John Miles: The Future of Mediation

Episode Synopsis: More and more lawyers are opting to take their cases to mediation rather than trial and John Miles, founder of Miles Mediation & Arbitration Services, doesn’t expect that trend to stop anytime soon. He shares what lawyers need to know about the arbitration process in order to bring the best results – from how to prepare to what environment works best for clients.

Podcast Transcript: The following is a transcript of Episode 15 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple PodcastsGoogle Podcast, and Spotify.

John: Your day to play your best case and to play your best facts is now at mediation. It’s gonna be better for your client and that’s gonna be more business for you in the future. So, on the plaintiff side, they’re gonna have a better experience, they’re gonna say, “Man, you have got to hire my lawyer.” They’re telling me it’s gonna be 3-4 years before I was gonna get to trial. In, you know, 18 months time, I got a great result.

Scott: That was John Miles, the owner of Miles Mediation, talking about how, in the post-COVID era, the ability to know how to navigate and do well at mediation will be as important, if not more important, than the trial skills that we have learned so far in our career. I enjoyed talking to John Miles, learning about how he transitioned from being a lawyer to the owner of Miles Mediation, about his commitment to mediation as a practice and to the things that he suggested to make us all better negotiators and participants in mediation.

Thanks so much for listening to “The Advocate’s Key Podcast,” and now I give you John Miles. Well, John Miles, thanks so much for being on the podcast. It’s a real honor and a pleasure to have you on.

John: Well, thank you, Scott. It’s great to be here.

Scott: And how have things been going in your line of work with COVID, and do you find things are going back to be more in-person or are things still kind of affected by it?

John: Definitely affected by it. I can remember, you know, leaving the office…and I think it was March 24th of 20, you know, thinking, “Well, this will be a 2-week vacation and then we’ll come back and everything will be just as it was,” and that certainly wasn’t right.

What we’re seeing now as we’re still in the pandemic, but, hopefully, things are getting better, that about 50% to 60% of what we’re doing is in-person. And to give you an idea, Scott, before the pandemic, like 98% was in-person. And then, if you parse that a little deeper, we find that four cases that are settling well under $100,000, almost 100% is virtual. For those mediators that I have that are handling more complex matters or matters that are settling, you know, in over $100,000, it’s 75% is in-person or hybrid.

So, I think what the pandemic has done is allowed people that have cases that, you know, don’t really require a full day of in-person, it’s given them an option of a less expensive more convenient way of resolving disputes.

Scott: Well, great. Well, we’ll kind of circle back to that in a little bit but I wanted to just, first of all, start off, and this is a question I ask every guest, to introduce yourself. And, so, I ask a question that can be just a very basic factual question or it can be a deeply philosophical question, take it for what you will, but who is John Miles?

John: Ah. Well, I guess that would depend on who you ask, right? I’m a husband, a father, and a business owner. And also I lead a Bible study, a Sunday school class Bible study on Tuesday morning. So, I guess it would depend on your audience, that’s who I am.

Scott: Well, I mean…and I know that you run a very large mediation business, but tell me, I wanna kinda go back a little bit, tell me about your decision to go to law school. You know, back in college, what made you want initially to become a lawyer?

John: Well, yeah, that’s an interesting question. It’s funny because my son, who now is my CFO and works for me, he’s so young and he has his whole professional life ahead of him, and he asked me how did I decide I wanted to be a lawyer. And when I really thought about it, Scott, I don’t think there really was a moment where I said, “I wanna be a lawyer,” you know, that I have this passion for the law. My grandfather was an attorney and I know that, to my mom, that, if you could be an attorney and have a profession, that was a big thing. So, that’s something she always wanted for me.

My academic leanings were much more in the social sciences. So, when I went to college, I majored in political science and history with an English minor. And as anyone listening to this knows, that means you’re either gonna teach or, you know, you’re gonna go to law school. So, it was just kind of a natural progression really.

And then, when I got to law school, I was a very average student, you know, middle of the class. And I can remember getting a job between my second and third year. This is what I was sharing with my son is, when I was working at the firm, I had found I didn’t like it. I don’t think I was particularly good at it, I certainly…to say I had no passion for it is an understatement but I kinda felt like I’d invested so much time, so much energy in becoming a lawyer that, you know, I just had to see it through. And, you know, I’m 59-years-old, kind of came from that generation that, if you start something, you know, you finish it. So, it never occurred to me to sit back and say, “Maybe one of the reasons I’m not excelling at this is because I don’t love it, I don’t have the passion for it. Is there something else that I have a passion for?”

Now, I practiced law from…I graduated in 88, I was at the same firm until 1999 when I started becoming a full-time mediator. But it took me that long. You know, people would say…I hear people talk, “Well, everyone hates their job,” you know, or, “I work for my weekends,” you know, things of that…but [inaudible 00:06:47] that wasn’t true. I observed, you know, spoke to a lot of men and women who really loved what they did.

So, it really took me that 11 or 12 years to begin to say, “Well, what could I be excited about?” So, I started the mediation company. By “mediation company,” it was me and my truck, you know, driving around, trying to educate people at that time as to what mediation was but also to use me in that capacity. But it really wasn’t until I was 45-years-old that I found my passion. My passion was to build something. And that was Miles Mediation. So, I no longer mediate full-time, I run the company, build the company. And that’s what I truly love.

