Profile of the Month: Michael Myers
1. How often do you have cases that involve mediation?
About 50 to 60 percent of my cases are mediated. I always have cases that are in some stage of mediation.
2. What qualities do you look for in a mediator?
Subject matter knowledge is important. I like for the mediator to have some subject matter knowledge. For example, if it’s a disputed liability slip and fall case, then it’s important for them to have an understanding of the applicable voluntary standards, coefficient of friction, etc.
It’s also very important that the other side has respect and enthusiasm about using the mediator. The mediator might be the best in the world, but if the other side doesn’t want to use him, then it’s not going to work. Both sides have to be equally enthusiastic about the mediator who is selected.
For the past 15 years, I’ve used the same four or five mediators to the exclusion of others. If I have a case in another venue, I will use someone new. But I don’t stray very far from that group of four or five mediators.
3. How strongly do you push to have a mediator you propose be accepted by the other side?
First I propose the slate the of potential mediators. It might be a slate of two, three, even four mediators. I don’t push very hard to get the other side to agree to my choice of mediators. If it’s an exercise in salesmanship on my part to get the other side to grudgingly agree then I’m laying the foundation for a potentially unsuccessful mediation.
I don’t want to have to sell anyone. The other parties have to be comfortable and feel the same way about the proposed mediator. Once I start selling the mediator, naturally there is a reaction that poses questions: Is this mediator neutral? Why does mike want this one person so much? Pushing to use a particular mediator always raises questions.
4. How important is pre-session communication with the parties?
In some cases, it’s highly important to have a pre-session communication with the parties, and in other cases, it’s a waste of time. If there are special issues involved, then the pre-session communication is valuable.
In my experience pre-mediation sessions are important where there are client control problems and/or other issues that can’t really be brought up in mediation submissions that may have a big impact on case resolution.
5. How important is it for the mediator to follow up if the mediation doesn’t result in a settlement?
The follow-up phase is situational and depends on how close the parties are to reaching settlement. If the parties are close but haven’t reached settlement, it’s important that the mediator follow-up sooner rather than later. If the gap is too big then no amount of follow-up will get that case settled. But follow up in these cases that can’t be settled may help narrow issues for trial or yield an alternate mechanism like arbitration.
6. What ADR topics would you like to see discussed at an ADR-related CLE?
I would like to see a CLE on alternative bargaining strategies and how brackets are being used.
7. Tell me more about you and your practice.
My practice comprises cases – 90% personal injury, 5% professional negligence, and 5% commercial.
8. Are there any issues or trending topics that you would like to discuss?
There are a few issues that need to be examined.
Minimum insurance limits need to be reconsidered by the state legislature. For example, current insurance limits are set at ($25,000 per person/$50,000 per accident). This is hardly enough coverage when an average night for a trauma victim at Harborview costs more than $25,000.
Another area that needs to be examined more closely is the extent to which companies are liable for the actions of their independent contractors. Companies such as Amazon, FedEx, Uber or Lyft use independent contractors because they seemingly get the benefit of that talent pool and labor force without having the same level of responsibility, financial obligation and risk. This is currently a big issue in our personal injury practice.