EP 910- Ask The Mediator with Jill Bollwerk

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom where the trial lawyers of the Simon Law Firm break down what it takes to win in the courtroom and in life.

Elizabeth Lenivy:

Hello and welcome back to another episode of Heals in the Courtroom. I’m Liz Lenivy, and today I’m joined by Elizabeth McNulty, Mary Simon, and a very special guest, Jill Bollwerk. Welcome, Jill.

Jill Bollwerk:

Thank you. Thanks for having me.

Elizabeth Lenivy:

We’re so happy to have you on. And just for the listeners who may not have the pleasure of knowing you, you are a plaintiff’s attorney here in St. Louis. I feel like I’ve known you for, are we going on 10 years now?

Jill Bollwerk:

I met you at the Manna Convention.

Elizabeth Lenivy:

That sounds right. And I sat

Jill Bollwerk:

Next to you and I was like, “How are you? “

Elizabeth Lenivy:

Who are you?

Jill Bollwerk:

Well, you

Elizabeth Lenivy:

Were just by yourself when I

Jill Bollwerk:

Started talking to you.

Elizabeth Lenivy:

And that perfectly sums up who you are of being welcoming and friendly and also a kick-ass lawyer. And I’m so excited because we’re going to have you on to talk about the newest endeavor that you have undertaken professionally, which is providing mediation services. Just so the listeners know a little bit more about you and what your background is, can you tell us about … I’ll start with education.

Jill Bollwerk:

Yes. I have a Bachelor’s of Arts in Radio and Television from Southern Illinois University Carmale, SIU Salukis. So I was originally going to be the next Jane Pauley, which for the younger people, that’s like Katie Couric. That’s who I was going to be. And I was a DJ, which is kind of funny. PJ the DJ, because my last name was Pozoni. So I couldn’t do JP the DJ. I was PJ to DJ. DJ the

Elizabeth McNulty:

DJ. Amazing. Fun.

Jill Bollwerk:

Yes. Yes, it was fun. And then I had to take a law class in part of broadcasting. I had to take broadcast law. And I love studying it. And I started thinking. And so my professor was a lawyer and I went up and talked to him. He’s like, “You’d be really good at that. You should try to go to law school.” So that’s how I … I mean, I didn’t grow up wanting to be a lawyer. I grew up wanting to be the next Jane Pauley, which I feel like I am right now with this microphone in front of

Elizabeth Lenivy:

Me. You are. You totally are. Okay. So you discover that your path is different than maybe what you had planned. You go to law school. Can you tell us a little bit about your legal career since then?

Jill Bollwerk:

Okay. Well, I graduated from school in the middle of the year and I was taken to LSATs and decided I wanted to work in a law firm to see what kind of law I wanted to do. So I hooked myself up with Kelly Temporaries. So I became a legal secretary and worked for Don Summers, who was this fantastic trial attorney. Had no clue that I wanted to do that kind of work and just watched him try cases. And he was just like the poor man. He had throat cancer when I worked for him. And he would try a case with water and he’d have to constantly drink, but he just brought me to tears every time he got up there and talked about his clients. And I was like, “Oh, I think that’s what I want to do. ” So then I decided, then I went to law school at night because I liked my job so much and I thought, “Hey, this is great.

I don’t have to go into such debt if I keep my job.” So I did night law school for four semesters and then went full-time after that because I couldn’t take it anywhere. I couldn’t do it for four years. It’s really hard to do that night school stuff. So then when I got out of school, I worked for a small plaintiff’s firm and had two kids. And then after the second one was told they couldn’t afford me anymore. So then I went to work for Ted Hoffman, who’s another great trial attorney, and he let me try all the cases that he knew we were going to lose. And I tried all kinds of cases and lost every one of them, and it was really depressing. So then after that, I had a case against Robbie Toft. I don’t know if you know her, but she was a managing attorney for a company called USF&G, which became St. Paul’s, which became Safeco, which became Travelers.

So I worked.