Scott: Well, what was it? Well, first of all, what type of firm? Did you stay in the same firm that you worked in law school, when you graduated from law school, or was it a different place?

John: Same firm. So, I started with an insurance defense firm. And for those of your listeners who aren’t familiar with that, one of the things you get when you purchase automobile insurance is, if you are sued, you have coverage up to your policy limits and the company hires a lawyer to represent you. And, so, that’s what I did. We had some mainline insurance carriers and we had some self-insured carriers. But that’s what I did. I represented defendants and personal [inaudible 00:08:28].

Scott: And what do you think wasn’t clicking for you there? I mean was it just a general malaise about your day-to-day work? Or what do you think the dissatisfaction was early, I guess, in clerkship days and in your early years as an attorney?

John: Yeah, that kind of gets back to my conversation with my son. I can remember being a young man, I had summer jobs where I would work construction. I always thought it was so cool that of course, I’m just doing the grunt work, you know, I’m not building…you would not want to live in a house that I’ve built, you know. But when you left the job site, you could see the framing. And I remember thinking, “Something has been left behind that is real and is tangible. And it’s gonna benefit people, people will live in that house, you know, have memories in that house, raise families in that house.” And that was really cool to me.

I don’t think I ever connected that way with the practice of law. So, if I tried a case and if I happened to get a good result in the case, that euphoria lasted about a half hour. And then I was right back. And some people really enjoyed, you know, that aspect of that, you know, representing people. But I never really felt that I was making a real difference in the lives of people. You know, saving a few bucks for an insurance company, that didn’t strike me as a vocation.

So, I think that truly doing mediation, it could’ve been anything, but becoming a mediator was just a transition from the practice of law to becoming an entrepreneur and building something. So, to me, Miles Mediation is like that house that, when I leave, I can look back and I can say, “I’m building something that, hopefully, is making the lives of my employees, my mediators, and our customers better.”

Scott: Do you think if you’d have gone on and started a law firm and managed and built a law firm that it would be the same?

John: Perhaps. Yeah, yeah, I could’ve seen that as being something that would’ve been fulfilling. But where I was that really wasn’t a path that was open to me because, in the insurance defense business, I didn’t have portable clients. You know, I worked on clients that were firm clients. So, the notion that I could’ve built a foundation of clients was just really not a path that was open to me. But I never considered that before, that’s a good question. Yeah, I could see how having my own firm and being able to do it, you know, quote unquote, “my way” would’ve been a challenge I think I would’ve embraced and enjoyed.

Scott: So, it was the building and working on and continuing to maintain and build up a business of your own that brought you a level of satisfaction that being in the trenches and practicing law didn’t. Because it just seems like you were just doing cases and closing them out and it wasn’t leaving anything tangible behind, there was no equivalent of the house that you would drive away from that you could see being constructed every day…

John: Yeah, that’s true. And another thing that…I think when I was younger, I saw law as a way of making money and having financial success. And like many things in my life, I was slow on the uptake and I thought, “Well, I’m going through all this stress and all this anxiety and worry and the money’s not worth it. So I’ll find another way to make money.” But when I let go of money being the object and finding something that I was really excited about…and then the money followed but it was no longer the object of the exercise. So, I think that was part of it as well.

Scott: So, did you start…so, how did you transition out? I mean you said it was you and your truck when you left, in 1999, talk a little bit about the transition. How did you get into mediation?

John: Yes. Well, toward the end of my litigation career, in addition to doing the auto cases, there was these construction cases that had to do with an applique of stucco and there was a lot of litigation in the Atlanta area. And a company we represented insured the window manufacturers. And the windows were a component piece of the house, obviously, so it became part of the lawsuit.

And I would go to these mediations and I thought, you know, “This is kind of cool. People are sitting down and there’s all these defendants and there’s these plaintiffs, these homeowners,” and, you know, I was intrigued by it. And where I was going, it still exists, Henning Mediation. And Ed Henning, truly just a masterful businessman, visionary, just incredible, he really invented mediation, as it exists in Atlanta market, out of whole cloth. And we would strike up conversations because, when you were at these mediations, multi-parties, it was going on all day, and just really got talking, you know, to Ed about that. And I got thinking to myself, “Well, you know, I think I could do this.”

So, at one point, Ed had thought, you know, wanted me to come and join the panel. And I was so blown away by that. Because again, I just have all the respect in the world for Ed. Ed has since passed. I tell people, I think had Ed not departed this world, I never could’ve done what I did. I mean I think he would’ve beaten me at every turn, he was just that kind of innovator and that brilliant.

But I went and told my dad, I said, you know, we were going on a family vacation, beach vacation, and I said, “Dad, you know, this is awesome. I think I’ve found my calling, it’s gonna be mediation and I’m gonna join Henning.” And like any firstborn, you know, wanting to please my father. And he asked, “Well, you know, what’s Henning?” I said, “Well, dad, you don’t understand, you know, this is a big deal. Just understand this is a big deal and be proud of me.”

Well, the next morning when I came out…and he had sketched my original logo were three triangles that formed an M when you fit them together. And the top triangle he put facilities. The bottom-left he put mediators. And then, in the bottom right, price. And he said to me, he said, “The only reason that Henning is the only game in town [inaudible 00:15:36] competition. If you can provide mediators and facilities that match theirs at a competitive price, then you’ll put them out of business.” And, you know, again, I guess firstborn, you know, wanting to please my father, that really became the start of Miles Mediation.

