's a communication issue, it could be because we're making assumptions of what the other party thinks. Then we're making judgements based on those assumptions. And then we're going at trying to fix it based on those false assumptions that create the judgements that come up to here. And the reality is, you know, a lot of times I'll be like, okay, I understand that you think that this is what that person is saying, but let's just clarify it. Let's first ask some clarifying. Cause it does, everything does get emotional, you know? And so I'm like, okay, in that emotion, let's clarify. So that we're not making assumptions about what the other person is thinking. Right.

Elliot Herland: 23:12

Yeah. And you know, that reminds me of something else, implicit bias. Uh, it's very important for the mediator, not to judge people. If someone comes in and they have tattoos on their face and they have a lot of piercings and they have a sleeve of tattoos, you got to avoid making judgements about that. Uh, same with race, same with sex. You have to put aside all of implicit biases, but you also have to remember that these people have implicit biases too. Uh, for instance, injured workers tend to believe that the employer and the insurance company is out to get them. And the employer and insurance company thinks that the employee is lying, that they're manipulating the system that they're acting. Uh, and, and that they're just trying to take advantage of and play the system. So you gotta be mindful to leave alone those implicit biases that you naturally have as a human being, and also understand that they are human beings that have implicit biases that need to be kept in mind.

Melissa Gragg: 24:34

Well, and I think that that kind of leads into cause I completely agree, you know, even, um, even gender, you know, I mean, you're going to relate to people that are like you, that's just kind of how it works. But I also think that one of the things that you said that I like about mediation is that there are certain things that are black and white, right? And so, but when you say them, then it's all, it's on one party's favor or the other, and in a mediation you can just kind of be like, listen, these are the black and white issues and a judge is going to do a, B or C. Um, and I think that, that then, you know, if you say that in a litigation context, it's going to be like, well, you tried to find the information that supported that position. And a lot of times it's like, no, there's certain things that are gray, right. And there's certain things that are black and white. So if we can eliminate some of the black and white issues and say, you know, no judge is gonna do that, right. It's not going to happen. So now where do we go? And then the gray issues, I think you just have to, that's where you're starting to kind of try to come together because there is no right or wrong in that, you know, in the court, just like you said about the legal issue, a court's going to have to decide legally what that case meant or what that precedent was set before and things like that.

Elliot Herland: 26:02

Exactly. Um, people also have to understand with regard to work comp, what are the limits of the compensation? For instance, they have to sometimes especially construction workers, they have fantastic fringe benefits. That's not covered. You're never going to get paid for losing pension contributions or health insurance for the family. They, they, they will suffer a lot of losses that won't be compensated. The law doesn't make them whole same with, uh, family law. You're not going to get everything that you're thinking you're entitled to. Well, he or she cheated on me, so I should get everything and they get nothing. They should be punished. Uh, and you, you need to help the attorneys disabuse these people of these types of ideas. Um, you, you, you sometimes have people say, well, this is what I made in the past 18 years. I have 18 years left. So I should get paid for 18 years of future work. Well, the L there, you know, that makes perfect sense. Absolutely. And you validate how they feel, and then you give them the bad news, but that, isn't how the law works. There's limits to the benefits. This is an insurance policy. So there's only so many weeks of benefits that you get. And then it ends

Melissa Gragg: 27:35

Well. And we get a lot of parties that, um, talk to other people. And so there'll be like, well, I went through this and I got something huge. And so then it's like, well, you know, just like the, a spouse cheating on each other, it's, it's a hard, um, issue to say, you know, if you're in a no fault state, the courts don't care. That's like what? The courts don't care. You know? Well, my friend, she got a settlement of a 75, 25 split of the assets because he had been cheating for years. And I was like, Hmm, that's what that person is telling you. But I'm saying that that is, they probably settled out of court to get to that space. Yeah.

Elliot Herland: 28:23

Yeah. Every case is different. Of course now with COVID there's fewer bar room discussions about the value of the case. Oh yeah. You know, I got hurt or my friend got hurt and he got$200,000, which may or may not be true. Right. Uh, and then this person's case might be worth$50,000, but now in their mind, they think, well, I should get 200,000 because that person got 200,000.

Melissa Gragg: 28:55

Well, and if you think about it, you know, when you get lawyers and you're fighting against, you know, a company or an insurance company or anything like that, those lawyers are there to like vehemently defend you and, and, and boost you up and say, okay, we're going to get so much and we're going to do this. And I don't know how much we're going to get by. It's going to be great. You know? And whereas as mediators, we're kind of coming in and saying, okay, I see your point. I see your point. Let's look at what the courts are going to do. And then let's look at what the limits on the insurance could be, and then say, okay, now, where do we go from there? And I think that it's really different expectations that were set. There were expectations were established by the attorneys, and then the expectations are different when you get to mediation.

Elliot Herland: 29:47

Well, and the way I do that is I don't tell them what the court is going to do. I asked the attorney will, what do you think the court that I do? And what do you think your opposing counsel? And I might call them by name because I'm familiar enough. What do you think Bill's going to do? What is he going to argue? What is Gwen going to argue, uh, about this particular position? How much do you think they're going to be willing to settle for way to find out where the other person's bottom line might be? Because, you know, if it wasn't for clients, most cases would settle. The attorneys, know what the case is worth. They're very experienced in evaluating a case, but they also have the client's ideas, their concerns and considerations.

Melissa Gragg: 30:52

Yeah. It's a, it's an interesting area. And a lot of times I'll also ask them, like, or I'll tell them here is some of the questions that somebody is going to ask me in court about the value. So I know that you're saying, okay, COVID just remove COVID because, you know, we have cases that companies have been phenomenally successful during COVID. And then we have cases where they haven't been as successful, but they're like, Oh, just ignore it. We'll just ignore it. And I'm like, okay, well, here's the questions I'm going to be asked in court if we just ignore anything and they'll be like, Oh, okay. So it's not really the answers. It's kind of flipping around and saying, okay, well, here's what somebody could say. And, and how do we walk down this? But you kind of have a process. And so can you kind of walk us through your typical mediation process or the Harland as I've called it mediation process?