So she hired me away. I had a trial against her and she beat me, of course, because I never won there. And she said, “Hey, if you’re looking for another job, we’ve got a position in St. Louis.” And I thought, “Well, maybe I’ll try that side.” So I did the defense side for just about two and a half years. And I liked it because they had a local presence. And so I knew the adjusters, they listened to me. I always paid cases that were a reasonable amount of money. And I paid cases that I thought our clients were at fault for, and I fought the cases that were … And so I won all the time there.

Mary Simon:

Oh, that’s awesome.

Jill Bollwerk:

But I still knew I was a plaintiff’s lawyer. I would call pro se litigants because I would also … I did litigation and work comp, and I’d call the pro se litigants and I’d almost be helping them. And I think a couple of them hired me after I went out on my own, which is probably-

Mary Simon:

They’re like, “What’s your number?” Yeah,

Jill Bollwerk:

Exactly. But the catalyst for me getting out of there and going back to the plaintiff’s side was, again, it was something that happened. The company got bought out by St. Paul, and I went from 40 litigation files and 100 comp files to a hundred litigation files and 200 comp files and no race. And I had two little kids. I couldn’t do it. At that point, I’m like, “God, I bounced around. I want to see if I can do this myself.” So I started my own practice in 2000 and then have had partners and no partners, and I’m back to no partners, back to no partners, but an associate. Well, it’s a path.

Elizabeth Lenivy:

I mean, but it’s a great path. And the thing I like about it is it gave you the opportunity to try cases. And the loser cases are the ones you want to try when you’re just cutting your teeth.That’s the best experience is throwing yourself out there and learning, but you’ve gotten such a wide breadth of experience, plaintiff’s side, defense side, doing workers’ comp, doing PI. You’ve touched so many different parts of the law. And so now you are also mediating. And so can you tell us a little bit about that? I mean, what about mediation services, I guess, attracted you to it?

Jill Bollwerk:

I think I got trained to mediate originally and it was about 2001 or 2002 right when I opened my practice, because mediation was like a new thing.

Mary Simon:

Oh, I didn’t realize that.

Jill Bollwerk:

Yeah. It was not very used in the civil litigation. It was used in family and stuff like that. And I had a couple mediations and I really liked what I saw. So there were no local mediation trainings. So I went to a mediation, I can’t remember the guy’s name, but it was a guy that went around the country and trained mediators. And I got trained, but of course I was 35 years old, looked like I was 16. Nobody was going to hire me. Nobody did. So nobody did. So then I just kind of put it in the back of my mind. And then about 2015, I thought, okay, maybe now it’s the time to try it again. And I got trained and I couldn’t get anybody to put me on a panel. It was kind of strange. So then in 2017, I ran for judicial commission and your name’s everywhere then.

Alaris, which is now Lexitas, had reached out to me and said, “Hey, are you still interested?” And I said, “Yeah, but I feel like I needed training in. ” So I trained a third time and then I got on their panel. But I mean, I saw mediation way back when it was kind of new. And I just thought a really good mediator could really do a good service because I mean, you know, we’ve seen bad mediators and we’ve seen great mediators and I wanted to be able to help my friends and colleagues as a good mediator.

Mary Simon:

And you’ve seen both sides. You’ve worked on both sides, which in my head gives so much credibility to a mediator.

Jill Bollwerk:

And it makes the adjusters feel more comfortable when I walk in a room because I know sometimes I can sense that they’re thinking, “Oh, she’s a plaintiff’s lawyer.” Sure. But honestly, I think I critically look at cases more critically because I’m a plaintiff’s lawyer. Sure. And I usually, I think what the issue I have that makes it helpful is the fact that I know adjusters … I have friends still from when I worked at USF&G that are adjusters and they’re human beings and they’re doing their job and they’re trying to do the best they can. So I never really did look at them as the evil empire. The people that work at an insurance company are just doing their job. And so I think it’s given me empathy towards the defense that normally people would think I’d be 100% plaintiff. And don’t get me wrong, I’m a plaintiff’s lawyer through and through, but that’s not my job as a mediator.

My job is to be neutral. So I think being able to humanize the defendants and the defendants are usually just some person that made a mistake and it’s their insurance company that I’m talking to. But yes, so I think it’s given me a perspective on how to understand what goes on behind the scenes at the insurance company to understand why are they taking this position.

