Doug Noll is a Fresno-based mediator providing mediation, arbitration, facilitation, and peacemaking services throughout California. He also provides online mediation services and is an internationally recognized trainer and speaker.
So what do you get when you hire me as your mediator?
First, I come to every mediation extremely well-prepared. When I read your submission, I am examining the hidden layers that you might not even be aware of. I am looking for the subtle clues that tell me why your client or the other side feels angry, disrespected, or even sad. You rightfully focus on legal rights, remedies, and defenses. I study that too, and I seek to understand the motivations, interests, biases, and emotions of the parties and of your opposing counsel.
Second, I understand that cases have to settle. But I also understand that mediation is a voluntary, self-determinative process. As I have worked through the paradox, for the mediator, of having to settle cases while letting you and your client really control the outcome, I have learned to be a decision architect. My job is to help you and your client make the very best decision possible in the light of great uncertainty, risk, ambiguity, and emotion. And, that decision must be made with an acceptance of the deep consequences to the lives involved for the years ahead. If I do those two things, I have done my job well.
Third, I connect to you and your client on multiple levels. Emotions flow through every mediation. I have learned to listen carefully, validate and vindicate where appropriate, help create meaning, and provide a safe space for your stories to be heard.
Fourth, as a broad generalist, I’ve been lucky to learn a lot. Each case is another tutorial in life, business, and finance. When you mediate your case, you want a smart, well-prepared, decision architect, not a legal specialist who has not trained or practiced as a professional mediator. My goal is to get your case settled with a deal that will stick.
Finally, I am asked to speak and teach at conferences all over the world. At these conferences, I meet my peers and we talk. You get the benefit of my international networking, because my colleagues and I share ideas, strategies, tactics, and emerging issues among us.
How do I conduct my mediations? To be completely honest, I like joint sessions. I find them very useful because I can watch the inter-personal dynamics, even if there is extreme hostility. But I recognize that you and your client may be very uncomfortable with joint sessions. All I can do is advise, not dictate. If I think a joint session would be useful, I will suggest it. Otherwise, we start in separate rooms.
I spend at least an hour, often times longer, listening to you and your client talk about the case. I am confirming, discarding, or modifying hypotheses I developed about the case. I explore both the legal and the non-legal aspects of the case. I want all of us to have a thorough and broad understanding. Most importantly, I want you and your client to have confidence that I completely understand your position and what you hope achieve.
At some point, if the mediation is a traditional distributive negotiation, we have to start the “dance.” My job here is to act as a cognitive counselor and negotiation coach. I help you and your client avoid the decisional errors that plague the majority of lawyers in negotiation. (Did you know that plaintiffs’ lawyers make bad settlement decisions 50% of the time with an average loss of $75,000 to their clients? Defense lawyers are wrong 30% of the time, but their average error is $1.4 million!).Do I evaluate? Sure, every good mediator does. But the secret is in knowing when and how to communicate my opinion to best effect. Timing is everything.
Eventually, we get to a number and then work out the details.
Most of the time settlement documentation is pretty straightforward. But there are cases that take more time beyond the initial conference. I stay with you and the case until the deal is done. Generally, I don’t charge for the post-mediation telephone and email work. I find that the mediation conference is sometimes the beginning of the negotiation, not the end.
I charge $2,400 per day in Fresno, Madera, Tulare, and Kings Counties California, I charge $3,000 per day for the remainder of rural California. I charge $5,000 per day in southern California and the San Francisco Bay area. Typically, my fee is split between the parties. I am paid in advance and have a two week no-refund cancellation policy. I So, if you have read this far, sign me up, and let’s get to work.
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When you hire me as an arbitrator, you are hiring me to make a decision, not mediate a settlement. I fundamentally believe that med-arb, or arb-med, is fraught with ethical challenges for a neutral. So role definition is very important to me. The skill set for arbitrating is very different than the skill set for mediating.
I have heard a wide variety of cases including all kinds of business cases, construction disputes, agricultural disputes, banking and finance, insurance coverage disputes, and general commercial cases. I’ve done a lot of crop loss cases, including crop insurance cases. I have sat on panels and have chaired arbitration panels.
