Top 3 Misconceptions Attorneys Have About Virtual Mediation

by Winter Wheeler

Although largely unknown to the average litigant, alternative dispute resolution providers across the country have offered virtual mediation services for upwards of a decade. The sudden increase in the popularity of these virtual services is, of course, due to COVID-19. The pandemic’s restrictions on travel and in-person gatherings have brought virtual mediation to the forefront of litigation.

At the start of the pandemic, litigants considered virtual mediation a stop gap that would keep the legal system going until they could get back to “normal,” but now virtual mediation is cemented in the savvy litigator’s playbook. Its ease and convenience have proven it a viable and consistent option, superior to the now potentially risky in-person model. Based on the overwhelmingly positive feedback I have received from lawyers, parties, and claims representatives alike, virtual mediation will continue in full force post pandemic.

Virtual mediation is convenient, saves on travel time and costs, and is just as effective as the traditional model for most cases. During this time of litigation slowdowns and court closures, virtual mediation has kept litigation moving forward and helped to clear desperately overrun court dockets. It has come to the rescue of those who are simply unwilling to risk in-person mediations or any type of jury trial right now. Yet despite all the amazing benefits of virtual mediation, there are still people who are too afraid to even try the exercise.

These are the three most common misconceptions I hear and my concern-busting responses:

1You cannot build rapport with people on a virtual platform.

But of course, you can! It is late 2020 and you would be hard-pressed to find anyone without some form of social media presence, but even less likely to find someone who did not feel connected to a person on the internet that they have never actually met. Consider that if you have ever had a crush on a television or movie star that you have only ever seen on screen, they were able to connect with you while not even communicating with you directly.

Plus, and most important, mediators are professionals trained to deal with all types of personalities, situations, and adversities. What may be impossible to someone not professionally trained to mediate, and experienced in doing so virtually, can simply be a non-issue to an experienced virtual mediator.

You can overcome this hesitation by spending some time researching your mediator online. Look into their online presence and see if it resonates with you. If it does, great. Give them a shot. If they seem unable to connect with people online, maybe look elsewhere.

2You cannot tell if participants are paying attention.

This is actually true. The lawyers cannot tell if the other participants are paying attention, but the mediator—who spends significant amounts of time with everyone—can. Opposing parties typically only spend a few minutes together during an opening session where brief statements and presentations are made. Emotions often run high on mediation day, so it is entirely possible that the parties are not listening to the other attorneys when they speak. Or, of course, it may just look like they are not paying attention. Many people work hard to hide their emotions on mediation day.

Regardless of whether the parties are listening to each other during opening statements, the mediator is certainly paying attention and can and will address the relevant issues and ensure that the parties know and understand exactly what is going on. We have an ethical duty to do just that. So, this fear is not one that should prevent you from mediating virtually.

You can also minimize this worry by doing your personal best to create a welcoming atmosphere for the opposing party. This can be a daunting task after months or years of litigation, but if you take advantage of your opening statement, you can drastically cut the tension between the parties. Never forego an opportunity to create a positive rapport directly with the opposing party! Remember that for the average litigant, mediation day is the most important day of their life. They have agreed to a process that will potentially replace their jury trial. Compassion and empathy will go a very long way.

3It is too easy for participants to leave and give up.

It may technically be easier for participants to leave because they just have to click a button to successfully exit the meeting, but I have actually found that people are more committed and will stay longer to work through their issues. The simplest explanation I have been given for this is that because people log into the virtual mediations from locations that are comfortable to them, there is a decreased sense of urgency to leave that might otherwise exist if one were many miles from home. For example, there is no desire to beat rush hour, nor need to get to daycare on time. Everyone is focused more intensely on the task at hand, and less on the clock.

Plus, in the rare event that I have experienced a participant leaving a virtual mediation, they each quickly returned and hoped that their departure had not yet been announced to the opposing side. Contrast that to an in-person mediation where a participant angrily and dramatically storms out of an in-person mediation for the benefit of opposing counsel watching them do so. It would be nearly impossible to get that person to return, simply as a function of their pride. When this is done virtually, usually the mediator is the only person to know it has happened and loss of pride in returning is a non-issue.