Mary Simon:

Do you have situations now where, I’m assuming you have cases that get mediated, right? Can you predict the outcome based on some of the language you’re getting from the mediator now or not yet?

Jill Bollwerk:

Not that. I find myself controlling my mediations more. I’m sure the mediator’s like, “Dang.” I’ll say, “They’re not done. They’re telling you they’re done. They’re not done.” It’s like

Mary Simon:

A lawyer having a lawyer for a client, a mediator,

Jill Bollwerk:

Having a

Mary Simon:

Mediator

Jill Bollwerk:

As one of the parties. They’re telling you they’re done. They’re not done. Please keep going. So from that perspective, I’ve come to learn that ultimatums that people make are ultimatums. They don’t mean anything.

Mary Simon:

I feel like I’m … Oh, I’m going to forget what mediator told me this once, but it’s similar along the lines. He was saying that negotiations begin as soon as both sides are saying no. That’s when the mediator’s like, now we have a discussion beginning because both sides are saying, “We’re done.” And that’s great. And that’s why you need a

Jill Bollwerk:

Mediator. Totally. Yeah, because as a lawyers, we’re trained, and I do this on my negotiations. We’re trained to be … We got to be strong, we’ve got to stay the course, we can’t waiver, we can’t show any sign of weakness. And then so everybody gets to that point and then nobody wants to be the one to make the move. So the mediator’s the person that’s there to help make the move. Let me take care of the ego. And a lot of times the poor clients, you know from your own clients, they just look like deers caught in the headlights sometimes like, “What is going on here?” I don’t understand that. So I think it really does make a difference in that.

Elizabeth Lenivy:

And I’m always stuck between, obviously when I go to a mediation, I am going in good faith. Hopefully we can get this resolved, but I feel like I can’t give an inch, especially in front of my client. I can’t make them think that for a second I am doubting their case. And it’s not a concern, but it is a thought that I have had. How annoyed is the mediator with me right now? Or how reasonable do I look right now? Or is there a basic understanding that I need to be the one that is strong and ready to lead us into the battle of the courtroom and I have to make sure my client knows that. Yeah.

Jill Bollwerk:

That kind of goes into the preparation I do. I don’t just walk in with the sides briefs. I schedule a phone call with both sides and I talk to them. I’m like, “Okay, is there something I need to know about your client? Do you want me to let your client tell me their whole story? Will that make them feel better?” Because people sometimes just want to tell their story and mediation’s a barrier to that because they don’t get to go to court and tell their story. And with the defense, is there something that you know about your case, but you can’t really tell me in front of your client because you’re trying to keep the client or something like that. So I prepare myself to know if there’s something underlying going on like that. I mean, I always ask people, I’m like, “Look, make sure you tell your clients before you come to mediation about the pros and cons of the case because I don’t want to do that because I mean, I will if I’m asked, but I don’t want to be the one looking like I’m questioning a lawyer.” My job is not to second guess your lawyer.

My job is to help you guys get to consensus. And so I think preparing them for the fact that, look, and there’s some cases where you’re at mediation because you have to be, and if you’re at mediation because you have to be and you don’t want to be, I just tell people, if you’re there because the federal court’s telling you to mediate, I’m not going to spend all day. I’ll try, but I’m not going to do what I normally do, which is we’re not leaving, we’re not leaving. And because it’s funny, so many of my mediations break down and I’m like, “We could have gotten this done in two more moves.” It’s a matter of preparation. And again, like I said, from mediator’s perspective, as long as your client knows going in, but don’t ever tell them, and this is the one thing, because I used to do this to my own clients.

I’m like, “I’m not doing that anymore.” We are not taking less than this amount of money because you’re going to learn things in that mediation sometimes that you didn’t know about and now you’re looking like you’re wavering off of that. So that’s something that maybe is helpful to prepare for.

Mary Simon:

Do you like getting mediation briefs?