Elliot Herland: 31:58

Oh, I liked that. I liked that. Can I use that? Of course. Uh, so even before the mediation begins, it, the process starts, uh, after the scheduling, you, you send out instructions. I do most things by email. I rarely use paper and envelopes and stamps. Uh, so everything's by email or by phone. I want them to know what I need from them and what they can expect from me. I also want, uh, at the beginning of the pandemic, when people weren't all that familiar with zoom, I would offer to do dress rehearsals so that not only will they become fluid and look great in front of their client, but they can also in turn, teach their client how to join the meeting, uh, because you don't want people getting frustrated about the technology. The other thing is you need to feel that the second attorney, the person that's going to make the counter offer know that you're going to spend about a half hour with this other group of people. Uh, sometimes it's just the attorney and the injured worker. Sometimes it's the attorney and the injured worker and their spouse, or a brother or a best friend, that's there for support. And you know, that can affect confidentiality, but you get people to agree on, on those types of things. Uh, but you'll let that other attorney know, Hey, you know, you can work on some other files for about a half an hour, cause I'll be getting you after I'm done with them first, then we'll spend some time together with your client. Uh, if they have the client there, sometimes they don't. Uh, I think it's important for, uh, the mediation to start on time, which means I need to get there early in person. If I'm early, I'm on time. If I'm on time, I'm late. And if I'm late, I suck. That's not good. Uh, so I wanna, uh, get a feel for the room. I want to make sure I'm all set up and ready to go. I don't want to be setting up in front of people. I don't want to be walking in, uh, or having people sitting in the waiting room of my zoom meeting. Uh, wondering where, where is the guy I want to be there. So that as soon as that in the waiting room button hits, I'm immediately getting him into the main room, explaining what a breakout room is, putting them in their breakout room. I usually name the breakout room by their client's name. Uh, Melissa's room. I'm going to put you in Melissa's room. Okay. While you're in there. It's as if you're in your own room, it's confidential. No one can hear you. Here's what it looks like when I come in the room, here's what it looks like when I come out of the room, uh, here's how you can get ahold of me, push this question button, I'll get a message. I'll come back in just like there was a door. So I make sure that all of that stuff gets explained even before the session starts. And then I get into my introduction. And, uh, again, that's something I talk about with the attorneys separately, uh, ahead of time so that I find out what they want. Cause it's their mediation. It's not mine. I can listen to what they want. And then I can make suggestions as to why I do certain things. And if they still don't want me to do it that way, then I won't. Even if I think that's the most effective thing, but I start off the mediation by asking, uh, can I call you Melissa? Is that okay? You can call me Elliot. I want them to know it's informal. I ask them, Hey, how did you sleep last night? Were you nervous? Cause he got to know you don't need to be nervous. Uh, I am, uh, I'm not a judge. I'm not here to make a decision, not here to weigh the evidence. I'm also not your lawyer. You have a great lawyer, one of the best. They're going to answer all your questions. They're the ones that are going to give you the legal advice. And that goes for the, in the other room too. I'm not doing any of that stuff. My role as a mediator is much different. Now having said that I am a lawyer and I know about confidentiality. I'm also an Eagle scout. I, you know, I'm, I'm trustworthy. Uh, and I could do the whole 12 steps of the law. If you wanted me to, I try to then bring in that stuff that I know. I let them know that their attorney has really prepared me. Even if that attorney gave me one sheet of paper, I said, they gave me all kinds of information that I don't know everything that they know, but I know enough to be helpful. Then I talk about, uh, my experience as a mediator. I let them know that it's their mediation and that we, the attorney and I want them to interrupt at any point because it's their mediation. And I keep stressing that it's their mediation. Uh, and, and we want them to have their questions answered or if they feel uncomfortable about something, uh, I want, we want to know because they need to know what's going on because ultimately they're the ones that make the decision. They can get all the advice in the world, but if they don't understand or they feel uncomfortable or they feel like people are colluding against them, uh, because they're more interested in getting a win or getting the settlement. Um, then I tell them about the process in that it's a journey, uh, that, you know, you started at a point that's in range, but the other side thinks it's too high. And I want you to know ahead of time when I come back with their counter offer. You're if you didn't know, this was a journey, you'd be insulted. You'd say, what are you kidding me? They think I'm going to settle my case for that. The answer's no, they don't think that at all. That's the beginning of the journey. You do not need to be emotional. In fact, you need to make a clear-headed business decision about what you're going to do. And if you can't separate that emotion from making this clear-headed business decision, it's going to be a problem. And the beauty is you don't have to make that decision without the advice of an extremely intelligent attorney, helping you decide, giving you recommendations about what to do. So we're going to be going back and forth and back and forth until we get to an agreement. If we get to an agreement, that's great. If we don't, if there's an impasse, there are things I can do. Uh, and I'll tell you about those things if, and when we need them, but I'm not going to give you a whole lesson. Uh, and, uh, and then I just let them know that when I go from room to room and I'd come back and I'm pushing them, I want them to know I'm not representing the other side. I'm doing what a mediator does. I'm pointing some things out, asking questions. I want them to think about what's going on in the other room. That's valuable information. So when I'm pushing you, as if I'm speaking as if you were the injured worker, if I'm pushing you, I'm not representing the other side, I'm giving you valuable information because the case to get to where you want it to go, which I think is settlement.

Melissa Gragg: 40:46

Right. Well, and I think that in workers' comp cases, I could imagine that the employee is probably the one person that thinks they are not in control. You know, that the insurance company, the employer, the lawyers, the mediator, that everybody is, whereas if you start to bring them and even, I love that you're talking about that. It's a process because you really have to say that this is a negotiation. And if it were that I could come in and say, give me a million dollars. And you say, yes, then absolutely. There's no negotiation process needed, but traditionally you have to go back and forth in order to kind of understand your best case and worst case, you know, and, and what is, is not going to be good about your case going forward and be mindful of. But I think that those are really important that the only way to really get it done is to give them back the control and to make them understand that, yes, there's a lot of powerful people in this room, but you're still in control of what you think is reasonable for you.

Elliot Herland: 41:57

Right? Right. And knowing who you're dealing with and asking the attorney will tell me a little bit more about your client. Are they a cut to the chase type of person, or are they the ones that need the dance of 10,000 veils, uh, or death by 10,000 cuts? Uh, depends on what's going on, but that is important information for me as the mediator, you know, because if I'm taking them along the scenic route, uh, they might not appreciate the scenery. Uh, if they want to take the freeway and they want to get there quick, they don't want to spend a lot of time. They want to get there. And sometimes there's a difference and you have to explain to the other side, look, if we're going to get this done, we're going to have to take it step by step. We're not going to be able to go fast, uh, because there's an imbalance of understanding. Like you pointed out, the injured worker has the least experience in mediation, so they have the most to learn.

