Mediating With Goliath

• Publication year: 2018
• Author: By Jeff Kichaven

Mediating with Goliath

By Jeff Kichaven

Jeff Kichaven is an independent mediator with a nationwide practice, based in Los Angeles. He is "Ranked in Chambers USA 2018" as one of the very finest mediators in the country. He has also been named Best Lawyers' "Best Mediation Attorney in Los Angeles" (2015) and "California Lawyer Attorney of the Year" in ADR (2006). He is an Honors Graduate of Harvard Law School (1980) and a Phi Beta Kappa Graduate of the University of California, Berkeley (1977). His views on mediation have been cited in The New York Times and The Wall Street Journal. While he has mediated nearly every sort of civil dispute in his 23-year ADR career, he has particular expertise in Intellectual Property, Insurance Coverage, and Professional Liability cases.

How can solos and small-firm lawyers—the Davids—ever get a fair shake in mediation against the Goliaths? Actually, it's easy, and this article will explain how.

First, let's ask, who are these "Goliaths" whom the solo and small-firm "Davids" fear? Are they your big-firm opposing counsel? The international corporations and insurance carriers you're suing? No. If you're well-prepared and conscientiously put your client's interests ahead of your own, big-firm opposing counsel and their hoary clients won't scare you.

I learned this in dramatic fashion from a small-firm "David" who was actually named Don. Don's clients had a legal malpractice claim against a senior partner in a big firm, the kind of firm that has its name on the side of its building. This defendant was represented by two senior partners from another big firm, which also has its name on the side of its building (probably several buildings across the country). We had four mediation sessions spanning fifteen months. The two big firms tried to wear Don down, but he wore them down instead. His clients received a large, fair, settlement.

Afterward, Don told me his secret, the key to his approach. He said that he'd been in small firms for his entire forty-year career, almost always against large opponents. As he recounted it to me, his mentor taught him always to remember that it comes right down to—whether it's the key deposition, standing up in court on major motions, trial—it's always really just one lawyer against one lawyer. If you're better prepared, there's nothing to fear.

One lawyer against one lawyer! Like Dempsey against Tunney, the Dodgers against the Giants, Evert against Navratilova, it's a battle of titans and a fair fight. No, big-firm opposing counsel and their clients are not the "Goliaths" the small-firm "Davids" fear.

Rather, the "Goliaths" the small-firm "Davids" have to fear are, sadly, mediators. If the mediator is against you and aligned with your big-firm opponents, you're on the short end of a two-on-one, and the fight is not fair.

Over the years, countless solo and small-firm "Davids" have expressed this concern about mediators. This fear will never go away. Solo and small-firm "Davids" will always ask, "How can we protect ourselves from the risk the mediator will put his thumb on the scale for the big guy, the repeat player, the fellow member of his establishment?"

To find the answer, we first need to identify the source of the mediator's potential power to tilt the scales against you. Then, we can figure out what to do about it.

While this may surprise you, the source of the mediator's potential power to tilt the scales against you is... You! Yes, your own decisions and conduct in the mediation are what give the mediator the...