Jill Bollwerk:

Oh yeah, I always like them. I like to have them first and then I make the phone call and

Mary Simon:

Schedule it. Yeah, that’s smart to have a phone call because I even think that it helps instill trust. I mean, obviously we know you and trust you, but if there’s ever a mediator suggested by the other side that I haven’t worked with yet, all of us do this. We all send out the email, “Has anyone ever mediated with this person? What was your experience like to kind of get a round table?” But it helps significantly for us and to talk to our client if we have a touchpoint with the mediator. So it’s not just like, “Oh, I’ve never mediated with this person before.” We’ll just take it a step at a time and it’s helpful to say, “Oh, I talked to them and here’s 10 things that I learned about who they are and their legal background and where they come from and other cases that they’ve mediated and what the outcomes of those have been.” I feel like that would help significantly to … I think more mediators should do that.

Jill Bollwerk:

Yeah. I mean, I see more do it now. I don’t know if that’s because I’m doing it, but I’ll get an email saying, “Hey, do you want to talk about this case?” I just talked to everybody. I’m like, “I’m going to call you. When’s a good time to call you? ” Because you always learn something that you’re not going to learn about the case when their client’s sitting there. They’re going to tell you something.

Mary Simon:

How about some practical tips for litigators in mediation? I just want to ask, pick your brain on these. What are your thoughts on opening statements? I don’t like them.

Jill Bollwerk:

Well, that used to be the standard. You always did them and then now nobody does them and I don’t see them hardly ever, but I don’t discourage them unless … I mean, nobody really wants to do them, so it’s not usually an issue. But if I do sometimes though, if it’s a situation where it’s pre-suit and the insurance company hasn’t met the plaintiff and hasn’t taken a deposition, sometimes I’ll just encourage a meet and greet to come and say hi. I had one recently where the defendant and the insurance company attorney and the adjuster came in and said something to the person and apologized to her and said, “Our insured is really sorry. It’s really terrible.” And it meant the world to her and that wouldn’t have happened, but I think for the most part, and I prepare my own clients that we’re just going to walk in and get going because honestly, all they’re going to do is tell you how bad your case is, you’re going to be upset, you’re going to want to leave.

Mary Simon:

It is so funny. The first time, maybe one of the first mediations I ever went to, I went to a mediation with my dad. I had no idea even what an opening statement was. I didn’t even know that was a thing in mediation. And we all went in for a meet and greet and we were all in the conference room and the mediator just went, “Okay, opening statements.” And my dad went, “Mary?” And I mean, I had no idea what … And I just went, their negligence caused an injury to my client. That’s all I said. And the mediator was like, “Good enough for me. Anyone else have anything to … ” Because I was just like, “I don’t know how much I’m supposed to be going into it. I have no idea.” I was not expecting that. I had to gather my … And my dad was laughing and the mediator was like, “I really like that.

” Just real straight to the point. That is right to the point. But in my head, I was just thinking, with the adjuster sitting there, you don’t know how much … Because in my head, the only thing that I knew is we send a confidential mediation brief and we just keep whatever’s happening in our room. It was a very, they’re over there and we’re over here type process. And in my head, I didn’t think that it could be one of those kumbaya moments where we’re all sitting there talking about it. But I haven’t had … I would say that mediators even who ask to do opening statements, it doesn’t really happen anymore.

Jill Bollwerk:

No, I can’t say that I’ve done one in years on my own cases or as I’ve never … I mean, I haven’t seen one as a mediator probably since before the pandemic. I mean, it’s been a long time.

Mary Simon:

Yeah. So Jill, you were saying earlier a little bit about ultimatums and how they don’t really mean much to you as a mediator, especially given the task that you have when you show up to a mediation. What do you wish more trial attorneys understood about the mediation process?

Jill Bollwerk:

I mean, a mediation is a process and you have to kind of trust the process because when I talk to a plaintiff, I usually tell them, if there’s no offer on the table, I’m like, “I’m just going to tell you something right now. The first offer I’m going to come in with is going to make you angry and you’re not going to like it and it means nothing.” So just that they just have to start somewhere. If you’re at 100, they’re going to be at zero. If you’re at 75, they’re going to come in at 25. That’s a percent, I mean. Sure. If you’re at 100% of the value, they’re going to come in at 0% of the value. And so then I kind of make a joke, I’m like, “Why don’t you guys kind of guess what they’re going to offer?” And usually they offer more than they guess.