Melissa Gragg: 43:07

Hmm. And you, and, and people, I think also process information different and they process decision-making different, you know? Um, and a lot of times what, you know, if we're in litigation, you know, I'm looking at the other party and saying, listen, your spouse makes decisions very quick. Your spouse talks a lot when under pressure, like why don't we get information from them? Why don't we allow them to make quick decisions, but you make decisions slow. So we need to make sure you're prepared, you know, all of it going in, you know, we do a lot of practice runs when we're doing this kind of in a negotiate, you know, like a lot of times we'll have litigations that kind of just pop into a pseudo mediation. Right. And so we're, we're kind of weighing all of that. And we know the parties a little bit more because we've been involved with them. We know their idiosyncrasies. I think it's a lot harder when you're coming in fresh and everybody wants to get it done in a few hours. And you haven't built the rapport. You haven't built the trust. You have that one employee, that's the first time everybody else in the room has gone through this at least probably one time. Right. Yeah. And so they're like, okay, okay. We know how to, to come up with a couple, couple of buckets and it's the employee, that's kind of like, Whoa, this is a lot, this is a hold on. You know, so, and I think that's true in most mediations where you have different personalities, you're just going to have, um, kind of, uh, a situation. But, and you, you talk about that a little bit. When you run into a lot of different personalities, like how do you deal with some of those difficult ones? So you've presented the whole kind of process, or you presented kind of what to expect, but now you kind of start to see the personalities emerge. You know,

Elliot Herland: 45:15

I took good notes, so more people are going and I get a sense of where people are going and how they feel, um, what they're needing, but you're right. Um, and it's always important at the end to put all of the agreements in writing so that the person says, no, wait a minute. That, isn't what I said, because you want to get that out there so that if there's like with a deposition, you need to make those corrections now not when you're sitting in the courtroom and say, Oh, that, isn't what I meant. Uh, you need to make sure that people have an agreement in terms, but you're right. There are difficult people that you deal with. And especially

Melissa Gragg: 46:06

What is the most difficult personality you think in a mediation

Elliot Herland: 46:13

Attorneys that don't like each other? Okay. Yeah. When attorneys don't like each other, uh, and there's ego trips going on, uh, getting them to separate from their emotions. It can be challenging. You're dealing with angry people. If people aren't being civil, uh, if they, uh, are inexperienced, if they're not prepared, uh, if they're unrealistic, if they're scared, if they lack client control, uh, if they don't understand the platform that you're using zoom or how to behave in person, uh, if there's mental illness involved and, and that includes the attorneys. I mean, there are attorneys that have mental illnesses, uh, and it's very important not to judge a person or make that person feel judged about their mental illness. You don't want people to feel strange. So lowering the temperature is important. Uh, you want, if someone is, uh, getting loud, uh, you, you, you, you talk softer. Uh, you do not interrupt. Yeah. Let that storm blow through you, validate their opinions without necessarily agreeing with them. And then you reframe it. Uh, I always ask people about, uh, the relationship between the parties. I already know the relationship between the attorneys in most cases. And I, I used to do a lot of joint sessions, but I found more and more that keeping people in separate rooms, I can hear the angry words about the malingering injured worker and the evil employer. Who's, you know, been torturing me with counting screws for the past two months or putting me in a room and not having anything they're torturing me and I can hear them and they can feel like they've had their day in court. And then I can filter that and I can, uh, reframe it and go into the other room, pass along the same information, but make it more palatable so that it reduces that, um, that feeling so dealing with, uh, client control, that's you, you want to ask the attorneys ahead of time if they need any assistance with client control, because you don't want to get in between that relationship. You don't want to, uh, do more than what you should do, given the circumstances, dealing with unrealistic things again, that that has to do with client control. Um, civility and respect though is extremely important. And that includes me, the mediator. I need to be respectful to every single person, even though the other side thinks that you're, the client is an awful person or an awful company, I need to make everybody feel like I respect them. The other side might not. And they might know that they don't, but I do. I don't think you're a liar, even though I might think they're a liar. I don't want them to feel that way. I want them to trust me. So I need to trust them. That's the only way I'm going to get trust them, to feel trusted.

Melissa Gragg: 50:20

Well, and I think you've give, you've kind of shown a couple of different ways because you know, we'll mediation with both parties in the same. I mean, I call it a room because it's a lot of zoom right now, but, you know, with, with everybody on the screen, um, and then if things get kind of heated or something like that, we could go to breakout rooms and things like that. Um, I clearly see that in the types of mediations you're doing, having them and caucus all the time is smart because those, I guess, you know, for a lot of the people, it is most important to that employee. Right. And so they're, if they hear those like cutting, whereas a lot of the other parties that are involved, not that this is just another case, but they've kind of, you know, like I've gone through this. Okay, let's go through. Um, but th they, they kind of bring it back around and, and say things that they might not traditionally say or could hurt. And I think once you kind of get a real dagger, like a real hurtful dagger, um, you're going to continue to remember that, and you're going to maybe stick harder on your position. And if you wouldn't have heard that, and I agree, like you can S I can say that F and B, and you can go in and say, they're, they're not feeling really comfortable with you right now. You get the same vibe or you get the same, you know, that they're angry and we need to do something. But sometimes those really mean words can stick in there. Not that anybody, but they affect the negotiation is the hard part.

Elliot Herland: 52:11

Sure. And sometimes one side doesn't understand the core hurts that someone has, but sometimes they do, like for instance, in a mediation where the injured worker is the son-in-law of the employer. Whoa. Now you've got some really interesting things going on, uh, feelings of betrayal on both sides. Sometimes the employer thinks the insurer is messing with their employee. Now I've got a situation going on in that room. Uh, and it's like the employer and the employee ganging up on this insure. That gets interesting.

Melissa Gragg: 53:03

Well, and another thing that you brought up was kind of, and it's, I think it's combined mental health, implicit bias, and the fact that we're in a pandemic that a lot of people are talking about, you know, you, you, as a mediator also have to check your own, you know, we don't all have great days, right. But if you're going into immediate, like what are you bringing into it? And, you know, I know that people don't want to cancel things or reschedule things, but I think that one lesson we all hopefully learned this year was that we need to be flexible. And we need to understand that these things will happen. And how does our mental status affect the mediation? How do the parties mental status? Because even if you didn't have any mental illness issues going into this pandemic that could have changed, you know? And so we have to be mindful that we're all kind of emotionally volatile, um, and you know, trying to get through, right.