And, of course, you don’t go to facilities and other mediators right away, so, to get things going, I, you know, would drive around and try to preach the gospel of mediation and, as I said earlier, and try to get people to use me as a mediator. And back in that late 90s, early 2000s, there were a lot of people. Oh, I should add, Scott, that I moved out to Madison, Georgia, so, to build my business. I said, “Forget Atlanta, that’s Henning. I can’t compete there. I’m gonna try to beat them out here, in the Hinterlands.” And, so, I’m going to these courthouses in Monticello, you know, Hartwell, Athens, and trying to, you know, persuade people to do mediation.

And it wasn’t unusual. I mean people had a general idea, judges had a general idea, but no one was gonna push it. What I really got was, “Well, yeah, I’m not gonna stand in the way of it, if parties wanna mediate, I’d be happy to let them mediate. And leave some of your cards with my secretary,” you know, “and she’ll pass it out.” But see, back then, the population of Georgia, the growth, everything, you could file a case and get a case tried within a year, no problem. In this part of the state, it could happen within 6 months.

So, where we are now in the marketplace, in terms of the amount of litigation, in terms of the complexity of litigation, the cost location, that didn’t really exist then as it does now. Therefore, there really wasn’t anything pushing parties towards finding an alternative.

Scott: In other words, you were gonna get your case resolved. If you couldn’t settle it, you’re gonna have a jury verdict in a year. Or 6 months in a rural place.

John: Oh yeah. And, Scott, I can remember when I was doing the insurance defense, that was…you know, we had cases in and out within 6 months, a year at the most. And the total bill was under $5,000, certainly under $10,000. So, yeah, the cost of it, the time element did not exist. So, there really wasn’t a need for an alternative, at that point.

Scott: So, how long did it take you to sort of have a building and kind of have it up and running?

John: Oh, yeah. So, my first office was here in Madison, and my parents had purchased a home on Main Street. And it had six rooms and that became the Miles Mediation headquarters. And as we began to grow a little bit, I brought another mediator on. And he was out of Atlanta, so, he thought, “Well, we need to have an Atlanta office.” So, we had 900 square feet in the…ironically, we were in the Terraces, [SP] and that’s where our Atlanta office currently is, but we have about 900 square feet. But pretty quickly what happened was the Atlanta business really started to grow, and the Madison business was not so much.

So, within about a year…so, I think we opened that Atlanta office in 2003. And by 2005, I’d left the Terraces, moved over to the Concourse into 4,700 square feet. And then 4,700 square feet we moved across the hall into 6,000, which then became 10,000, which became 12,000. And now we moved back to the Terraces, we have 20,000, you know, square feet.

Scott: And that’s just Atlanta. And then I think you have several offices throughout I guess the Southeast?

John: Yep, we do. Atlanta’s our largest and kind of our headquarters.

Scott: So, you obviously were doing something well, not only in the business that you were building but, I’m gonna assume, in those early years, you were doing a lot of the direct mediation yourself. What do you think made…I’m probably gonna put you on the spot and ask a question, but what do you think made you a good mediator? What do you attribute this success that you felt early in your career?

John: Well, one of the mediators at Henning, when I was kind of noodling the idea of doing this, he made a very interesting comment. He told me that he thought I’d be good at this. And, so, I said, “Well, what is that?” He said, “You have to be able to look someone in the eye and tell them they’re crazy as hell and then, the next moment, get up and get him a cup of coffee.” He said, “It’s a very unique skill set. But if you have that ability to lean in and exert pressure when you need to, know when to step back, and always be trying to make sure the people are happy and have a good experience, that’s kind of the skill set.” And as I look for mediators, that’s the skill set that I look for to try to predict if someone is gonna be successful doing this.

So, I have that. I mean, as I said earlier, I’m a firstborn, but really all my life I was trying to help people get along, you know, “Don’t fight,” “let’s find the common ground.” So, that’s just kind of my natural [inaudible 00:21:32]. So, yeah, I was successful doing that. But, as to why Miles I think as a company, not me, as an individual, as a company has been successful, I’ve just been enormously blessed with, first, the mediators that I was able to bring into the organization, and then, later, with the staff that I was able to build. And I say “I built,” and, again, it was knowing what I didn’t know…I think that’s another thing that I think any entrepreneur that’s had any level of success would tell you is you have to know pretty quickly what you don’t know and bring in people who can do the things that are not your strengths. And I’ve been able to do that, you know, really at each step of this process.

Scott: Well, you know, the skill that you talked about a minute ago, which is the ability to tell someone they’re being ridiculous or they’re being crazy or they’re being unrealistic and then knowing when to then go get them a cup of coffee, that’s also a really tricky lawyer skill, I find. And I’ve mainly done criminal litigation, I’m expanding into just general trial law, so, I’m expanding to do civil as well, but, you know, whether it’s been plea bargaining or whether it’s been, you know, negotiations, one of the…and I find this not only with myself but with lawyers in general, we tend to be really great at advocating or sort of being confrontational on behalf of someone but a lot of trial lawyers, and I’ll include myself in this, are not the most confrontational of people interpersonally. So, it’s one thing to go into a courtroom and you’re in a situation where you have to be adversarial, you know, there’s a judge and you’re trying to achieve something or you’re trying to defend against something but, when the client is being unrealistic or it’s just in terms of not taking responsibility or maybe overvaluing a case, I find that to be hard…those are difficult conversations for me to have. Versus whereas I’m perfectly fine going into court and, you know, duking it out with somebody. Like for those that are not so great at sort of toeing that line between telling someone they’re nuts and somehow maintaining your relationship with them, what do you think goes into that?

