An Insider’s Guide To Mediation
One of the nation’s top mediators, Jeff Kichaven explains this increasingly important process—and his own unique approach to it.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
Mediation is having a moment. Numerous headline-making conflicts are currently in or headed for mediation—everything from Russia v. Ukraine to Israel v. Hamas to Trump v. CBS Broadcasting, Inc.
What is mediation? Black’s Law Dictionary defines it as “a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.”
But beyond this basic definition, I realized that I didn’t know a great deal about how exactly mediation works, even though I consider myself reasonably knowledgeable about the law and legal processes. And I suspect that some of my readers, especially folks who aren’t commercial litigators, might feel the same way.
So as I generally do when I want to learn more about a subject, I reached out to an expert. Earlier this month, I interviewed veteran mediator Jeff Kichaven (pronounced KITCH-ay-vin, where “KITCH” rhymes with “which” and “ay” rhymes with “way”).
A graduate of UC Berkeley and Harvard Law, Jeff has worked as a mediator for almost 30 years. He’s ranked in Band 1 by Chambers, with respondents praising him as “highly skilled and knowledgeable,” “very sophisticated,” and “excellent on insurance issues”—in short, “one of the most professional neutrals in the U.S.A.”
Before becoming a mediator, Jeff practiced as a litigator for 15 years. He was inspired to enter mediation after seeing it succeed in one of his cases.
“The lawsuit had been pending for over three years,” Jeff recalled. “The mediator settled it in six hours—and the client was thrilled.”
I asked Jeff to walk me through the process of mediation, starting from the beginning. How does the ball get rolling? How does a case wind up in mediation?
“Lots of different ways,” he explained. “The most common is that judges might think that certain cases are taking up too much of their time, so they suggest mediation—and we know there’s no such thing as a ‘suggestion’ from a federal judge.”
But a nudge into mediation can come from other sources as well. It could come from a client—a chief legal officer, general counsel, or business executive, who has concluded that a case is consuming too much time and money, distracting the company from business goals. Or it could come from lawyers, who feel that they’ve brought the case to a point of diminishing returns—where further investment likely won’t change the final outcome much, making prompt resolution desirable.
When lawyers choose a mediator, they consider experience, reputation, potential conflicts, and other factors—including one factor that Jeff believes deserves more consideration, the mediator’s personality or style.
“I wish more lawyers would get on a quick phone or video call with a mediator they’re considering, just to make sure that they’re compatible and feel comfortable with this person,” he said. “If someone in the mediation doesn’t get along with the mediator for personal reasons, that mediator won’t be very effective.”
And one factor that Jeff thinks is overrated is subject-matter expertise: “What’s the difference between a novice and an expert in any area of law? Forty-eight hours.”
Mediators are used to picking up subjects quickly. What they really need to understand are the rules of evidence and civil procedure, through which the substantive issues get filtered.
“That’s why I focus on process, not preaching,” Jeff said. “Lawyers know the law, and lawyers know their cases. My job is to structure a conversation where they can use that knowledge to get results.”
Once the parties and their lawyers have agreed to work with Jeff as their mediator, they figure out scheduling, in terms of both the briefing and the mediation itself. They also decide whether the mediation will be done remotely, using a platform like Zoom, or in person—in which case they need to settle on a location. (Jeff is happy to travel anywhere in the continental United States for a mediation—and as he explains on his website, he doesn’t charge extra for travel time or expenses.)
Ahead of the mediation, the parties will send Jeff their briefs. He recommends a “shared” brief, which will go to both him and opposing counsel, and a supplemental “confidential” brief, provided only to him. The confidential brief allows each side to share with Jeff a more candid assessment of the case, knowing that it won’t be seen by the other side.
Also in advance of the mediation, Jeff will have calls (by phone or Zoom) with the lawyers. They’ll discuss the case and their clients’ positions, including the issues to be focused on during the mediation, and how the mediation will be conducted. This involves resolving a few key issues.
How long will the mediation last? The most common options are a full, eight-hour day, or a half-day, four-hour mediation. Jeff charges a flat fee of $12,000 for a full day or $8,000 for a half-day, with no additional charges or fees (unless the mediation runs over the allotted time, in which case he bills hourly).
Will clients be in attendance at the mediation? This is Jeff’s strong preference, considering that the client will ultimately have to sign off on any resolution of the case. And sometimes the client can benefit from hearing difficult truths from the mediator, a neutral third party.
Will any part of the mediation be a “joint session,” with all parties discussing the case with the mediator? Or will it all be the mediator meeting separately with each side and going back and forth, so-called “shuttle diplomacy”?
The general trend in the mediation world is away from joint sessions, Jeff said—and they can have certain disadvantages. You can get vigorous advocacy in joint sessions, which sometimes antagonizes the other side and leads to a full-blown argument. (One critical skill for mediators is the ability to manage joint sessions effectively, allowing the parties to express their views without things spiraling out of control.)
There may be some cases where emotions and tensions are running so high that a joint session doesn’t make sense. But Jeff doesn’t dismiss joint sessions out of hand—and generally favors having at least some part of the mediation as a joint session, even if just to address a narrower set of key issues. The problem with shuttle diplomacy is that it gives rise to a “hearsay” problem: is the mediator accurately conveying the other side’s view? Or have important pieces of information gotten lost along the way, as in a game of “telephone”?
This can apply not just to the substance of the other side’s positions, but the style of their delivery—including non-verbal aspects of communication.
“In a shuttle-diplomacy situation, sometimes the lawyer for one side will ask me, ‘Do you think they’re bluffing?’ And I generally have to say, ‘I don’t know—you should look those other lawyers in the eye and judge for yourself.’”
The day of the mediation will begin as discussed by the parties, with joint sessions (all sides and the mediator), private sessions (with the mediator and one side at a time), or both. The goal, of course, is to hammer out terms for resolving the case.
If the parties do reach agreement on a resolution, Jeff strongly recommends not concluding the mediation without signing a document confirming the material terms as a contract, as opposed to merely having an “agreement to agree.” Otherwise, the parties could get involved in a subsequent dispute over how they agreed to resolve their original dispute.
If the mediation doesn’t conclude with an agreement, that doesn’t mean it “failed,” nor does it mean that the mediator did anything wrong. There are some mediators who really try to force the parties into a settlement, but that’s not Jeff’s approach.
“Self-determination is one of mediation’s key values,” he explained. “People need to make their own decisions. Parties have a constitutional right to a jury trial, and I’m not here to bully them out of it. If they decide they’d rather take their chances in court—and they make a clear decision to do so, in a calm and informed environment—that doesn’t make the mediation unsuccessful.”
At the same time, it’s very satisfying for Jeff when he’s able to help parties reach an agreement to settle their case.
“When a case is stuck, mediators have both the skill and the motivation to help,” Jeff said. “When mediation works well, it’s a thing of beauty for both the lawyers and their clients.”
Disclosure: Thanks to Jeff Kichaven Commercial Mediation for sponsoring this post. Chambers-ranked and Harvard-educated, Jeff is the trusted closer for high-stakes disputes. His battle-tested system of managed communications empowers clients to make clear, strong decisions in a calm, informed environment. It makes the right resolution obvious. If settlement seems impossible, call him.
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world, as well as the ability to comment on posts. You can reach me by email at davidlat@substack.com with any questions or comments about Original Jurisdiction, and you can share this post or subscribe using the buttons below.