Elliot Herland: 54:10

And the mediator comes to this as a professional. It's kind of like when I'm doing a gig with my band, although we haven't done one in awhile, uh, once you're up on the stage, everything else has to go away because you need to focus. Otherwise you're going to hit the wrong strings and it's not going to sound good. And that's the same thing with mediation. If you come in with a bad attitude or you're feeling a little anxious about whether or not this case is going to work, right. You have to be open, you have to be optimistic and you have to be professional. So you have to bring your best self there and push all that other stuff to the side.

Melissa Gragg: 54:53

Hmm. Yeah. It's and it's not, I think it's not always easy, but I also think, you know, there's a lot that is similar between litigation and mediation. You know, we don't know what to expect going into it. Um, but I think in mediation, we know that we can use some tools to help communicate as opposed to sometimes in litigation, we're using tools to push each other further apart, um, to get our side the best side, you know, like the judge, listen to what I'm saying. Um, but the, the reality is in both situations, the mediator really has to come, not only prepared, uh, and mentally ready, but also ready to Zig and zag because we don't, I, I can't predict, you know, half the time you might think something's going to go a certain way. And you're like, well, that took a turn and you have to be as a mediator because everybody else is probably going to be like slower on the turn. And you have to be kind of at the beginning and say, okay, we move this way now what, Oh, we shifted this way now, what?

Elliot Herland: 56:10

Right. And especially if you're gonna, uh, make a mediator's proposal, you really need to know where people are at and you need to do the math because if you just toss out a number, Oh, here's the point I'm going to use the mid point. Well, guess what? The mid point month might not make sense. It might be closer to where the insurer is. It might be closer to where the employee is, and you need to be able to explain a mediator's proposal to both sides and get commitment from both sides that they'll make the they'll recommend it. And they'll use the power of, well, the mediator said this, but if you don't get the attorneys to buy in and you need to sell it to get them to agree, to sell it

Melissa Gragg: 57:04

Well. And, and let's talk a little bit more about the, the mediator's proposal and different mediation approaches used by, um, experienced mediators, because from a financial perspective, when we negotiate and when I'm involved, I'm trying to negotiate and present an idea or a concept or a way to go based on factual data based on the actual numbers. Because in my mind, anybody can kind of, we call it, split the baby. Anybody can do an average, right? You're at a million, I'm at 500,000, let's go in the middle at 750,000 in my mind, sometimes it's the financials don't support that we got to look at. What does the financial information support, but you're talking more about the mediator's proposal. And I don't think people understand this concept. So let's talk a little bit more about it.

Elliot Herland: 58:01

Sure. Well, the way I do mediation, uh, from the beginning until there's an impasse is to be facilitative. What I mean by facilitative is to, as we've been talking, carry on that discussion, uh, between the two rooms or three rooms or however many rooms and knowing, you know, who the decision maker is in each room, uh, and then making sure that you don't become evaluative and telling people, well, this is what you should do. You know, uh, you, you have to time that, right? So there are some mediators in some attorneys that want the mediator to be evaluative and tell people, well, here's what you should do next. Here's where, you know, here is where you should end up. It has to be timed, right? If you do it too early one, you're not going to know where people are willing to go at least have a better idea. And, uh, two, you haven't them there yet. And then you have to word it, right? You have to make sure that you don't slight anybody's case. You talk about the range and where, and you want to explain. Look, if I put out a number that I know your client is going to accept, I'm not doing you any favor because I know the other side is going to say no. And if I do them a favor, I know you're going to say no. So it's important for me to pick a number or terms that I think both sides are barely willing to accept. It's not what, you know, they came here to get, but it's so close. They're not going to pass it up and take on those risks that you've been putting in their head already. And their attorney has been letting them know, here are the risks.

Melissa Gragg: 1:00:22

And sometimes I think when you've done a lot of mediations and we've done a lot of valuations with in mediation or litigation, we can almost see kind of where we're going to go. Not where we maybe end up. Right. But we probably know the path. We can see the path that's been cleared a little bit, but they haven't. And we do kind of have to walk along. And, and even at some point when you get to some impasses say, okay, well, what, what would you think? You know, you have the issue with this, whatever, uh, and you have a problem with it. What would you do to fix it? And they're like, well, I, well, I don't w you know, and, and I think that that is a little now from a financial standpoint, you know, we're, we do kind of know where things will end up, but we do know the support. And I don't really tell them this at the beginning, but I'll say it at some point, like if you guys are both moderately unhappy, I probably did the right valuation. Like, cause if either one of you is jumping for joy, um, then your expectations were different, right. Or there, you know, cause most business owners think their business is worth far more than it actually is worth. Um, so

Elliot Herland: 1:01:43

Split it then, then the valuation is, Oh, my company is only worth this much. So I'm only gonna give my spouse X dollars,

Melissa Gragg: 1:01:53

Elliot. If you're getting divorced, the business is worth nothing.

Elliot Herland: 1:01:56

Right. Right. Books, I pay taxes cause I don't make anything.

Melissa Gragg: 1:02:03

Absolutely. And I think that that's, that's a big piece of it is trying to educate them on the reality. So I'm not, I'm, I'm using factual information to come up with that reality. But I think that reality check and that's kind of what you're talking about in mediator's proposal is you can't have the reality check when you walk in the door. Like, I don't even know what we're doing. I don't know. W what do you mean? You know, like you really have to, it is a process and, and time is involved because it takes some time to walk down that path.

Elliot Herland: 1:02:36

And here's the key to mediators proposals. And what I find is the Mo the beauty of it is neither side. Lets the other side, know if they've said yes, they let me know, is it a yes or a no? And then I let both sides know if I get two yeses, we've got a deal. If they say yes and you say, no, they'll know about your answer, but you won't know that they were willing to do it. And the negotiation positions are going to be protected. You're still at where you were at at the point of impasse. So, uh, those answers come to me confidentially. And I don't, if someone tells me, yes, I don't go to the other room and say, Hey, I'm ready for your answer because that's pretty much telling them that the other side just said, yes,

Melissa Gragg: 1:03:36

Oh, this is huge. This is, uh, I think this is the, the golden nugget of this entire thing. This is like, I, that, I didn't even think about that, but you're so right. You know, if somebody says yes and you're like, well, they already agreed to it and you're not agreeing to it, but Oh, that, I love that. Can you tell me a little bit more about like a case where that has been helpful or like how that is in motion? Because I just want you to repeat it because I think that it is so powerful for mediators. This is an interesting nuance.