John: A lot of it is need. And what I mean by that is I have had a few but it is rare the man or woman who comes to me and says, “I think I can be successful doing it.” And let’s say they have the skills. And many of them did, that we were just alluding to, but yet there’s no need there. By that what I’m saying is that they’re still practicing law or they’re still in business or most of their income is still coming from another source.

It’s amazing how much patience or how much fortitude you can develop when you have to. So, one of the things I’m looking for with all the mediators that I bring in to my organization is people who desperately, and I don’t use that word lightly, who desperately want to develop a full-time ADR practice. And what I found is people who maybe didn’t have that much of the personality trait to begin with, if they know that’s what they need to succeed, they can develop a lot of it in a hurry.

So, that’s the motivation part of it. And all of my top people, and one of the things I’m very pleased about in our organization is I think we now have 54 mediators on our panel. Half of those mediators are doing five or more mediations a month, and fully a third of them are mediating every day. So, I think identifying…oh, and all those who are mediating every day, dude, this is the only way they earn their income. So, that makes them being very customer-centric.

One of the things that I’ve done at Miles is our model is not a law-firm model. So, a lot of my competitors say, “We’ll put you on the panel, we’ll see how you do. If you succeed, great. If you don’t succeed, great,” no skin off my nose. But what we’ve adopted, as a personal-services model, so, all of our employees have been through customer-service training and all of our mediators adopt that we are all about customer service and we are all about delivering the best customer experience.

So, in mediation, it’s a little tricky because you’ve got two parties, or sometimes more, that have competing interests. So, this is a promising resolution, although I will say that closure is a huge thing that you need to deliver if you’re gonna be a successful mediator. But what I mean by that is, number one, you don’t want people to be worse off than when they came. So, if they come in, maybe they don’t settle the case but you don’t want people storming out saying, “Well, I’ll see you in court.” You wanna make sure that you’ve made progress in some way so that they can say, “You know what? Having come today and spent this time, I can see that I am in a better position than I was before I came.” And, so, we really try to deliver that. And if it is the way you make your living, it’s almost guaranteed that you are going to deliver on that promise.

Scott: So, what…because it seems like you deal with a lot of different things. First of all, people that are coming to mediation, they’re not getting along to begin with, that’s why there’s a suit. And then you’re gonna have trial lawyers tend to have strong personalities. What are some things that you do to kind of cut through all of that?

John: Yeah, that’s a great question. So, when I looked at the 3Ms, you know, my dad said it was gonna be mediators, it was gonna be, you know, price, and then it was gonna be facility. Well, early on, I realized that environment is enormously important to setting the stage for resolution. So, all of our offices at Miles are independent. And what I mean by that is there’s no law practice going on at all. People come there with the object of focusing on that matter to anything else that’s going on.

Scott: Because a lot of mediators are maintaining a law practice but they’ve gotten a certification to be a mediator. So, the mediation is kind of one of the things that they do to earn money, including they’re continuing to engage in their practice of law.

John: Correct. And a lot of them are very successful. But again, getting back to that customer-service model is, to ensure the greatest likelihood of resolution, we, to the extent that we can, encourage people to come to one of our facilities. And as we were talking about earlier, the greater the complexity of that case or the more risk…if you’re someone who’s lost a child, lost a spouse, or you yourself has been horrifically injured, this is a big deal. And that mediation is a big day. In fact, it may be your day in court, so to speak, your only day to be heard, and to express yourself.

Where you do that is very important. And the more comfortable that environment can be, the greater chance that you will get the mindset right. And I’m talking about the parties, of course, but this also pertains to the lawyers. So, if you’re in a law firm and you got the…as you know, you know, having, you know, still practicing law, phones are ringing, people are running around, the conference rooms, the furnishings, the paint, the carpet, the food that we serve, the snacks, the beverages. As I said, all of our folks that our frontline people have been trained in customer service, meeting the needs as they arise. We don’t want any stressors, we don’t want anything from the outside to intrude on this process. And it is a process, from beginning to end, that has people getting the idea, the mindset, as I say, for resolution. So, setting the stage for that is enormously important.

And then the second piece of that still is the mediators. I’ve been blessed to have, you know, the best in the industry who work for me. And people say, “Oh, John, I’m sure,” you know, “your competitors would say they have the best in the industry.” Well, yeah, I’m sure that they would. Of course, they’d be wrong. You know, they would say that. But, you know, I can tell you that my top people book like 30 to 40 to 50 matters out in front of them.

And we charge the highest rates in the Southeast. So, the marketplace is saying, “These guys have a skill, these men and women have a skill that is desirable and we will pay for it.” So, I can point to that and say, “Yeah, there’s no one in the industry, I have more of the top folks, by bookings and by rate, than anyone else,” you know, “in the state, in the region.” And, so, you combine that with the facilities. And that’s a good recipe for success.