As an arbitrator, my primary job is to render an award that will withstand judicial scrutiny. That means that:
I am scrupulous about disclosing every conflict of interest or potential conflict of interest I am aware of. If I make a complete disclosure, at least you know who you are dealing with.
I generally allow all evidence in despite objection, unless it is so speculative as to be ridiculous or it’s cumulative and a waste of time. The hearsay rule doesn’t mean much in arbitration. Having repeated the mantra of great liberality and a relaxed approach to evidence, just because I let the junk in doesn’t mean that I pay much attention to it. The proper legal terminology is giving it “the weight it deserves.”
If the case is administered under the American Arbitration Association, I strictly enforce the discovery limitations. Arbitration is supposed to be fast and efficient, which trial is not. I require a full exchange of documents and am unhappy if there is a last minute disclosure without adequate justification. If the case is administered under other rules, I follow those rules.
In large, complex cases, I may impose limitations on expert direct examination. Depending on the case, the rules, and the desires of counsel, I may also put time limits on the presentation of each case. Again, my interest is in creating a cost-effective process that works for the parties.
I render awards quickly. In most arbitration hearings of less than a week, I will have an award out within a week of the close of the hearing or final briefing. In more complex cases, it may take me a bit longer, but not much. I process the evidence as the case unfolds and ask questions along the way.
My arbitration hearings are relatively informal affairs, and I accommodate third party witnesses as much as possible. Testimony via telephone or Skype or the like, although not optimal, is acceptable to me. I do not like unprofessional behavior between counsel. Reminds me too much of how I was 20 years ago. Be nice, at least while I am in the room.
My fee for arbitration is $3000 per day. I generally reserve a day in advance of the hearing to handle all of the pre-hearing scheduling calls and issues and a day for rendering the award. Obviously, the time increases with the case complexity.
There are disputes that cannot be resolved through litigation. Typically, these involve relationships gone awry. Or, the dispute might be in litigation, but the dynamics are such that a typical distributive negotiation will not solve the problem. These disputes include partnership and shareholder conflicts, family business conflicts, estates and trusts conflicts, and tough cases like clergy sexual abuse. They can include family law cases too.
The peacemaking process is about restoring relationships, if possible, and if not, providing a civil and respectful means of separating. I use an interest-based or integrative approach to peacemaking. Interest-based negotiation was made famous in Roger Fisher and Bill Ury’s famous book, “Getting to Yes.” However, few understand how to conduct an interest-based mediation. It takes a lot more skill from the mediator and requires a lot more work from the parties and counsel.
Most of my peacemaking work is done in joint session. Sometimes, joint sessions can become very uncomfortable with family members, for example, shouting and cursing each other. I know how to contain and control these situations and am perfectly comfortable with them. There is a fine line between shutting people down so that anxieties are contained and letting people express themselves in a constructive, if loud, way. I use ground rules and my personal gravitas to keep the process on track.
The biggest issue I see in my peacemaking work is the reluctance of people to engage in the first instance. Almost always, I am admired for doing this work by people at peace. As soon as they are enmeshed in conflict, however, they go looking for the meanest, junkyard lawyer they can find. Vengeance is the name of the game. If vengeance has come into play yet, reactive devaluation, dehumanization, and stereotyping generally has.
The good news is that conflict follows a very predictable five stage path. The peacemaking mediation process de-escalates everyone back along the path to Stage I. You probably seen situations where the conflict seemed intractable, only to have everyone kiss and settle at the end of a long day of processing. There is a reason why that happens, and my peacemaking process takes advantage of it.
So, even if you think the other side is evil, despicable, immoral, fraudulent, insane, crazy, mean-spirited, and downright nasty, have hope. If you have the courage to enter into a peacemaking process with me, you have a good chance at finding peace again in your life.
I don’t really walk on water; I just know where the stepping stones are.
What if you could make the best business deal of your life, every time! What stops you from doing it? Lack of information? Misunderstood expectations? Personality conflicts? Poor decision making processes? Plain bad luck?
