Attorney at Law Magazine Los Angeles Publisher Sarah Torres sat down with Jeff Kichaven to discuss what drew him into becoming a mediator.
AALM: What drew you to become a mediator?
Kichaven: In the mid-1990s, as a litigator, I had an intractable case which my client nonetheless was eager to settle. We negotiated over and over with opposing counsel and got nowhere. A longtime lawyer friend suggested we try this newfangled mediation thing. Well, after over two years of litigation, we settled in six hours. The client was delighted. I resolved to learn more. Anything that could generate that much client satisfaction so quickly was worth learning. Eventually, I decided to move from the side of the table to the head of the table, full-time. I have never looked back.
AALM: What benefits do you believe mediation offers clients and attorneys alike?
Kichaven: In mediation, lawyers and clients cement the attorney client relationship as they settle cases. Clients need lawyers they deeply know and trust. Lawyers need clients they deeply know and trust, too. Mediation allows clients and lawyers to collaborate shoulder- to-shoulder as nowhere else in the litigation process. That collaboration yields the knowledge and trust of each other that benefits them both. Settlements are the natural by product of the mediation process. When clients participate actively in the fashioning of those settlements, as they do in good mediations, they appreciate not only the result, not only the process, but, critically, the performance of their lawyers along the way.
AALM: Tell us about the SCMA amicus brief you co-authored and its impact on maintaining confidence in the mediation process. Kichaven: California’s absolute confidentiality rules for mediation will ultimately destroy public confidence in our process. Under current rules, if a lawyer or a mediator commits malpractice in the mediation, the client cannot sue the negligent lawyer or mediator for the damage. That damage, from the leaking of a confidence, or the incorrect drafting of a settlement agreement, could be huge. But, the client has no remedy! There is more due process at Guantanamo than there is in a California mediation. Ultimately, the public will catch on, lose confidence in mediation, and take their disputes elsewhere. I’m working to change these ridiculous rules before it’s too late.
AALM: What is the best compliment you’ve received or the funniest story you have?
Kichaven: There is one compliment I value above all the rest. It’s when a lawyer’s client, at the end of the mediation day, thanks me for listening to them and treating them with respect. In courts and depositions, these clients rarely feel listened to or respected. They can speak only when spoken to, and only in response to narrow questions on legally-relevant topics. In mediations, by contrast, these clients get to address a wide range of topics, and in their own words. These clients want nothing more than for the neutral authority figure to “get” them. When a mediator listens attentively and responds appropriately, these clients “get gotten.” It helps set the atmosphere for productive, creative negotiations and, ultimately, settlements. These clients also appreciate their lawyers for having brought them to such a positive process. If the mediator can, in a few short hours, set that atmosphere, and be acknowledged for the skill and technique that these results require, it means the world.
AALM: What do you find most rewarding in your day-to-day work as a mediator?
Kichaven: There’s a magical moment in the mediation that is hugely rewarding. It’s that moment when the dispute loses its “fresh wound” status and begins its slide into the “ancient history” of someone’s life. It’s the dramatic climax of the mediation. It’s that moment after which there is no need to argue, to debate, to anguish. You are in the denouement toward settlement. That moment happens at different times, and for different reasons, every day. But, there is no mistaking it. People’s tone of voice, their body language, even their breathing, changes. Though there will still be challenges before a settlement is reached, everyone knows that you can meet those challenges. When you feel that shift, you know that you have really helped someone. That magical moment is the mediator’s most rewarding experience.