Scott: Well, with so much of…you know, at the beginning of the recording, we talked about, you know, there’s a fairly sizable percentage, and that percentage is going up, of mediations that are being done over Zoom or WebEx or some other computer conferencing software. And I know that, you know, a big component for you is the facilities. How do you deal with the fact that you now have a lot of people who aren’t gonna go to the facility anymore? How do you replicate that in an online situation?

John: Yeah. So, what we did in the middle of the pandemic…well, I say “we did,” I didn’t do anything, it was my son Jake who’s my CFO, and Parag Shah is my chief operations officer, and we were seeing these trends. So, we launched a wholly owned a subsidiary called ADR On-Demand. And what this provides is the ability for parties to mediate virtually in a half-day format and it operates on the Uber model. So, we keep internal statistics on the mediators.

And I do have…I think there are six…no, I think there’s seven now on the ADR On-Demand panel. So, these are all very successful mediators who have settlement averages under 100,000 and have length of mediations under 3 hours. So, and they’re well known in the industry. So, what we found with these cases is that the cost and how quickly the mediation can be scheduled, so, the expense and efficiency, is more important many times, in fact, almost all the time, than the mediator themselves.

So, if, for example, Rex Smith is one of my mediators and he handles 7-figure disputes, people will wait 3 months to book Rex Smith. But if you have, let’s just say, a car-wreck case where you have an insurance carrier, you know what they’re gonna offer. You know, most people have litigated that case many many times. The plaintiff’s attorney knows, the defense lawyer knows, the insurance company knows. Maybe the plaintiff doesn’t yet know but everyone knows where that case is gonna result. It doesn’t require a full day in-person. And as much as they’d like to be at the Miles Facilities, they just can’t justify that cost.

So, ADR On-Demand allows those folks to come on, schedule the mediation, and they pay a low flat rate, and then they can mediate it tomorrow, if they want, because it operates on the Uber model. So, as soon as they engage, the first mediator on that panel of seven to accept the ride gets the mediation. And it’s proved very successful for that class of case where, you know, we just gotta knock this thing out, we gotta find [inaudible 00:35:14] we’re gonna settle it or not. And if we are, let’s get it done cheaply and let’s get it done quickly.

Scott: Okay. So, I’ll change gears a little bit. The lawyers that you see, who come to mediation, who seem to be really good at working out a case in mediation, what do you think sets them apart?

John: Probably the same thing that makes them successful at trial. Number one that I find that the lawyers that tend to get the best results have a proven track record of success. Yeah, I won’t use names but, if a lawyer comes into our facility who the other side knows will try a case, be that on the defense or on the plaintiff, they’re gonna be taken seriously and they’re going to obtain a better result for their client.

And then the other thing is preparation. I tell people, especially in larger matters, “Prepare for mediation like you prepare for trial.” So that, when you come in, you know, they know that you’re ready to go and they say, “Look, I hope we settle the case, but if we don’t, I will be equally prepared if we try this case.”

And then the final part of this…and this is somewhat nuanced, more so than the other two, but having a humility about yourself. I know it sounds odd by lawyers but what I mean by that is not saying, “Oh, shucks,” you know, “I’m not all that.” I mean know the weaknesses of your case and be open about that. Those are the ones that I think consistently tend to get better results for their clients.

Scott: Well, are lawyers…and I know the preparation, and the reputation, the track record, and the ability to recognize and be candid about the weaknesses of your case are what makes you, you know, lawyers who are good at mediation or who are good at working out cases, you know, get the best result. How do you overcome the concern that, if I come into mediation and I’m treating it like a trial and I’m talking about my weaknesses, how do you overcome the concern that I’m just giving the other side…because I’ve heard lawyers say this, you know, “I’m gonna go to mediation, and I don’t think the other side’s really taking it seriously. And if I go in there and do it the way I’m supposed to do it, I’m gonna just reveal my whole trial strategy and I’m just gonna come out worse off if I do end up in trial, and I think I’m probably gonna end up in trial.” What do you think the answer to that is? Or what do you think is the way around that?

John: Yeah, that’s an excellent question. And it really comes down to this, you have to trust your mediator. I mean I talked about what my folks charge, and I’m sure that most of our clients say, “I wish they didn’t charge that much,” but they will pay it as evidenced by how busy they are. Each one of those individuals, and I’m talking about like my top 10 or 15 people, can look an attorney in the eye and say, “You tell me I will keep that in my back pocket and I won’t use it, unless I believe there is a good chance that we are going to get this case resolved.” Because, Scott, you’re absolutely right, you do place yourself at a distinctive advantage if you play a card. Now the case doesn’t settle and now your opponent is ready, so, you’ve lost that surprise at trial. That’s no small matter and it requires an enormous amount of trust in your mediator.

And my top people have very high rates of resolution, not only at mediation but, if the case doesn’t settle at mediation, they will stick with it afterwards and bring that case to conclusion. So, that’s what I would say is, you know, get a mediator you trust and trust that mediator to have that information but only to use it if they think that there is a good chance of resolution. But having said that, there still is a risk in that. There absolutely is.

Now, here’s where the COVID comes back. Although, you know, courts are back open, you know, don’t kid yourself. Anyone out there that thinks that it’s gonna be back to business as usual and we’re gonna be trying cases within 4 or 5 months just like we were before the pandemic…no way. So, one of the things…that used to be more of a threat that lawyers could use, “I’ll see you in court,” but, well, no.

