Interview With Rick Mikels

A Student Who Became a Mediator, Proud Supporter, and Former Chair of Your Mediation Committee

Hon. Judith K. Fitzgerald (ret.)
September 13, 2019

On Aug. 5, 2019, I had the enlightening opportunity of discussing mediation with Rick Mikels, a seasoned bankruptcy practitioner whose appreciation for the nuances of mediation is remarkable. Rick was one of the first students of the ABI/St. Johns 40-Hour Mediation Training Program, an intensive five-day course that focuses on bankruptcy issues while educating participants about the concepts and techniques available to mediators. This experience — and his own sense of the importance of negotiation in assisting parties in resolving differences without litigation — enhanced his desire to become more involved in mediation training and education. As part of his many professional activities, Rick helped develop this Mediation Committee, for which he served as chair, and led to his becoming a sought-after mediator. This is what Rick had to say in question-and-answer format.

Rick, how did you become interested in mediation?

I have always had a particular skill in finding solutions to problems among disparate parties. Over the years, I’ve recognized that anyone who practices bankruptcy law, especially on the debtor’s side, needs that skill. As I practiced law, I became interested in the nuances of what people say and how they express their true interests. It turns out that such listening skills are a central component to becoming an effective mediator. Often, it makes sense to have a third party, who has no interest in the dispute, guiding the parties to a resolution. That is what I enjoy doing most. I suppose I was always interested in mediation without knowing it.

Do you participate in other forms of dispute resolution?

I have done arbitration, but I really prefer mediation, because a mediator helps parties decide what is in their best interests. A mediator can aid parties in the exploration of a broad range of possible solutions. This may never happen in litigation or arbitration, where the result is designed to be more binary: Someone wins and someone loses.

Do you co-mediate?

I did one co-mediation early in my career with a former bankruptcy judge. Both of us were being considered for a pro bono mediation and we both wanted the experience, so we talked to the parties and suggested a co-mediation. The parties thought it was a good idea, and it worked out beautifully. The matter was about the resolution of a recovery action. Both of us were inexperienced mediators. Fortunately, our approaches meshed well and the process worked out for the parties. I haven’t had the opportunity to co-mediate since then but would like to try it again.

What was your first solo mediation about?

It was a dispute between an elderly borrower and a bank that had filed a motion for relief from stay. Neither party really wanted the home foreclosed upon, and they reached a better resolution through the mediation.

What did you do to prepare?

I was appointed to mediate on a pro bono basis by a bankruptcy judge. I talked to lawyers on both sides and set up pre-mediation conferences and accepted brief pre-mediation written materials. I read the pleadings, talked to the parties and devised a strategy for conducting the mediation. I always have a game plan and alter it as the mediation progresses.

Do you still prepare that way?

Yes. There is something different about the perspective when you are not a party — you can insulate yourself from the interests of each side and take a cold, hard look at the strengths and weaknesses of each case. You can offer different perspectives that can lead to a different conclusion than what might occur in litigation. As a mediator, I don’t want to drive parties to where I think they should be, but I do want to help them get to where THEY want to be. Quite often, they have not succeeded at doing that before the mediation. Mediation provides a safe setting wherein parties can feel more comfortable and be more open, because what happens in the mediation is confidential. This often leads to a more fulsome discussion than the parties have previously experienced.

Does your preparation change depending on the matter?

Not really, although sometimes that is driven by the parties. I make suggestions, and sometimes the parties don’t want to accept aspects of my suggested approach. For example, I always request mediation statements, but sometimes the parties decide that they don’t want to prepare them. While this has been rare, it has occurred. If I don’t receive mediation statements, there is more emphasis on the oral interviews and on pleadings already filed in the case. The problem is that adversary proceedings filed in court emphasize only the desired outcome. A mediation statement usually provides the mediator with a broader consideration of the strengths and weaknesses of each party’s case.

How varied have the issues been that you have mediated?

I am retained largely in commercial disputes, not all of which come from bankruptcy cases, although most have an insolvency element to them. I’ve done construction mediations, one of which did not involve a bankruptcy but was a dispute over the construction of a large project. While no bankruptcy was involved, there were insolvency overtones. I had another construction mediation where the debtor was in bankruptcy, but the dispute I mediated was between the debtor’s principal and a third party. Recently I mediated a complex matter with multi-party litigation, involving a dispute between third-party creditors and a trustee. The issues involved whether the creditors were true creditors or whether they held equity. If they held equity, the recipients would have to repay distributions previously made to them. Once I even mediated a marital dispute, which is outside my general wheelhouse. So, I’d say I’ve handled a broad range of issues, but I usually deal with issues that have some insolvency aspect.

How are you chosen as the mediator, if you know?

Several ways; judges have recommended me to mediate cases before them. In some cases I am recommended based on my reputation. Some come from people I know who are familiar with my skills as a mediator. Others have been as a result of my teaching or lecturing. For example, my position on the faculty of the St. Johns/ABI class has led to referrals from students.

Do you charge the same rate for every mediation that isn’t pro bono?

As time goes on, my rates are increasingly more consistent. I strive for consistency, but sometimes circumstances may impact rate.

Do you have a standard form mediation agreement?

Yes — but parties often make suggestions for changes. The finished product does not always look exactly like the document I sent out.

What are the parts of it that you would say are critical?

Definitely the confidentiality and mediator immunity provisions. I have never had anyone suggest that those should be taken out.

Have you ever NOT been paid by a party who was supposed to pay?