Remember, not all mediators are created equal. A negative experience with one has no bearing on the process of virtual mediation as a concept. If you have tried it once and did not like it, consider letting your mediator know what your concerns were. The mediator likely has an explanation for you of why something happened in the way in which it did. Be sure to ask all the questions you need. n

Winter Wheeler is a civil litigator who brings an extensive and comprehensive body of experience to the Miles panel of neutrals. Prior to joining Miles Mediation & Arbitration, Winter was a senior attorney at a prominent midtown Atlanta law firm. Throughout her career, she has worked closely with her opposing and co-counsel to bring cases to a fair and just resolution. She is skilled in handling complex matters involving a diverse range of cultures, including Spanish-speaking clients.

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PROFESSIONAL PROFILEOF THE MONTH 2020 2020

BE YOURSELF, BE IN THE MOMENT Gavin Long Combines Careful Planning with Gut Instinct for Big Wins

by Dan Baldwin

“A trial is a live, human event. You need to be more concerned about building a relationship with your team (jurors) than the exact phrasing of the words—after all, 93 percent of communication is nonverbal. To do that, you need to let go, connect and be willing to make a mistake. You must be engaged, not worried. That’s the key to where many of the victories are found,” says Gavin Long, Partner at Bisnar Chase Personal Injury Attorneys.

Bisnar Chase represents people who have been seriously injured or lost a family member due to an accident or a defective product and people who have been denied employment rights. The firm consists of nine attorneys divided into four litigation teams led by an experienced personal injury trial lawyer and includes a combination of paralegals and legal assistants.

Since joining the firm in April 2012, Long has handled a large number of catastrophic injury cases, taking a number of those cases to jury trial, and winning an overwhelming majority of those cases. In 2019 he secured approximately $16 million in jury verdicts for his clients. In a recent case, he secured an $11 million jury verdict against a rehabilitation center wrongful death where a man committed suicide because of terrible care provided by the rehab center. The defendants never offered more than $450,000. The $11 million jury verdict is the largest negligent care/suicide verdict in California history.

In his next trial, he received a $5.3 million jury verdict where the defense only offered $125,000. Long’s client was riding a motorcycle when the accident happened. The defense hired a team of experts to say the accident would not have happened if his client was not speeding. The jury disagreed. “We’re basically David fighting Goliath. We’re fighting large corporations and insurance companies that have a lot of resources and manpower. We just have to out-lawyer them.”

A juror in a case Long handled stated, “We were given a very straight-forward presentation on both defense and plaintiff’s side; and Gavin Long did a hell of a job in presenting the plaintiff’s case. He was ‘Johnny on the spot’ with all the questions. I was very impressed. If I needed something like that, I would want him to be my attorney.”

Long’s approach has worked well for his firm and his clients.

Long was named Orange County Trial Lawyer of the Year in 2016 for a $3 million jury verdict he received in a case where the defense only offered $100,000. His client was standing in the street when he got hit by an oncoming vehicle. The police found the client at fault; however, the jury disagreed.

Long says, “I enjoy the challenge of taking on the big guys to represent the little guys. It doesn’t matter how much money they have or how many lawyers they have, the jury system evens the playing field.” Currently, Long is handing a variety of cases, including auto defect cases where the clients have been killed or paralyzed as a result of a defective car; rehab and home facility negligence cases where people have died as a result of poor treatment and other catastrophic injury cases.

AUTHENTICITY IS KEY TO VICTORY

“I learned the importance of being authentic. Be yourself. Don’t emulate someone else. Don’t get tied to scripts. Go with what’s in your heart and what comes out organically in the moment as opposed to being married to scripts or ‘I gotta’ act like a lawyer,” Long says.

Long learned early on to remain flexible with the ability to shift focus or even strategy when opportunities show up unexpectedly. “A trial is a life lesson. A trial is a human event. Unfortunately, as you go through law school you learn to be a rigid ‘cookie cutter’ attorney—‘lawyer’s lawyer.’ That’s not what works in real life trials. It’s the basics of being human—being open, being connected, being there for the jurors, caring about the jurors, caring that they get it and move to action,” he says.