Scott: In a few years, you might.

John: Right, right. So, one of the things that I think has happened in our industry, Scott, that we don’t have any outside filings, you know. So, a lot of this is just supposition on my part but one of the things I think that’s happened in the pandemic is, before the pandemic, I saw one study that said…I think it was in calendar year 2015, I think it was like 15 billion dollars were spent by parties for civil litigation in the state of Georgia. And I would guesstimate that about 15 million dollars were spent in Georgia mediating cases.

What I believe has happened on this, as we emerge from this pandemic, and the fact that you can’t get cases tried like you used to, that those who have the money, being on the defense side, those who want compensation or need compensation, seeking justice on the plaintiff’s side, now are looking at ADR…and by “ADR” I mean alternative dispute resolution, you know, mediation arbitration…in a way that they weren’t before. And what I tell my folks in our internal meetings is I think that, before when you hired a litigator being a plaintiff’s attorney and defense lawyer, they said, “We are preparing this case for trial. So, we’re on the trial highway and we are heading toward the destination of our day in court.” An off-ramp was mediation or arbitration to be determined by the lawyer when they thought appropriate.

I suspect that what’s happened now is that, for many lawyers, and this is happening because that’s what they’re hearing from their clients, both the injured and bereaved folks and, on the defense side, those with the money, is this ADR thing. I think we need to be on that highway with that destination. And litigation or trial has become our off ramp. I say that because our business, this year, is up exponentially over what it was last year. And I don’t think that’s happening just because there’s been a backup of cases in COVID, I think it’s happening, again, because attorneys have taken a new look at ADR.

So, and I say all that to set up this, I don’t think it’s too much of an overstatement to say that your day to play your best case and to play your best facts is now at mediation. It’s gonna be better for your client and that’s gonna be more business for you in the future. So, on the plaintiff side, they’re gonna have a better experience, they’re gonna say, “Man, you have got to hire my lawyer,” you know, “they were telling me it’s gonna be 3-4 years before I was gonna get to trial. In, you know, 18 months time, I got a great result.”

Scott: So, you think where we are now is, whereas the trial was the penultimate moment in a plaintiff’s case, you think maybe the day that you go to mediation may be becoming that moment?

John: Yeah, of course, what would you expect me to say? You know…so, see that through the filter. But, as I said, we are up exponentially. We’ve never had a year like this in terms of growth. And we held our own, during the pandemic, but we are doing like three to four times the work we were doing before the pandemic. I don’t think that’s happening industry wide, I suspect that’s happening…although I do think our competitors are doing better, obviously, but it’s because of, yeah, precisely that, that those who need to find resolution and those who can give that resolution through, you know, economic means are saying, “This is better than trial.”

Scott: Well, okay. So, how do you think the day-to-day experience of lawyering would change with that new model? So, in other words, from the moment you open up the file, if your penultimate moment in the case is when you go to mediation, how do you think the litigation up into that point would need to change to make you a more effective lawyer in that reality?

John: Well, let me answer first how I think it won’t change at all. So, you still are going to have to be doggedly determined to get the best result for your clients. So, that means you’re gonna be doing your preparation, you know, you’re gonna be doing your witness interviews, your depositions, building that case. That’s not gonna change at all. But where I do think it’s going to change is that there is going to be, from the side of your client, more of a sense that we are not going for a 100% win. And what I mean by that is that every case has [inaudible 00:45:22], two sides of each story. Right? So, rather than you are paying me to go and, you know, we’re gonna go to the mattresses here. I think there’s never a bad time for a “Godfather” reference…

Scott: Right. Never, never.

John: So, we’re gonna go to the mattresses, you know, what you’re saying to your client is how important is winning to you. Right? I don’t know that that was even really asked before, “I’m gonna litigate your case. I’m the expert, I’ll let you know when I need you.” Now you’re saying, “What is it that you are truly looking for?” I think that, especially in the case of a business dispute, most business folks say, “I just wanna get back to what I do, making money or pursuing my passion with my customers. I want this over.” Okay? Well, understand that, if this is gonna be over, then you’re not gonna get everything you want. I think most business people say, “Yeah, I get that. So, give me options,” you know, “what’s the cost of going forward and what’s the cost of resolution?”

If you are injured…look, when I was mediating, especially if there is a horrific injury, there is gonna be anger. I mean there’s going to be an emotional component. But what I found is ADR provides something that court never can. That is the opportunity to sit across the table, look into the eye of the person who’s injured you or the person representing the person that’s injured, and express yourself in your language, with your timing, in an uninterrupted way. You will never get that at trial.

Scott: Never. Yeah, never. Right.

John: And I think if both parties said, “You can,” you know, “wait 3-4 years. You’ll never get to talk to the jurors. You’ll answer my questions and you’ll answer cross-examination questions as long as you’re not interrupted by the judge. But in the final analysis, you’re not going to ever get to communicate as you choose to communicate about something that is very intensely personal and matters a great deal to you.” Most people say, “I don’t want that, I wanna communicate in my voice.”