I can’t recall. I know I’ve sent reminders, but I’ve never sued anyone to recover mediator fees. I usually will ask the law firm to help collect the payment if the client doesn’t pay. Sometimes I receive an undertaking from the law firm to pay if the client doesn’t pay.

 You’ve been active with the St. Johns/ABI mediation training. In fact, I took that course because you recommended it so highly. Is it designed for the newbie or for experienced mediators?

Really, for both. Every class has had both experienced and inexperienced mediators, and it seems to work for both. There is benefit to both, as the lessons teach a particular perspective and help develop valuable skill sets. For the experienced mediator, the classes break down what is already known and then puts it back together with the enhanced skill set that the class is designed to convey. I had no experience conducting mediations when I took the course. After the course, I felt very comfortable in the mediator role.

What about that program is something that you recommend to people who are thinking of becoming mediators?

I tell everyone that he or she will learn to listen and practice being a mediator. Mediation is not just about assessing the case. It is also understanding the parties and helping them get to a mutually acceptable place that both sides can live with. The exercises are designed to teach particular skills, and Elayne Greenberg is an incredibly good teacher. She gets people to understand and apply what she teaches. The course is taught from a bankruptcy perspective. Although the skills can be used elsewhere, the class focuses on the use of mediation in bankruptcy cases. Many of the students go on to serve as mediators. It also is helpful to professionals representing parties in mediation.

Have you taken other comprehensive training?

No; I do the St. Johns/ABI program every year as part of the faculty. I find that I always learn new things every year.

Do you feel that your mediation background helps you in other forms of dispute resolution or litigation?

Yes — especially in negotiation. Of course, the skill set is important in all aspects of dispute resolution.

What would you say are the salient crossover features in various types of dispute resolution?

Listening skills are very important in dispute resolution of any kind. The parties are usually starting from opposing perspectives, and how they weigh particular factors can be very different. In such cases, a mediator needs to break through the communication barriers that are natural when people are fighting. I think at least 50 percent of litigation disputes are really communication misunderstandings due to either lack of understanding or lack of listening. Those can often get resolved when people open up to hear what the others are really saying. Sometimes this can be hard to do because of the high emotions that have developed. Of course, sometimes every party understands another side’s position perfectly well and the parties just do not agree. Those disputes require a different approach by the mediator.

Have you been involved with any mediations that used a nonlawyer as a mediator?

No, but I have had pro se participants. That has affected the way I approach the mediation. I have found it difficult to deal with pro se parties. With a lawyer, the mediator can ask about the elements of the cause of action or points of evidence, but with pro se participants, it’s not so easy. Many of them should have a lawyer, and they can’t easily articulate the legal aspects of the case. Also, the mediator has to be careful not to inadvertently influence the pro se participant improperly.

Have you been a participant in a mediation other than as the mediator? If so, what did you look for in your mediator?

Yes, I have. I like to watch how other people handle the mediation, because not everyone works the same way. I like to see what they’re doing and figure out why and whether it works. One mediator I worked with separated the parties and they never spoke to each other through the entire process. I was surprised that it worked in that instance. I usually try to put everyone together first, then have the principals talk about the facts. I find that quite often there aren’t as many disputes on the facts as the parties thought there were. Of course, the mediator has to control the process to be sure it doesn’t get out of hand. If the parties agree on the facts, that sets tone of conciliation and helps them agree on other things later on. I use this technique often when there are primarily legal disputes.

How do you prepare your clients for the mediation?

I tell them what to expect, what the goal of the mediation is. I discuss the facts and law with them so I’m not surprised at what they say at the mediation. I explain the mediator’s role and the benefits of the requirement of confidentiality, because they have to be comfortable in the mediation. They can’t make the best use of the time at the mediation without that information.

What advice do you have for someone who is considering becoming a mediator?

I recommend they take a course, and I particularly suggest the St. Johns/ABI course for bankruptcy mediators. There are some articles by Ed Dobbs that I read before every mediation as a reminder of what a mediation should be. Ed’s articles are in the St. Johns/ABI course materials. They originated in 2011 from materials prepared for the ABI Annual Spring Meeting, and an update was published in 2013 for the ABI Southeast Bankruptcy Workshop. The article is called “Mediation in Bankruptcy Cases: A Mediator’s Perspective.”

What is your favorite story in the mediation realm?

I really felt good about helping to avoid the foreclosure I mentioned earlier. That was a situation where the debtor did not trust the bank and discussions were stuck. Helping the parties get through the roadblock was very gratifying. It always is.

Do you have any closing comments?

I would remind people not to overlook the fact that mediation can be a positive step in litigation, as it can narrow the issues and help the parties think creatively about the case. Even if the parties do not settle on the day of the mediation, the mediation might impact the dynamics between the parties in a way that leads to a resolution of the issues later on.

I’d like to add that before I became a mediator, I thought my skills in resolving issues would make mediation irrelevant because if a mediator could resolve the dispute, then so could I. But I’ve learned that the role of a mediator is not the same as the role of a representative of the parties. Every mediation I’ve been to representing a party has been beneficial because it changed the dynamic and the thought process. So I have become a huge proponent of the mediation process, even though I was a skeptic before I took the course and started my career as a mediator.

Rick, thanks for taking the time to let our readers hear your perspectives on mediation.

This interview originally appeared in the ABI Mediation Committee Newsletter (August 26, 2019), published by American Bankruptcy Institute, and is reprinted by permission. Copyright © American Bankruptcy Institute. All rights reserved.

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