Ep 66: Preparing Emotionally for Mediation with Sherman Criner (Part 5)

Mark, welcome to the catastrophic comeback podcast with American Injury Lawyer Clark speaks helping you find hope, purpose and joy after a catastrophic injury. We mediate a lot of cases. We so we have a lot of cases, and we do mediations a lot on a very regular basis, and and even for us, a lot might be, I don't know, five or six a month, something like that, you know. And how many mediations do you do in a month?

Oh, I mean, I've done 1000s. I've been mediating since the mediation kind of program started in the like mid 90s, early 90s in North Carolina. I don't know. I do one to two a day, yeah, so what? So

my point is five to 10 away. That's, that is what gives you, I would think that that is what gives you a lot of insight into the value of cases and what cases resolve for big cases and small cases, catastrophic cases and other kinds of cases, is just doing it every single day, focusing on the value of these claims on almost every single day. Yeah.

And one thing I want to be clear on too is that the mediation process is confidential, so if you go to mediation and the case does not settle, whatever happened at mediation cannot be admitted in court. And the purpose for that is it encourages everybody to be open and honest and work really hard to try to settle the case. And so there's that confidentiality aspect of mediation. The other thing with the mediation as I go in, is I never assume I know everything as I'm sure I've mediated for you. And there are facts or things that you know about the case that you're not going to tell me, and there may be things such as, and I don't want to be kind of depressing or whatever, but I know of mediated cases where somebody has gotten like a cancer diagnosis, and it's a bad cancer diagnosis, and they know that they've probably got a year left, and they don't want to be dealing with a case for the next year, and they know that, you know, they're going to ultimately pass away, and so they want to settle that case that day, You know. And if the other side knew it, then they may, you know, not settle the case, or maybe not offer as much, because there may be a factor of life expectancy in the case and so. And there's times when, you know, there's other things, I could go through other examples, but you know, I know there are times that I don't know everything of why people are settling a case. My job is not to evaluate things or to make assumptions. My job is to relay information and try to help the parties come to an agreement. The agreement, though, is between the parties. One thing earlier, and I was kind of trying to find an opportunity to kind of interject this. And so I'm interjected here may not flow real well with the what we're talking about, but since people may have not been through mediation, is that we keep talking about being there, and things have changed since covid. Oh, yeah, is that it used to be prior? Is that all the parties were there and then when covid came out, you know, we we had to social distance, and it really caused a problem with the court system. And so for a while, things just shut down. And then ultimately, what the North Carolina Supreme court mandated was that we do these electronically, and so we defaulted to typically doing zoom. There's other type of media out there that we've done it, whether it's WebEx or FaceTime or whatever it could be even do a telephone conference. But zoom works well, from the standpoint is there's that video aspect of it where you can see the person, and while it's not live, it's still better than just voice. And they actually that had been the default up until, I think may 1, and as of May 1, it's gone back to the default being live. But the parties can, of course, still choose to do zoom. So I say all that so that if anybody out there, you know, ultimately sits in at a mediation, we're kind of in a hybrid world now. It could be live with everybody at the mediation, or it could be a situation where some of the people are by zoom and some people are live, or it could be all by zoom. So, you know, it's just like we talked about keeping up with technology. You know, you do an excellent job keeping up with technology. Being here today on a podcast is a prime example of it. But also we've done, you know, mediations by zoom, and it also has helped us keep the cases moving forward, where, in the past, you know, say something came up and somebody needed to cancel something because they couldn't attend. Now they can attend by zoom, so it doesn't have to be canceled. It can, you know, default to zoom and stuff. So scheduling

these things can be months out. So that is a big. Help? Yes, in terms of trying to keep things moving

correct, it's helpful to be able to use whatever we can. I mean, even text and during mediations, phone calls, whatever we can do. It's technology is a tool. And we sign documents through Hello sign, you know, so people can sign them on their phones and stuff, because, you know, when you do reached agreement at mediation. It is binding, and so you want to make sure you know you can read and talk to you through your attorney about everything.