Scott: It’ll be very stilted, you may not even get to say what’s most important to you when you get there. You know, and I found this, you know, just in the criminal side of things doing vehicular-homicide cases. I found, in a lot of vehicular-homicide cases, the way the system works almost ensures you end up in a trial. I think a lot of times what the victim’s family in a vehicular homicide or a serious injury cases…you know, in a case where no one meant to do harm, you know, versus a malice murder or something like that, a lot of times the victims, what they most want is to hear from the accused some expression of remorse or some sort of reconciliation. But, of course, if you’re a defense counsel, you can’t have your client saying things like that because that would be an admission of guilt. And, so, I wish that, in that context in particular, there would be an opportunity where, you know, at no cost of an admission, that you could have the parties sit down and talk. Because I feel like a lot of vehicular homicides might get resolved differently. So, I mean I certainly see that. And the element of being able to sit down and vent to the other person seems like that would be just an extraordinary benefit.

John: Yeah, to be heard and to be, if not respected, at least understood is something that ADR provides that the court does not. I think, you know, I’ve seen surveys before that say, “What leads to an employee satisfaction?” money is never one of the top three things but most say, “I wanna feel like I know what the mission of the company is. I want to know that I am contributing toward that and that my work has meaning.” Right? The same is true I think in trial.

But I think the problem sometimes lawyers make is they say, “Well, my client just wants a dollar figure. Well, let’s just get to the dollar figure.” And I think that’s a mistake. So, going back to your original question is, so, how does this change how lawyers will prepare, I think being more cognizant of what it is that you are trying to deliver for your client. And I think that what’s happening in the industry as a whole is more lawyers are coming to the conclusion that, “It makes economic sense for me to get cases resolved earlier and it makes emotional sense, financial sense for my client.”

Scott: Yeah, I mean, you know, nobody, except for I guess the most argumentative, you know, people that just enjoy it…I mean it’s a rare person who’s not…the lawyers, I suppose, enjoy litigation, to some extent, but the parties generally hate nothing more in their lives than some ongoing case, some ongoing litigation. And, so, I would imagine there’s extraordinary benefit to getting that past them.

John: Oh, I think so. You know, I think that one of the things that I’ve always felt is we pride ourselves as Americans, you know, we pull ourselves up by our own bootstraps and we’re not afraid of a fight, “Bring it on” kind of thing. But I think one of the greatest things about our country and the American experience has truly been our ability to compromise, corporately and individually. Because I think that’s how we’re wired.

Scott: So, walk me through what would happen if…so, you have one of your top mediators mediating a case and, you know, it’s a bigger money complex case with multiple parties. Sort of walk me through what does that day or, you know, set of days look like. They come to your office, what happens?

John: So, the first thing, as I said, in terms of setting the mood, the way we’ve designed the entry of all of our offices is people are ushered in and they are taken to the room where they are going to be with their lawyer. To the extent that you can, you wanna avoid any kind of impromptu meeting, potential confrontation with the other side or the other side’s lawyers. So, that they’re taken to their room, the other side’s taken to their room.

Then the mediators, or the mediator, will come in to each room, introduce themselves, already beginning to set that mood and make the connections that will be necessary as the day goes on. Most times there’s an opening session. And this is important for some of what we were talking about before where the plaintiff or the defendant or both get a chance to express themselves. That can be done through the lawyer or it can be done by the client. And that’s in an opening session.

My belief is, and I think that most of my top mediators would concur, that this is almost always for the benefit of the clients. I mean the lawyers know the case, at this point, this is almost always for the benefit of the client, allowing them to speak and to be heard.

Then both sides go back to their individual rooms. And then kind of the shuttle diplomacy begins with the mediator going in and out of the rooms. Now, again, my top folks, of course, they’re there to talk about money, you know, that’s understood, but my top folks really begin to unwind the conflict. Sometimes it’s almost like the stages of dying, you know, you have to go through a progression until you get to acceptance. Very true in high-level mediations.

And then, if they are successful that day, the mediator writes up the term sheet, both sides sign it. Now, when it’s signed, I would say the vast majority of the time the parties then, for the first time…well, for the first time since the opening, come together. But now it’s not as structured and they sign the agreement. Early in my career, I heard that a successful mediation is where everyone leaves equally unhappy. But the more I’ve observed it, that’s not true. There is a relief that is palpable, that comes over the room. Because the injury may still be, there probably likely is, that the loss is still there, but this stressor, being the litigation, is now over. And that is just an amazing sort of thing to observe.

So, those are the broad outlines of the successful mediation on the day of. If the case isn’t going to settle that day, an impasse is declared, and that is an art form in itself. And then the mediator continues to work after the fact with the lawyers. And sometimes that involves bringing the parties back together for another session, sometimes it does not, but, eventually, leading to the signing of that term sheet and the case being done.

Scott: I see. You mentioned a moment ago that even if there’s not a settlement at mediation, your goal is for the parties to walk out better off than they were when they walked in. So, how is it that parties are better off when, you know, the case doesn’t get resolved at mediation?

John: Right. So, that can take many forms. One form can just be that the attorneys, or both attorneys or maybe just one attorney, has heard from the mediator, an independent, what they think of the case. You know, Greg Parent is one of my top guys, and he was an insurance adjuster, he was a plaintiff’s attorney, he was a defense lawyer, and he was involved in a personal injury lawsuit. So, he literally has worn every hat of everyone in that room. So, that gives him an extra level of credibility. And one of the things that Greg is really expert at, and he does it, of course, in a very nice way, you know, a lawyer comes in and says, “We are absolutely going to win this case on the issue of liability,” and Greg can say, “yeah, I can see that. One thing that did jump out at me is, you know, we do have this other witness over here,” and they’re “yeah, yeah. Well, that witness doesn’t know what they’re talking about,” and then Greg goes, “well, yeah. But this witness is a decorated military person. You’re trying [inaudible 00:56:25] Fayette County [inaudible 00:56:26], do you think that might…” “Yeah, you know, I really hadn’t considered it…” Right? So, they can leave with a perspective that they didn’t have when they came in.