Elliot Herland: 1:04:16

Okay. Uh, and I got to tell you a mediators proposals work out most of the time if I've been listening, if I have a good sense of where people are willing to go. And when usually I do the mediator's proposal with just the attorneys, if the clients are comfortable with me meeting with just the attorneys, then I can just meet with the attorneys and say, okay, uh, let's talk about this case academically. And you know, here, I've written down all the terms. We have all these agreements. And now the only thing left is the money. And you're here at a hundred thousand and you're here at 50,000 and all right, midpoint is 75 and I might go there. I may have moved them to the hundred and the 50 so that I could get that 75 in the middle because the mid point is oftentimes the easiest thing to sell because I'm asking both sides to move to the, that point. But sometimes the mid point is not where it belongs. Sometimes the math doesn't support the mid point. And if I suggested one side is going to say, well, you're just doing the easy thing, the math, why should I tell my client to pay this amount? Why should I tell my client to accept this amount? When the math doesn't support it, I'm not just going to do it because that's the mid point. So it's very important to craft a good mediator's proposal and explain the process. Now, most of the attorneys that I work with already know how the mediator's proposal works. Uh, sometimes they want me to explain it to their clients because what I do is I craft the meter's proposal. I talked about the attorneys, I get a surety says that they're at least willing to recommend it, or at least not say, I advise you to say no,

Speaker 3: 1:06:30

Uh,

Elliot Herland: 1:06:30

At least be neutral about it, love it. You know, this is your case. It's up to you. So then I go into the room. Usually I go with the employee first and, uh, and I tell them the same thing that I told the attorneys and, uh, explained the terms, why I pick this number, why I'm not doing them a favor or the other side of favors so that we can hopefully increase the opportunity for settlement, because that's what they want. They want to settle this case most of the time. Uh, and then I go into the other room and I say the same thing. And I ask them, now, take your time, talk about it. Uh, you know, if you need to think about it overnight, if you want to talk about it with your spouse who isn't there or, or hopefully the, the, the real decision-makers there, the claims adjuster is available. The spouse that really makes all the decisions is there. So, uh, and then I, I say, now I'm going to wait for your answer. Now, if one side says, no, I go to the other side. I don't want them to waste their time. I don't want them to tell me that. They said yes, unless they're, unless they want me to know, I just go in and I say, look, the other side said, no. So, you know, you don't even have to tell me that you were willing to do it. Sometimes they w they I'll get a yes. And then the other side will say no, and then I'll ask them, well, what was it that you didn't like? And what is it that you're willing to do so that I can go back to the other side and try to salvage the deal. Anyway. Now, most of the time, the mediator's proposal will give me two yeses and I come into each room and I say, good deal. We got the deal. No, that wasn't what they came for. But when I come in, they're happy that they got the deal. You know what, they're happy. You know why people don't actually come to mediation to get what they want, because what they really want is to be done. They want to be done with it. So getting enough of what they wanted is a win, you know, some people talk about lose, lose, and everybody hates the mediator. And sometimes they do, but it's, I think a settlement is always a win-win because they really got out of a litigation and a trial. It's a win-win.

Melissa Gragg: 1:09:09

Yeah, no, we, we just, um, dealt with kind of, uh, an outside negotiation where we were dealing with, uh, a party that was kind of negotiating from a position of no power, not li no legal precedent, no. You know, not financial, everything. And they just wanted something different. Right. And, you know, it was interesting to me cause I was like, they have no, legally, they don't have a position financially. They don't have a position. Um, but the other party was like, you know, I haven't been able to sleep. I haven't been able to focus on my business. I haven't been able to do the things, you know, this is keeping me awake at night. And I sometimes forget, you know, that we live in a, you know, like when you're a mediator or doing litigation, I live in conflict every day. Like I see crazy, uh, emotional conflict fighting, crying, or being happy. Like it's all of the spectrum every day. But a lot of people don't and they don't want that emotional roller coaster. They don't want that financial rollercoaster. And so it was interesting to me because we kind of had to back up and say, okay, so you want this done more than it matters about the money, right? Because everybody thinks it's always about the money. No, they wanted it done. They wanted it done that day. And they wanted to start to focus on all the other things that were important in their life. And so I think that in that respect, yes, financially we could see that we were in the position of power and that we really didn't have to give anything. Right. But in listening, in focusing on the client and understanding their position, we, we understood that it was more important to have, to, to salvage the relationship, to salvage the whole, you know, to be done with the emotional illness of it and to start moving forward. And that's powerful because then that's where things will change. You know? So that in that meeting and that day long, we actually shifted. We all, you know, cause they were each side at a team, right. We all kind of had to shift and say, okay, now we see what is important to you. So now let's go forward. And at the end, you know, we did give up a lot. Right. And I was, I was talking yesterday about this and I was like, and it would appear that that wasn't a very successful mediation, but the reality is it was absolutely successful because there was a resolution at the end.

Elliot Herland: 1:11:58

That's exactly right. People want to move on. They want to get on with their lives. Builders want to go back building things and other people want to go and do whatever it is they're going to do next. And maybe they go back to the craft. Yeah. Uh, maybe they don't, maybe they go to school and become an estimator or a project manager or something within their physical limitations. So getting out of this, what we call work comp hell is a value. Also avoiding the costs and risks of litigation. You know, I know you're paying$5,000 more than what you wanted, but are you willing to risk having to pay even more and having this go on for four years, do you, I know you wanted$5,000 more than what you're getting, but isn't it close enough? Are you willing to risk$65,000? Just because you didn't get 70, you know, do you play pool tabs cards, right. It's a gamble. It's all about trading risks and rewards and what are you willing to risk? And some people are very risk averse and some people can handle more risk.