Well, so as we're wrapping up, I wanted to, I'm thinking about it from the perspective of an injured person, and if they're, if they're, if they're looking at this and they're thinking, Okay, I've got to take care of my medical treatment. I've got this long, physical road of recovery. I've got I'm not in the best frame of mind. I've got to deal with my mental health, my emotional state, and then, you know, I don't know if I can do the things that need to be done to deal with this financially, to deal with this legally, you know. And a lot of people, I remember preparing people for trials before and and that's a stressful thing for them. It's such the idea of and I always am thinking, we're going to prepare you. We're going to, we're going to, you're going to know what questions they're going to ask you. We're going to, you're going to have a good idea with your of your responses. You don't have to remember two versions. You're just going to tell the truth. There's nothing for you to there's no there's no question that a defense lawyer is going to ask you, like on Perry Mason or Matlock or whatever the new shows are, or they're going to jump out and you're going to and you're going to go, Yeah, okay, I'm not hurt. You know, there's, there's, there's really not. And so let's and looking at mediation. Is there any reason for injured people to look at that and and be stressed and be afraid and be and feel like they are going to this is something that they can't do?

No, it's kind of a work session. But I'll tell you this Clark is I've sat in mediation twice as a participant, and I felt the feelings that the people have when they're sitting there, and I know the feelings, and I tell them that is that I understand you're anxious, you're nervous. It's any time you go through something, for the first time, there's an unease, because it's, it's not familiar to you, and so it's the first time they, I mean, it's what you and I do on a daily basis, so it's not going to be stressful for us or something. It's just what we do, but it's new to them, and they're sitting there with people they haven't seen before. They're hearing things presented. They're going to be put in a position to make a decision. And they usually tell people is they're not going to be sitting there going, like, Yes, this is awesome. This is what I really want to do. I tell people is that you're probably going to have a couple different decisions that you can make, and none of our none of them are going to be really great decisions. What you've got to do is figure out what works best for you, is like, what's the least bad decision to make? That makes sense. And I'm not trying to say it's just that nobody wants to be sitting where you're sitting in a mediation and choose to be there. No, you would not choose to be there. The other thing when you were talking about being in court, I don't know if you've ever been questioned on the stand, but I've been questioned on the stand, and attorneys are smart, and it is a lot easier for us to ask questions than it is for us to be, I mean, for us to ask the questions, and for us to be asked the questions. And you get up there, and we know what to expect. You know, we talk for a living, and you get somebody who, you know, they're in a courtroom. They're in a courtroom full of strangers. Everybody is staring at them. It is super quiet, and you've got somebody up there asking you questions, and they're kind of walking, you slow this, you know, down this slow road, and they get you to where they're gonna get you saying things that you didn't mean to say necessarily, or kind of sounds like you're contradicting yourself and you didn't want to. A lot of times, I'll hear people at mediation, and they'll say, Well, I just want to go to court. I want to go to court to prove I'm telling the truth. Well, the truth doesn't always come out of court. What happens in court is both sides present their evidence and the judge or the jury makes a decision. There's no ultimate finding of truth. And I tell people is that if you go to court and the jury or the judge finds against you, it's not going to change what your present perception was, but it's going to change what the reality is of, you know, what the verdict is. And so, you know, I just, I think sometimes people are overconfident of their ability to kind of convince people in front of a jury, and I don't know if you find that to be the case. I mean, it's, it's very difficult.

So, so I so I understand. So as as my as, as I'm approaching mediations, it sounds like there's some things that I can do better. As we're talking about this, I'm learning some things that I can do better going forward. For example, I can put. Prepare my clients. You know, with the idea in mind that it can be stressful and and that these are some things that we can do to eliminate or reduce the stress that you're feeling, but at the same time, it sounds like to me that what you're saying is preparation. Preparation will resolve a lot of those stressors. If we have the things that we need to demonstrate value at mediation, and we have prepared our client to think about these consequences of their decisions, and we're there to guide them, to help them make good decisions, then those seem to be some very important components of mediation. Is that fair?