So they’re pleasantly surprised and kind of takes the heat off of the … Because most people are just … I’m like, “They’re going to offer you five or 10 grand.” Just I’m telling you. And then I come in and I’m like, “They offered you 25.” You’re like, “Woo, this is great.” That’s

Elizabeth McNulty:

Smart.

Jill Bollwerk:

It’s really just framing. It’s framing things in a way that keeps people encouraged to keep going. And so I just think attorneys need to not get pissed off. I mean, they do. They get mad. They’re like, “That’s crazy. I’m walking out of here.” I’m like, “Don’t do that. Don’t walk out. You know how this works.” So that’s really just to kind of be patient because I’m going to tell you, and most mediators are going to tell you when they don’t think it’s worthwhile going

Mary Simon:

Anymore.

Jill Bollwerk:

And I’m usually right about it, but most of the time I’m wrong about it. We keep going and then I’m like, “Well, I’m glad I didn’t quit when I thought it was the time to quit.”

Elizabeth McNulty:

Is there anything that you think that lawyers can do better in order to prepare their clients for mediations?

Jill Bollwerk:

Make them sure they understand the negative points about the case, because every case has got negative points. And if you want to get the case settled, if you’re in there just because you have to be there, then obviously just tell your clients probably isn’t going to happen so they’re not upset about it. And I won’t spend six hours with it. I’ll give you two hours and then say, “Okay, we’re done.” But like I said, one thing I like to do is I like to get permission from the attorneys to talk to the client. “Can I talk to your client? Can I let them tell their story? “Because so often, like I said, when they’re ignored a lot of times, the plaintiffs are just ignored. Their attorneys are doing the talking and they’re like, ” Is that okay with you? “So I think just having them prepared to understand the process that you’re going to talk about the bad stuff in your case, it’s good that we hear it now instead of at trial.

And you do often learn about things you don’t know that they were going to raise, which is kind of the point to go to mediation. Sometimes when you don’t think you’re going to settle it, you’re going to find out a lot about the case.

Elizabeth McNulty:

What about young lawyers who have never handled a mediation before? Do you have any advice for them or things that you wish you would’ve known back when you first started?

Jill Bollwerk:

I mean, I don’t think it really matters on age. I think just, I mean, if they’ve never done one before, I would say go watch one with somebody because

It’s hard to prepare your client if you don’t know what you’re doing. And there’s videos that they put out about prepare your client for mediation are not geared to civil. They’re geared to family law mediations. And frankly, when they train you to be a mediator under the Missouri Rule 16 or whatever it is, a 16 hour Missouri seven, I can’t remember, but I’ve been trained three times. I should know. They only give you 16 hours and it’s almost, you don’t hardly get to do any kind of practical stuff. So I think before you go into your first mediation as a young attorney, you should go to a few in your subject area and they’ll let you. I mean, usually if you contact the parties and call like Lexatas or USA&M, I just like to observe a mediation. Most people will say, as long as you keep it confidential, that’s fine.

Mary Simon:

The last mediation I went to, I stepped out for whatever reason and I ran into another mediator. It was downtown and it was one mediator shadowing another one. I was like, “That would be pretty cool

Jill Bollwerk:

To do. ” So in order to be a mediator in federal court, you have to shadow like so many hours. And I shadowed Judge David. So I heard a lot of cute … Other Judge David listening to his story. Yeah, he’s

Mary Simon:

Meeting a lot of cases.

Jill Bollwerk:

Yeah. Yeah. And he was great. And I identify well with him because he and I are kind of similar in personality. We’re gregarious and most people like us. So I watched him and I’m like, “This is how you mediate when you have that. ” And then there’s other mediators that are tough guys and there’s a place for that. I

Elizabeth Lenivy:

Do have a question because I’ve had this come up more recently in some cases, the idea of a mediator’s proposal.

Jill Bollwerk:

I was asked about one of those before.

Elizabeth Lenivy:

I feel like I went almost 10 years never having one. And then I’ve had three in pretty recent memory. Yeah, they

Mary Simon:

Are becoming more common, I feel like.

Elizabeth Lenivy:

So have you noticed the trend? What are your thoughts on them? Do you do them?