Melissa Gragg: 1:13:32

Well, and if you, and if you have a position, you know, that, that you think is supportable. Cause a lot of times, you know, we're saying, if you want to settle, even if you're in litigation, mediation, arbitration, if you want to settle, maybe not arbitration, um, then you have to be willing to move off of your position or get better than what you would get in court. Now, the problem is everybody thinks that there's a crystal ball or an eight ball that I assume, right.

Elliot Herland: 1:14:10

Point two. Yes.

Melissa Gragg: 1:14:13

So they think that we know what the court is really going to say. And we don't,

Elliot Herland: 1:14:17

No, I don't bring this to in-person mediations, but I do, but I do use it. Uh, sometimes if it works, you know, you have to know your audience, uh, as far as comedy goes, but I will sometimes say, look, we don't have the magic eight ball telling us what the judge is going to say.

Melissa Gragg: 1:14:39

Right, right. And

Elliot Herland: 1:14:43

Take the ball and see what comes up

Melissa Gragg: 1:14:45

Right now. When I was younger, I did kind of live by the eight ball. So, you know, there's that,

Elliot Herland: 1:14:52

Well, I want to find yourself behind the eight ball. Right.

Melissa Gragg: 1:14:57

So a couple more questions and I know we've gone quite a long time, so we'll stop. But I think the, um, a couple of things that have changed kind of with the pandemic and COVID and things is that, you know, I know you provide mediation services online or via telephone, or in-person obviously socially distanced. Um, but which one do you think works best in your opinion?

Elliot Herland: 1:15:24

Well, I think, uh, telephones and emails and texts, uh, are the least effective, although they can work, you know, you can make it happen. Uh, personally, prior to COVID I only did in-person mediation never did online mediation. I didn't even know about doing, I mean, I heard about it, but I wasn't really interested because I was used to doing everything in person. And there are some advantages for the mediator to be doing it in person, because you can see people, you can feel people, uh, and, uh, get a lot more understanding, but now doing it in person and you're wearing a mask and it's so distracting because when you're talking, it'll sometimes touch your lips when you're breathing in and it's very distracting, you know, then you get a new mask and you figure it out. Uh, but people are nervous, rightly so about COVID and the dangers of it. So there's been fewer in person mediations, and there are some advantages to doing these zoom mediations, online mediations. I like to use zoom. Uh, there are other platforms, uh, and what's really nice about it. People are in a comfortable place, for instance, the injured worker isn't in the hostile environment of the other lawyer's office. Right? And same for, for those contractors or employers that actually show up most of the time they don't insurance adjusters, don't, they're available by phone. And sometimes I, I mean, I would like them to see how the sausage is made because then they get a better idea of what it's going to take to settle because, you know, they've reserved it for so much and they want to get it for this much so that they can look really good to the person above them. Uh, anyway, uh, there's a nice thing about this online mediation, uh, because a person is sitting in their own home and they can go and get something to drink and something to eat and they don't have to ask anybody anything. They can use their own restroom. It's very comfortable. It reduces their stress. It reduces it, it enhances the experience. There's also some dangers with it though. You don't know who else is in the room because you only see this, you don't see someone else writing them notes or, or whispering or, uh, or, or there's technical difficulties and there's frustration. Uh, the image freezes, uh, once I got onto the wrong account, edit 45 minutes, the mediation stopped. I was like, what? I just lost everybody cheerful. And so I started doing online mediation when COVID hit, because I was thinking, Oh my gosh, I can't do these in-person mediations anymore. How am I going to earn a living doing mediations? I don't. So I immediately tried out all these different platforms, found out what I was comfortable with. And then I started teaching other people that I, my customers, how to use the platform. Some of them didn't want to, they didn't even have a webcam. They couldn't do it. So we went to the phone or they had me come in and wear a mask. Um, but I'd make mistakes and I would have to try to figure it out. Now there's people like Susan Guthrie. Who's very good at teaching people how to use all of the different tools for online mediation. Uh, and there are many other that will, and there, and there's videos. Uh, zoom puts out very helpful videos about how to use their different functions and enhance the experience. Having those breakout rooms is kind of cool too. Uh, people get fascinated with technology and it it's, it's more fun sometimes, right? Sometimes.

Melissa Gragg: 1:20:34

Well, and I think that online mediation, realistically, because of COVID people were actually willing to do it because before then, you know, one way that we got things done is we all had to show up. We all had to be ready. We all had to know that the goal was to try to get something done that day, that four-hour period, six hours, eight hours, whatever it was, but it was tiring. It was tiring more for the people that this is our first time going through it. The rest of us are like, Oh, we have trial today. I pack my snacks. I pack my water. I pay, you know, like I'm ready to go. Um, we've also been able to use zoom for online depositions and things like that and, and writing the use the writing tools to write on things. So, I mean, I think in general, people are more willing. This does cut down on costs. You're not paying for five or six professionals to drive to a location, to eat lunch, you know, during the meeting,

Elliot Herland: 1:21:35

That's, that's something I miss. I liked having lunch, especially after a successful mediation, I would take the attorneys out and we'd have a cocktail or we'd have something to eat or both. And that was a form of marketing. Uh, we'd get off the subject and we'd have some fellowship, I guess, is what you'd call it.

Melissa Gragg: 1:22:01

Well, and one thing that I think about online mediation, and I think that people are still struggling, you know, I feel like I'm online every day. And so I have to be prepared or I have to, you know, get dressed up and things like that. But one of the things that I've noticed is that a lot of people that are not doing a lot of just zoom meetings in general, haven't quite mastered their facial expressions. Right. And so a lot of what, you know, where I still see it in mediations. I see. And I will see it, not from just the clients. I will see it from all the parties. The attorneys are probably sometimes the most, um, the most flamboyant about their expressions. You know, somebody will say,

Elliot Herland: 1:22:49

Uh, I I've had attorneys, you know, going like this and they don't realize that we're all seeing them do that. The other thing though, is zoom fatigue. Oh, that's a good one. That's not a good look. I do, because we're not used

Melissa Gragg: 1:23:06

To somebody always watching us. Right. And so we're just doing like, mm Hmm.

Elliot Herland: 1:23:12

Well, and you have to know where the camera is. You don't want them looking up your nose. Right. Uh, you have to look at the camera and I have a, I actually have an arrow pointing at the camera to remind me to look there. Instead of looking over here, making eye contact with you when I'm not making eye contact with you. Cause I have to look there. Um, but

Melissa Gragg: 1:23:35

Trick I use for that is I actually put an, I know other people do this too, but I put the, um, picture like, you know, that we're looking at right under the camera. And so I'm always kind of focused on it and it keeps me, cause you know, we all have multiple screens and I do a ton of zooms where somebody is like looking at their other screen.