It is? And I think, you know, y'all do a good job of where you just kind of need to think is that, while we do this on a daily basis, they've never been and so sometimes I tell people, when people contact me, you know about I've got a mediation come up, what should I expect? And I'll tell them things such as, first of all, dress comfortably, okay? And when I say dress comfortably, you know, a conference room may be hot and may be cold, and it may vary throughout that day. So, you know, bring a jacket, bring a blanket. You know, some people tend to be cold. Some people need to be be hot. Some people have a hard time sitting the entire time. So, you need to bring a pillow or something to sit on, or if you need to get up and stand or walk around, people seem to have more dietary issues these days than in the past. And so you know, if there's things that you need to bring, you know, if you're doing a keto diet, or if you're, you know, have to eat every two hours. You know, bring something so you get through, because you want them to be as relaxed and as comfortable as possible. There's a lot of downtime. Sometimes I tell people, it's like, you know, if you're a cross Stitcher, bring a cross stitch because there's a lot of downtime. You know, bring a book if you want to read. If anything, it just helps them relax. You know, to be and, you know, I mediate at your office a lot. You've got a very clean, comfortable office. Bathrooms are located right across from the conference room. You've got the coffee bar and the water and some snacks, generally available for people. One of the things is that, you know, you've even got that TV that typically has the screen saver of kind of, for lack of better word, like tropical locations and sometimes tropical fish and things. So it's relaxing and soothing, because people are very anxious, and whatever they can do to not be as anxious in that scenario, because you don't want people making an emotional decision. Typically, when people are emotional, they make bad decisions. And so part of my job as the mediator is to help people work through emotions. And so there's people I come in and, you know, mediate with that are just angry as they've ever been, and I don't try to get them to hide from that anger. I try to get them to work through that with me, let it out. I mean, get it through and get to the other side. And, you know, obviously I'm not there for counseling, but I want them to express that same thing with sometimes people are emotional. They want to cry, and that's fine. You know, everybody handles stressful situations differently, and I don't want them to keep them to have that bottled in. I want them to have that release throughout the process, so that hopefully by the end of the mediation, they're in as best of a mental frame of mind to make the best decision they can. Because what I'm not vested in them settling the case or not settling the case, what I'm vested in is when they leave, and I mean both sides, that they feel like they made the best decision they could that day.

So So then being relaxed is an important thing for us. For example, our conference rooms, it's set up in the conference rooms that are available to us. One of them is called, we call it our informal conference room. And it doesn't have like a conference table, and it's got like a, you know, couch and a couple of chairs and TV and snacks and Netflix and that kind of stuff. And the reason is because we don't, we're not trying to say this isn't important. We want them to be relaxed. My experience has been whereas mediations might last all day or several days, or you might have one and then another and then another, especially in a catastrophic case, for most of the time. You're not really talking about meaningful numbers in the sense that we're, you know, they're gonna say $10 and you're gonna say $100 million and and you're only going to be getting down to business, sort of towards the end. So if you're at your maximum, heightened, ready for battle, kind of mental condition to really analyze some important do some heavy lifting and do some heavy work, then that you're going to wear out. You're going to burn out by the time you get to a point where you're making those decisions. So we want people to. Be relaxed and to be comfortable and to be able to, you know, have a clear and relaxed mind going into decision making time, because that crunch time is where you really got to be able to focus, and you really got to be able to make a good decision. And

I like that. I know the room you talk about, the informal one, the other conference room you have is a very long table. I mean, it's a traditional conference room. It's probably seats, what, 1214, people. I mean, it's a very long table. And there's kind of a positional dynamics that can occur in setting in a room. So like, you know, typically, if I come in, since I'm the neutral, I sit at the head of the table. I mean, you sit on one side, and the defense sit at the other side. And so positionally, it looks like I'm sitting in the seat of power. I mean, just because, positionally, I'm sitting at the head of the table. And I think again, that lends to a little bit of like intimidation for the plaintiff, is that they look at me and, you know, I'm sure they're like, Okay, this guy, you know, what's his role today? Is he going to be sitting here judging me and judging things? What I like about when we get into the other room, which you've got, like a leather couch, some other chairs and stuff sitting around, it's just, it's more informal. And that's really, it helps me, help them that they're more relaxed. They're not looking at me as an authority figure. Rather, they're looking at me as somebody who's just talking to them about their case. So I like, you know, round tables, I like informal settings like that, or more comfortable settings, because again, the more comfortable and relaxed somebody is, the more they'll listen to the information that's being shared so that they can make a good decision.

Well, Sherman, thank you so much for being here.

I really appreciate it. I think you've given us some really valuable information that'll be helpful to a lot of people. So thank you very much. It's

my pleasure to always enjoy working with you and be happy to stop back by anytime.