This is one of the reasons Long does not have a second chair during trial. “If I have someone else speaking, I am losing out on an opportunity to build the relationship with my team.”

He notes that representing people in David vs. Goliath situations is a delicate balancing act. “A contingency trial practice is a risky business, but it’s also one of the most rewarding. Big verdicts change bad behavior. But, if you lose, you don’t get paid and you lose all the money you invested in the case. That’s another reason why other firms that don’t have the financial resources for an expensive fight joint venture with Bisnar Chase,” he says.

Not surprisingly, one of Long’s favorite movies is Rocky, in which the underdog with few and very limited resources achieves greatness. Long says, “The life lessons that came out of that movie apply to anything you want to be successful at—from knitting to bullfighting.” “You better have passion and perseverance. With plaintiff’s trial work, you will lose sometimes despite your most spirited effort. It is painful, but you need to get up, learn and move on. However, when you win a tough one, it sure is a beautiful experience.”

His legal career has been marked by a dedication to hard work and working with his clients but in getting to truly know them—to be authentic. He has a wide range of jury trial experience in cases from murder to medical malpractice in state and federal courts. During 2016 he took six personal injury cases to trial and obtained verdicts above the defendant’s offer in those trials, beat the plaintiff’s CCP 998 and “busted” the defendant’s insurance policy in five of the trials. Long achieved two of the top 100 jury verdicts in California for 2019.

Long is an Orange County native. He graduated from Servite High School in Anaheim where he played football. He graduated from the University of Southern California in 1996 and from Whittier Law School in 1999. He was a recipient of the American Jurisprudence Award for securing the highest grades in his study of Torts and Evidence.

He was appointed to the Consumer Attorneys of California’s (CAOC) Board of Governors and currently sits on the Board of Directors for the Orange County Trial Lawyers Association. He is a member of the American Board of Trial Advocates (ABOTA), an honor bestowed only on the most elite group of lawyers in the nation. Long is an Avvo 5-Star Rated attorney specializing in personal injury, dog attacks, brain injuries, car accidents and wrongful death cases. He was a legal presenter for Santa Clara County Trial Lawyers Association. He was also awarded the 2019, 2020 Lawyers of Distinction honor. He is recognized by The Best Lawyers in America for work in Personal Injury Litigation–Plaintiffs and Product Liability Litigation–Plaintiffs

Long is a member of the top one percent of attorneys in the nation who are members in this oldest and most prestigious organization in the country. He has also won the honor of Top Gun and Trial Lawyer of the Year with the Orange County Trial Lawyers Association.

He says, “What I have done, and I still work on, is not acting like a ‘lawyer’ in the sense of the stereotype people don’t like. I’ve done a pretty good job of getting rid of that, which has allowed me to be open and be available to the jurors while telling a story passionately. Nothing more important.”

That sentiment is reflected in many of the comments Long receives from his clients. The following is a typical example.

“Dear Gavin, I just wanted to thank you again for taking on this case. It meant so much to me and our families. You were so positive from the get go. Your hard work, dedication and passion certainly showed through during this whole process.

You were absolutely brilliant. So, from the bottom of my heart Thank You, Thank you!”

Long says, “I love the competition. It’s a wonderful experience when you’re fully engaged, but not exactly sure where you are going moment-by-moment. You could get hurt. You could lose. It could be painful, but you have a belief, a passion and a fire to know you can do something special. And, when it all works out in the end, everything you have worked for becomes real and everything you have believed in becomes validated. That feeling is priceless. Thank God I am doing something that allows me to feel that way.”

Long and his wife, Rebekah, have been happily married for 21 years. They enjoy traveling, ocean activities, working out, going to the beach, snow skiing and other outdoor activities. His favorite movies include stories of people overcoming adversity, such as Rocky, Braveheart, or Miracle. n

Contact H. Gavin Long Partner-Trial Lawyer Bisnar Chase 1301 Dove Street, #120 Newport Beach, CA 92660 (800) 561-4887 www.BestAttorney.com