Elliot Herland: 1:23:57

Right. We're over here, but they think they're looking at you. Yeah. One other thing though, is zoom fatigue in a, in a room, you know, you can change positions, you can be listening to someone like this. You can look over there and now all of a sudden they're wondering, well, what are you looking at? Are you talking to someone? It creates all sorts of, of uh, unnecessary ideas and the psychology of the mediation changes. But you get tired of looking all the time at a screen and you know, are ready that computer screens tire you out. And if you're constantly looking at a computer all day, uh, you can get pretty cranky. Yeah. Um, and so there is some zoom fatigue that you have to deal with.

Melissa Gragg: 1:24:54

No. And, and I think that that's when we have to be mindful of when people are kind of doing that, you know, like, you know, like, it's just like, can we take a break? You know, I think that that's an important, because it really is. Now we have to be mindful of what happens in this box, you know, and that's what we have. And, but we have to be looking at a lot of different boxes sometimes, you know? So I'm trying to think of, I'm paying attention, I'm listening, but now this person is saying something, Oh, I see the eye roll of the other person. Oh, I see the, you know, it's, it's a fascinating, there's a whole new psychology in some capacity. Um, and I think you've got to practice to do it better. Um, but do you have any other, uh, important tips for utilizing zoom or being prepared for mediation?

Elliot Herland: 1:25:50

Probably know how to use the mute button

Melissa Gragg: 1:25:54

Consistently

Elliot Herland: 1:25:57

And knowing who's in the room and who isn't in the room and when the, uh, you know, I announce when I'm coming in, um, Hey, I'm here. Cause I don't want to hear something I'm not supposed to be hearing. Right. Like, Oh yeah. I can't wait to go on that trip to, uh, the, the Caribbean, it's going to be great. You know, I'm not going to share that confidential information, but it's, it certainly is in my mind. Right. Uh, so anyway, I, uh, and that's just a silly example. Uh, also the attorneys, what what's nice for the attorneys is they can work on other files, uh, especially the defense attorneys. They can work on other files while being at the meet. They don't have to carry all their files on a, on one of those, uh, pushcarts. They've got their whole office there and they can do work on other files while this mediation is going on. So that's another nice thing about being remote. Right. I am a people person though. I like to be with people, uh, and it, it feeds me and my energy and I'm learning how to get that from zoom. But being in contact with people is something I enjoy. So I have a little bit of a bias toward in-person.

Melissa Gragg: 1:27:30

Yeah. Well, and I think going forward, it's going to be just, it's going to be a great option for people to do it either way. Right. You know, I mean then they'll have choices

Elliot Herland: 1:27:42

Online is here to stay.

Melissa Gragg: 1:27:43

Oh yeah, absolutely. Um, one more question, before we talk a little bit about you and your firm is if somebody, um, was considering hiring a mediator, what do you think the questions you would suggest to ask? You know, cause a lot of times they might call a couple of different people or they might, you know, try to see if there's a right fit from, uh, a personality standpoint. But like what do you think some questions they should ask before they decide who to choose?

Elliot Herland: 1:28:16

I think the first question they should ask is what do they want to get out of it? What's their goal? What are they looking to do? What style suits them or their client more importantly. Uh, so they need to figure out what they need before they know what kind of questions they should ask. Now, obviously they should also do some homework, uh, check out the person's website, check out their LinkedIn page, uh, get as much information about what their training is, what their experiences, what their education is. And I'm not saying that it's only attorneys that can do mediation. Uh, I mean on attorneys are, are, can be also very good mediators. Uh, granted there's an implicit bias by attorneys that they want to use attorneys, uh, as mediators. But there are a lot of great mediators that aren't attorneys that they know how to do it and they know the subject matters. So you don't need that JD to be effective. Uh, they should ask what they can expect from if they're coming from me from the mediator, what, what style, uh, alright, I'm a facilitative mediator. And I use this thing called a mediator's proposal sometimes if I need to, uh, um, but you know, this is your make sure that the mediator understands that it's not theirs. It's not their mediation. It belongs to them. I'll never touch the third rail of the attorney, client relationship. I'm not trying to be smarter than they are. Um, in th they're going to want to ask questions in a way and attorneys know how to ask questions. They're going to want to ask questions in a way to get the information they're looking for, not the sales pitch. Cause every mediator will tell you how great they are because they want your business. Right. Um, and then they should ask, well, what do you mediate or expect from me? You know, what do I need to give you? And you want to hear that mediator say, well, you know, uh, I don't need all the medical records. A medical summary would be good. I don't need the entire transcript of the deposition. A summary of the deposition would be fine. Uh, I think that, uh, the vocational experts and the independent medical exam reports are important for me to know most important for me to know is how do you see the strengths and weaknesses of your case? I'd really like to know your honest, confidential opinion of what your strengths are and what your weaknesses are, because that's going to help me.

Speaker 4: 1:31:27

So

Elliot Herland: 1:31:27

Those are the types of questions they should ask, and they should also ask their colleagues, what's this person's reputation. Are they pushy? Are they a war? Storyish do they think they're clever? Like I used to think I was took some time, you know, I liked being clever. Yeah. But it's better to get to the point and only be so entertaining. You don't want to be the smartest and you don't want to be the funniest.

Melissa Gragg: 1:32:09

Right. And I think it's our natural proclivity to, to shift the focus back on us. And so it's normal human reaction or normal human, um, interaction is to say, Hey, look at me, look at me. And then the mediator needs to be like, let's look at you, let's you talk, you know? And, and that's hard. You kind of have to get used to it because you want to sh you want to share all your stories and you want to talk to, um, but that's not really your platform. And, and even when I refer attorneys for different situations, I'll be like, well, are you looking for like a shark? Are you looking for somebody who gets things settled? Are you look, you know, like it sometimes is a personality fit. Um, if you know, going into it that somebody is going to your, client's going to be turned off by a more calm person or a more like boisterous person, then that might not be the right fit. Um, so that's part of it. But in general, I think those are great questions and, and, and checking around, you know, cause again, I don't think that, I think going back to our first, uh, kind of the beginning, I don't think that I'm the key to anybody's success in mediation, or even as an expert witness, like I'm just providing information and knowledge and experience to this situation, you know, um, you are successful at resolving it. You guys did a great job, you know, you're successful on a case. Lawyers did a great job, but I'm just kind of like you, like, I'm just here to facilitate. I'm sure I'm here to make sure that we take the gloves off and we don't fight.