In the high stakes world of mergers, acquisitions, hedge funds, venture capital, and investment banking, success often rides on the intangibles. Financial analysis and due diligence may identify and quantify the objective and quantifiable risks, but will not help you figure out if the “chemistry” of the deal is right.
Thus, an ounce of prevention is worth a pound of cure, especially in important business relationships. I have come to believe that the best way of averting disputes in business deals is to make sure that the underlying business relationship is well-established before the contract is signed. I offer a very powerful relationship-building tool I call strategic facilitation.
In strategic facilitation, the principal decision-makers and the personnel directly responsible for execution of the deal meet with me very early in the relationship. I guide the group through an interest-based conferencing process. In this process, the participants learn about each other, the history and culture of the companies, and the deeper underlying needs, desires, goals, and interests that are motivating the business deal. I am always amazed at how little the deal-makers know about the true aspects of the deal and how much they learn in this process.
Expectations are major driver in mergers and acquisitions. How well do you know and understand your own expectations of a given deal? There is a lot more involved than just making profits: For example, I might ask you:
“If this were a perfect deal, how much time would you spend on this deal after it closes?”
“If this were the best deal of your life, how would the other people in the transaction be treating you?”
“What are the five non-quantifiable ways this deal could be maximized for your needs?”
I challenge you to examine the weaknesses of the deal, as well as its strengths, with questions like:
“List the top three ways this deal could turn unprofitable?
“What are the five events that are sure to lead to business failure?”
“How do you want to respond to signs of trouble?”
“How do you want to deal with conflict?”
Through a highly structured process,you develop a deeper understanding of each other, learn how to communicate effectively, plan for and anticipate future problems, make effective decisions, and develop the skills necessary to resolve conflicts and disputes fairly and efficiently.
Many business deals are made without regard to the underlying interests of the parties. Each side “assumes” the other side will know, think, act or otherwise agree with the other. After all, they have a deal, don’t they? In truth, failed deals are based on unstated assumptions and expectations when left unfulfilled lead to frustration and conflict. With foresight, this type of conflict can be avoided.
For example, two companies agreed to create a strategic alliance. During a strategic facilitation process, they learned that their actual interests were substantially different than what they had both assumed. As a result, the direction of the deal completely changed. Had they not engaged in the strategic facilitation process, the deal would have collapsed because of unstated assumptions and expectations that each company held about the other.
Strategic facilitation is particularly useful in complex deals such as industrial construction projects. In one case, a city let out a bid to construct a wastewater treatment plant. The bid was awarded and immediately after the award, the city’s construction management and design team met with the prime contractor’s construction superintendent, managing principals, and key subcontractors for strategic facilitation. During the day-long process, the parties identified their respective interests and needs, agreed upon their respective obligations and responsibilities, walked through the plans and specifications, agreed upon procedures for submissions and approvals, identified potential problem areas, defined lines of authority and communication, and agreed upon a dispute resolution process. The facilitation process uncovered some design issues that would have exploded on the parties during the course of construction. Through strategic facilitation, the parties were able to resolve the design issues very early, avoid costly claims, and insure efficient prosecution of the work. The agreements were incorporated into a memorandum of understanding that governed the course of construction. The multi-hundred million dollar project was completed on time and on budget with minimal conflicts and disputes.
In a large business acquisition, the strategic facilitation process uncovered issues unknown to all of the parties involving the merging of product lines. As a result, significantly more planning resources were dedicated to that aspect of the deal and a potential disaster was turned into a heretofore unseen profit center.
I start every strategic facilitation with individual conferences and personal analysis to understand the dynamics of the deal. The individual meetings lead to a joint conference that may take up to several days, usually at an offsite location convenient to the participants.
Over the course of the conference, business relationships are solidified as people learn more about their own motivations and expectations and share common interests with each other. My secret is uncovering unstated assumptions and expectations, and learning to communicate clearly. The conference is followed by my report out of the conference summarizing what was learned and setting out the action steps agreed upon by the parties. To the extent desired, I work with the financial and legal advisors as a process consultant to help craft the final deal consistent with the goals identified at the conference.
The process is another tool to improve bottom line performance of business deals. Engaging me in this process can yield surprisingly large returns.