Another way that they can leave better is…this is especially with an emotionally-charged case, with an emotionally-charged plaintiff. If the defendant can do it sincerely, apologizing that the plaintiff has had to go through what they’ve gone through, not owning liability, they don’t have to do that, but, “As one person to another, I hate that we’re here and that you had to go through that,” that can be very beneficial. So, even if the case doesn’t resolve that day, they got the, “I’m sorry.” Or they listened to, they heard what this has been like for the plaintiff.

When I was still mediating, Scott, there was a case where…it wasn’t really big, from a monetary standpoint, but one of the things…the woman injured her back and she had been pregnant at the time of the accident, had since had her baby. And I noticed that she had this piece of paper in her hand, just kept rubbing it. Her attorney had not allowed her to speak during the opening session. So, at some point, when I was in and out of the room, I said, “Would you tell me what that is?” and she’s, “oh, it’s stupid,” you know, she was like, “well, I’ve written this down.” And I said, “Would you mind if I heard it?” And the lawyer said, “Fine, you can read it to the mediator.” And it was a letter that she had written to her daughter, her infant daughter, apologizing that she couldn’t pick her up as much as she would like because it hurt her back and she hoped that, someday, she would understand.

So, I turned to the lawyer and said, “Would it be okay if the adjuster heard this?” And after some [inaudible 00:58:31], we brought the adjuster down. I said, “Now, miss plaintiff, I just want you to read that.” And she did. Now, the adjuster had tears in her eyes because she was a mom. That case ended up resolving. But even had it not, that mother, the injured mother I’m talking about, was able to express something like that in a safe space was benefit.

The last way I think that you can leave folks better off is by illustrating…and sometimes you can do this very directly, sometimes it’s more subtle, that, “You, litigants, are gonna pay a lot of money.” And while that’s great for the lawyers…I mean I used to say the best client were the ones that said, “Just keep sending me a bill, I don’t care how much I pay but I’m never gonna,” you know, “give that [inaudible 00:59:28].” You know, those are the best clients…

Scott: I’d rather pay you than pay him or…

John: That’s right. That’s rare but that often gets the parties, for the first time, seeing this whole litigation thing in a way they didn’t before. And that is beneficial. And all of this is setting the stage, hopefully, later for resolution. But even if it doesn’t, they can say, “You know what, I see things now in a way I didn’t see them before, and that’s beneficial.”

Scott: That’s very valuable. And I suppose…so, I know that you track, obviously, the cases that do work out, that don’t reach an impasse. Do you have a sense for how many cases resolve short of trial because you’ve got the ball rolling in mediation?

John: Yes, so, we do know. On the day of mediation, our company-wide settlement percentage is 67% settle on the day of mediation. Of course, that varies among different mediators and with different types of cases as well. The cases that resolve before trial are in the low 90s.

Now, I can tell you that, and most litigators will tell you this, we have every case, high 90s is gonna be every case. Right? But the difference with ADR is when they settle and what the perception of the litigants is when it does resolve. And this is what I think a lot of lawyers miss. Again, we’re in the business, we provide a service, a customer service, we want people to be pleased with the service they receive. Successful lawyers need to be thinking the same way. So, having something resolved at the courthouse steps with a lawyer that goes away all pissed off, like the party all pissed off, that’s not good for future business. Resolving it earlier in the process and having the parties feel good about the experience, that is good for future business. So, the settlement percentage is important but it is the process and the experience and the time in the process where a case resolves I think is even more important.

Scott: That’s very interesting. And yeah, the last-minute settlements usually leave everybody unhappy sometimes. Well, what’s next for you and Miles Mediation and this new reality that we’re in well?

John: Well, we’ve just signed up our first mediator in Tampa. So, our Tampa office will be coming online. Right now we’re focused on the Southeast. And I think, yeah, that’ll be our sixth office, the Tampa office. So, I wanna make sure that we are, you know, building up those offices, building up the mediators, their practices in those offices. And then we’re gonna, you know, kind of stick our head up and see where we are. My ultimate goal would be to take this national. I think that the way that we do things at Miles is different. I think it’s better for our customers, I hope they agree with that. And I think that that’s something that’s scalable on a national level. So, that’s the ultimate goal.

Scott: Well, I wish you the best of luck with that. Well, John, it’s been great. I’ve enjoyed spending time and I’ve learned a lot from talking to you today.

John: Well, thanks, Scott, I’ve enjoyed it as well.

Scott: And anything else you wanna tell the listeners before we go?

John: No, I don’t think so. Of course, I’m a big proponent of ADR, if you haven’t noticed, and…

Scott: I’ve noticed.

John: Yeah, and I would just encourage people to give that a try.

Scott: All right, I really really appreciate it.

John: Thank you, Scott.

Scott: Thanks for listening to “The Advocates Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and subscribe to this show wherever you get your audio content.

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