I appreciate it. You bet thank you for joining us, and we'll see you next time you.

Mark, welcome to the catastrophic comeback podcast with American Injury Lawyer Clark speaks helping you find hope, purpose and joy after a catastrophic injury. We mediate a lot of cases. We so we have a lot of cases, and we do mediations a lot on a very regular basis, and and even for us, a lot might be, I don't know, five or six a month, something like that, you know. And how many mediations do you do in a month?

Oh, I mean, I've done 1000s. I've been mediating since the mediation kind of program started in the like mid 90s, early 90s in North Carolina. I don't know. I do one to two a day, yeah, so what? So

my point is five to 10 away. That's, that is what gives you, I would think that that is what gives you a lot of insight into the value of cases and what cases resolve for big cases and small cases, catastrophic cases and other kinds of cases, is just doing it every single day, focusing on the value of these claims on almost every single day. Yeah.

And one thing I want to be clear on too is that the mediation process is confidential, so if you go to mediation and the case does not settle, whatever happened at mediation cannot be admitted in court. And the purpose for that is it encourages everybody to be open and honest and work really hard to try to settle the case. And so there's that confidentiality aspect of mediation. The other thing with the mediation as I go in, is I never assume I know everything as I'm sure I've mediated for you. And there are facts or things that you know about the case that you're not going to tell me, and there may be things such as, and I don't want to be kind of depressing or whatever, but I know of mediated cases where somebody has gotten like a cancer diagnosis, and it's a bad cancer diagnosis, and they know that they've probably got a year left, and they don't want to be dealing with a case for the next year, and they know that, you know, they're going to ultimately pass away, and so they want to settle that case that day, You know. And if the other side knew it, then they may, you know, not settle the case, or maybe not offer as much, because there may be a factor of life expectancy in the case and so. And there's times when, you know, there's other things, I could go through other examples, but you know, I know there are times that I don't know everything of why people are settling a case. My job is not to evaluate things or to make assumptions. My job is to relay information and try to help the parties come to an agreement. The agreement, though, is between the parties. One thing earlier, and I was kind of trying to find an opportunity to kind of interject this. And so I'm interjected here may not flow real well with the what we're talking about, but since people may have not been through mediation, is that we keep talking about being there, and things have changed since covid. Oh, yeah, is that it used to be prior? Is that all the parties were there and then when covid came out, you know, we we had to social distance, and it really caused a problem with the court system. And so for a while, things just shut down. And then ultimately, what the North Carolina Supreme court mandated was that we do these electronically, and so we defaulted to typically doing zoom. There's other type of media out there that we've done it, whether it's WebEx or FaceTime or whatever it could be even do a telephone conference. But zoom works well, from the standpoint is there's that video aspect of it where you can see the person, and while it's not live, it's still better than just voice. And they actually that had been the default up until, I think may 1, and as of May 1, it's gone back to the default being live. But the parties can, of course, still choose to do zoom. So I say all that so that if anybody out there, you know, ultimately sits in at a mediation, we're kind of in a hybrid world now. It could be live with everybody at the mediation, or it could be a situation where some of the people are by zoom and some people are live, or it could be all by zoom. So, you know, it's just like we talked about keeping up with technology. You know, you do an excellent job keeping up with technology. Being here today on a podcast is a prime example of it. But also we've done, you know, mediations by zoom, and it also has helped us keep the cases moving forward, where, in the past, you know, say something came up and somebody needed to cancel something because they couldn't attend. Now they can attend by zoom, so it doesn't have to be canceled. It can, you know, default to zoom and stuff. So scheduling

these things can be months out. So that is a big. Help? Yes, in terms of trying to keep things moving

correct, it's helpful to be able to use whatever we can. I mean, even text and during mediations, phone calls, whatever we can do. It's technology is a tool. And we sign documents through Hello sign, you know, so people can sign them on their phones and stuff, because, you know, when you do reached agreement at mediation. It is binding, and so you want to make sure you know you can read and talk to you through your attorney about everything.