Elliot Herland: 1:33:56

Right, right, right. Uh, you want to be an advocate, but you want to turn from a litigator to a negotiator. And that's a very important, um, the word these days is pivot. That's a very important pivot. Um, but like you were saying, uh, and you know, here I am in Minnesota, the land of 10,000 lakes, and there are guides that take you out on Lake of the woods and they take you where the fish are, but they're not the ones throwing in the line. At least they shouldn't be there telling you, uh, you know, here's where the fish are. Now you throw in the line, you catch that fish, you bring it in, you close the deal. You, I might grab the net and help them pull the fish in. But they're the ones that are doing the fishing and you're just taken to where they need to go to get what they want, which isn't big fish.

Melissa Gragg: 1:35:01

Well, and I think that a lot of it, what I will say is I'm an advocate for the process. And so, you know, I'm here to, to try to facilitate you through a process that has been successful in getting people to not have to go to court for it. But you know, you don't have to agree. I mean, mediation is you don't have to agree to anything, but sometimes the pain of continuing gets you to finally, you know, before we would settle things on the courtroom steps. And I think that now we don't have that sort of push of like a trial date or a deadline or things because it keeps on getting moved sometimes. But I think that if we start, you set the mediation or you set that process, then you have a timeline. Again, you have a structure and you have, you know, not a deadline per se, but it's in everybody's best interest to move towards a finish line or to stop the process or you're just wasting money. Um,

Elliot Herland: 1:36:05

I love it when attorneys call me and they've got a trial date set, uh, and they want to do this mediation before the trial. So what happens is they're prepared for trial, which means they're very prepared to, to give me the information I need. And they also have the pressure of that trial and the angst on both sides about that trial. So there's some motivation, uh, two to both sides to get the thing resolved because most people except for a few attorneys, uh, they don't want to go to trial. They don't want that experience.

Melissa Gragg: 1:36:51

Yeah, no, I think that, you know, we all get, uh, prepare for it if we need to, but definitely, and I don't think it's always in the best interest of the clients, you know? Um, but there's always exceptions to the rule. There's always, I mean, everything is completely different. Nothing, no two cases are alike. So, uh, and quite frankly, I just think people have need to have options. So, and figure out what's going to fit with your situation. But you also said something about being positive and optimistic. And I think that, you know, giving it the option, the opportunity to be successful, even if you are looking at the situation, say, and there's no way that we could all agree to something, giving it the opportunity and the positivity to try it. I think, um, the process does work, you know, and, and so

Elliot Herland: 1:37:46

Litigate now sometimes though I will use pessimism at a certain point where I'm going to say, boy, I don't know, this could be one of those two percenters. The other side is really not, you know, they really think that they've got a strong position here. Uh, you know, what about this? You know, make them feel like, Oh, it's slipping away. The opportunity is slipping away. So there is a place for pessimism if you need it. Um, but

Melissa Gragg: 1:38:21

No, and I mean, and, and part of it's, you know, unfortunately I don't even know if that's pessimism that's reality, you know, we're, we're just saying, yes, you want some, you know, you want sole custody, physical, emotional, you know, legal custody of your kids that, you know, that only happens under certain circumstances. Well, they did this, so that's probably not going to qualify. I know it's agregious but the court may not. So, you know, sometimes there's that, but, um,

Elliot Herland: 1:38:54

It was get what you wish for

Melissa Gragg: 1:38:56

Exactly. If you focus on it, it will come

Elliot Herland: 1:39:00

Because you need to be careful for what you wish for, because if you get full custody and they only have to see the kids on the weekends, guess what? You're a full time parent basically.

Melissa Gragg: 1:39:12

Yeah, no, totally agree. But tell people, I know people have enjoyed all the information that you've provided. Um, and you are, you know, working with the ABA, the American bar association and being that it's a lot of opportunities, but you also are really strong, um, in talking about and discussing mentorship, you know, for young people, for other people in the field, do you have an amazing amount of experience? And so I think that, you know, anybody could reach out to you, but tell us more about what you focus on and your firm.

Elliot Herland: 1:39:50

Uh, well, I'm solo. Uh, and I have no problem talking with attorneys about questions, even if they're using a different mediator. Cause if I give them good answers, they're gonna use me next time, maybe. Yeah. Uh, and I don't, I love talking to other mediators about ideas, uh, you know, that spirit of competition and wanting everybody to use me. Well, frankly, I don't want everyone to use me because sometimes I have to mow the lawn or I want to go fishing with that guide. That takes me to where all those fish are. Uh, uh, so I like to talk to people. Uh, I like to share my ideas and I, I want people to be successful. I want people to mediate and not litigate. So, you know, I have a LinkedIn profile with my name on it, just like it is there. And I have all my contact information there. My website hurling mediation.com has a lot of, Oh, thanks. That's I, I, I spent a lot of money to have someone who actually knows what they're doing, build my website. It's so much better than what I could have done. And that has that website has a lot of information about everything I talked about here with you today. Um, I have a very, very long email address, which is unfortunate Hurlin mediation services@outlook.com. And that that's on my website. That's on my LinkedIn page. I have a Facebook page, you know, I put my podcasts up there. Sure. My guest appearances, but people can call me. Uh, and I answer my own phone. If I don't recognize the number, leave me a message. If you're not trying to sell me flooring, I'll call you back. And it's a(952) 240-4005(952) 240-4005. Uh, you know, call me anytime from, Oh, another good way. Uh, you're, you're good at this. Call me anytime from nine o'clock till I don't know, eight o'clock at night. Uh, don't call me after that. Okay.

Melissa Gragg: 1:42:27

That that's perfect. And we're going to provide all of your contact information also, um, on the videos and the podcasts and the website and all of that good stuff. So I think you've been an amazing guest and an amazing resource for people who kind of want to get into this space or learn more, um, and they can reach out to you. So I appreciate all of your information and, uh, we'll continue to see where next year goes with online mediation, right? Yeah. Thanks for having me on. I really enjoyed you're very welcome.