Well, so as we're wrapping up, I wanted to, I'm thinking about it from the perspective of an injured person, and if they're, if they're, if they're looking at this and they're thinking, Okay, I've got to take care of my medical treatment. I've got this long, physical road of recovery. I've got I'm not in the best frame of mind. I've got to deal with my mental health, my emotional state, and then, you know, I don't know if I can do the things that need to be done to deal with this financially, to deal with this legally, you know. And a lot of people, I remember preparing people for trials before and and that's a stressful thing for them. It's such the idea of and I always am thinking, we're going to prepare you. We're going to, we're going to, you're going to know what questions they're going to ask you. We're going to, you're going to have a good idea with your of your responses. You don't have to remember two versions. You're just going to tell the truth. There's nothing for you to there's no there's no question that a defense lawyer is going to ask you, like on Perry Mason or Matlock or whatever the new shows are, or they're going to jump out and you're going to and you're going to go, Yeah, okay, I'm not hurt. You know, there's, there's, there's really not. And so let's and looking at mediation. Is there any reason for injured people to look at that and and be stressed and be afraid and be and feel like they are going to this is something that they can't do?

No, it's kind of a work session. But I'll tell you this Clark is I've sat in mediation twice as a participant, and I felt the feelings that the people have when they're sitting there, and I know the feelings, and I tell them that is that I understand you're anxious, you're nervous. It's any time you go through something, for the first time, there's an unease, because it's, it's not familiar to you, and so it's the first time they, I mean, it's what you and I do on a daily basis, so it's not going to be stressful for us or something. It's just what we do, but it's new to them, and they're sitting there with people they haven't seen before. They're hearing things presented. They're going to be put in a position to make a decision. And they usually tell people is they're not going to be sitting there going, like, Yes, this is awesome. This is what I really want to do. I tell people is that you're probably going to have a couple different decisions that you can make, and none of our none of them are going to be really great decisions. What you've got to do is figure out what works best for you, is like, what's the least bad decision to make? That makes sense. And I'm not trying to say it's just that nobody wants to be sitting where you're sitting in a mediation and choose to be there. No, you would not choose to be there. The other thing when you were talking about being in court, I don't know if you've ever been questioned on the stand, but I've been questioned on the stand, and attorneys are smart, and it is a lot easier for us to ask questions than it is for us to be, I mean, for us to ask the questions, and for us to be asked the questions. And you get up there, and we know what to expect. You know, we talk for a living, and you get somebody who, you know, they're in a courtroom. They're in a courtroom full of strangers. Everybody is staring at them. It is super quiet, and you've got somebody up there asking you questions, and they're kind of walking, you slow this, you know, down this slow road, and they get you to where they're gonna get you saying things that you didn't mean to say necessarily, or kind of sounds like you're contradicting yourself and you didn't want to. A lot of times, I'll hear people at mediation, and they'll say, Well, I just want to go to court. I want to go to court to prove I'm telling the truth. Well, the truth doesn't always come out of court. What happens in court is both sides present their evidence and the judge or the jury makes a decision. There's no ultimate finding of truth. And I tell people is that if you go to court and the jury or the judge finds against you, it's not going to change what your present perception was, but it's going to change what the reality is of, you know, what the verdict is. And so, you know, I just, I think sometimes people are overconfident of their ability to kind of convince people in front of a jury, and I don't know if you find that to be the case. I mean, it's, it's very difficult.

So, so I so I understand. So as as my as, as I'm approaching mediations, it sounds like there's some things that I can do better. As we're talking about this, I'm learning some things that I can do better going forward. For example, I can put. Prepare my clients. You know, with the idea in mind that it can be stressful and and that these are some things that we can do to eliminate or reduce the stress that you're feeling, but at the same time, it sounds like to me that what you're saying is preparation. Preparation will resolve a lot of those stressors. If we have the things that we need to demonstrate value at mediation, and we have prepared our client to think about these consequences of their decisions, and we're there to guide them, to help them make good decisions, then those seem to be some very important components of mediation. Is that fair?

It is? And I think, you know, y'all do a good job of where you just kind of need to think is that, while we do this on a daily basis, they've never been and so sometimes I tell people, when people contact me, you know about I've got a mediation come up, what should I expect? And I'll tell them things such as, first of all, dress comfortably, okay? And when I say dress comfortably, you know, a conference room may be hot and may be cold, and it may vary throughout that day. So, you know, bring a jacket, bring a blanket. You know, some people tend to be cold. Some people need to be be hot. Some people have a hard time sitting the entire time. So, you need to bring a pillow or something to sit on, or if you need to get up and stand or walk around, people seem to have more dietary issues these days than in the past. And so you know, if there's things that you need to bring, you know, if you're doing a keto diet, or if you're, you know, have to eat every two hours. You know, bring something so you get through, because you want them to be as relaxed and as comfortable as possible. There's a lot of downtime. Sometimes I tell people, it's like, you know, if you're a cross Stitcher, bring a cross stitch because there's a lot of downtime. You know, bring a book if you want to read. If anything, it just helps them relax. You know, to be and, you know, I mediate at your office a lot. You've got a very clean, comfortable office. Bathrooms are located right across from the conference room. You've got the coffee bar and the water and some snacks, generally available for people. One of the things is that, you know, you've even got that TV that typically has the screen saver of kind of, for lack of better word, like tropical locations and sometimes tropical fish and things. So it's relaxing and soothing, because people are very anxious, and whatever they can do to not be as anxious in that scenario, because you don't want people making an emotional decision. Typically, when people are emotional, they make bad decisions. And so part of my job as the mediator is to help people work through emotions. And so there's people I come in and, you know, mediate with that are just angry as they've ever been, and I don't try to get them to hide from that anger. I try to get them to work through that with me, let it out. I mean, get it through and get to the other side. And, you know, obviously I'm not there for counseling, but I want them to express that same thing with sometimes people are emotional. They want to cry, and that's fine. You know, everybody handles stressful situations differently, and I don't want them to keep them to have that bottled in. I want them to have that release throughout the process, so that hopefully by the end of the mediation, they're in as best of a mental frame of mind to make the best decision they can. Because what I'm not vested in them settling the case or not settling the case, what I'm vested in is when they leave, and I mean both sides, that they feel like they made the best decision they could that day.

So So then being relaxed is an important thing for us. For example, our conference rooms, it's set up in the conference rooms that are available to us. One of them is called, we call it our informal conference room. And it doesn't have like a conference table, and it's got like a, you know, couch and a couple of chairs and TV and snacks and Netflix and that kind of stuff. And the reason is because we don't, we're not trying to say this isn't important. We want them to be relaxed. My experience has been whereas mediations might last all day or several days, or you might have one and then another and then another, especially in a catastrophic case, for most of the time. You're not really talking about meaningful numbers in the sense that we're, you know, they're gonna say $10 and you're gonna say $100 million and and you're only going to be getting down to business, sort of towards the end. So if you're at your maximum, heightened, ready for battle, kind of mental condition to really analyze some important do some heavy lifting and do some heavy work, then that you're going to wear out. You're going to burn out by the time you get to a point where you're making those decisions. So we want people to. Be relaxed and to be comfortable and to be able to, you know, have a clear and relaxed mind going into decision making time, because that crunch time is where you really got to be able to focus, and you really got to be able to make a good decision. And

I like that. I know the room you talk about, the informal one, the other conference room you have is a very long table. I mean, it's a traditional conference room. It's probably seats, what, 1214, people. I mean, it's a very long table. And there's kind of a positional dynamics that can occur in setting in a room. So like, you know, typically, if I come in, since I'm the neutral, I sit at the head of the table. I mean, you sit on one side, and the defense sit at the other side. And so positionally, it looks like I'm sitting in the seat of power. I mean, just because, positionally, I'm sitting at the head of the table. And I think again, that lends to a little bit of like intimidation for the plaintiff, is that they look at me and, you know, I'm sure they're like, Okay, this guy, you know, what's his role today? Is he going to be sitting here judging me and judging things? What I like about when we get into the other room, which you've got, like a leather couch, some other chairs and stuff sitting around, it's just, it's more informal. And that's really, it helps me, help them that they're more relaxed. They're not looking at me as an authority figure. Rather, they're looking at me as somebody who's just talking to them about their case. So I like, you know, round tables, I like informal settings like that, or more comfortable settings, because again, the more comfortable and relaxed somebody is, the more they'll listen to the information that's being shared so that they can make a good decision.

Well, Sherman, thank you so much for being here.

I really appreciate it. I think you've given us some really valuable information that'll be helpful to a lot of people. So thank you very much. It's

my pleasure to always enjoy working with you and be happy to stop back by anytime.

I appreciate it. You bet thank you for joining us, and we'll see you next time you.