Jill Bollwerk:

I don’t think that’s the mediator’s job. I mean, here’s the thing, I took the class that you have to take, but I also belong to Association of Attorney Mediators and the Association of Missouri, they’re AAM and AAMA. I can’t remember the name. They’re both national. It’s like the national and the state level and they send you to a lot of trainings and it’s really cool, a lot of stuff that you learn. And giving advice on the case is not really something that they recommend because you’re supposed to not be a lawyer. You’re supposed to be a mediator. I mean, obviously you bring your lawyer experience into, and that’s value in helping the parties evaluate. And evaluation is something, but to say, “What do you think the case is worth?” I’m probably not going to tell you that because I always say that what it’s worth is what?

12 people on a jury says it’s worth. That’s what it’s worth. That’s

Elizabeth Lenivy:

Spoken like a true trial lawyer.

Jill Bollwerk:

Oh, it’s the truth.That’s my trial lawyer coming out. I can’t tell you it’s worth what you’re willing to do to put aside this so you don’t have to litigate it anymore and your client gets finality. But I have been asked about it and I’ve kind of deflected it, not said no, but I’ve said, “I don’t really want to do that. ” I’ll tell them, “I think you’re in the ballpark. I think your offer or your proposal, your counter demand or whatever is fair, but I’m not going to say, you shouldn’t settle it for less than this because I haven’t lived that case. I don’t know the nuances that are going on behind the

Mary Simon:

Scenes.” Do you help suggest numbers? I’ve had mediators vary on that, not just a media’s proposal, but even as the parties are going back and forth, sometimes what’ll happen is I’ll find that I might have a range in mind that I know my client’s okay with, but I don’t know what the next move should be in order to keep things going and not totally show your hand or whatever you want to do because it is a process. And I’ve had some meat eaters when I say, “Well, I’m thinking about this or this, but I really want to get your thoughts.” And some medias will say, “I just want whatever your number is. ” And other mediators will say, “I think you should maybe start here and let’s see what they say.” And most of the reason why I’m thinking that is just because we’re not in the other room.

You are. So any insight to me is helpful to me, but I also have sensed there’s a difference of opinions on that with mediators.

Jill Bollwerk:

Well, it’s tricky because everything’s supposed to be completely confidential unless they tell you you can tell them. But if I have a sense of where the parties are going, and usually I don’t. I mean, no, that’s not right. I do have a sense of a range, but I never know where they’re going to stop.

Elizabeth McNulty:

Sure.

Jill Bollwerk:

So if I know a party’s goal is to get to maybe $250,000 and a defendant might have a goal of settling for somewhere between 100 and 150. If I know that and they make these moves that I don’t think are going to move the needle or are going to take the other party off, they’re going to make the suggestion and I’m going to say, “I think you ought to consider maybe offering a little more and here’s why.” And most people will listen and then they’re happy they did that, but I can’t give them enough to say they’re going to pay you 250. I can’t do that or you can get out of this for a hundred. Yeah, I can’t do that. But if I sense that one party’s getting frustrated, but I know the other party wants to settle, they really want to settle, I’m going to help with the numbers, not suggesting numbers, but help with, you might want to consider maybe moving more or less, maybe not move there yet, only to help steer the conversation, but not to suggest I know what’s going on in the other room.

So it’s tricky to do it, but it can be done in a way that helps it move along.

Mary Simon:

What are your thoughts on Zoom mediations or hybrid? I’ve also experienced lately, because adjusters are all over the country, and a lot of times in my head, I feel a little bit … What’s the right word? I don’t feel encouraged anytime I get a phone call from or an email from the defense attorney three days before the mediation that says, “Hey, just so you know, so- and-so with whatever carrier is tied up, but they are going to be available on Zoom the entire time.” And I don’t like it when it’s unexpected. What do you think about that? Do you talk to folks about that to say it’d be really better for there or do you find it that it’s really not an issue?

Jill Bollwerk:

I can’t remember the last time an adjuster … That’s not true. I had one recently where an adjuster was in the room, but usually they’re on Zoom now.

Mary Simon:

Yeah.

Jill Bollwerk:

And I just tell them, “Look, I want them on Zoom the whole time. I want them in the room with you when they’re on breaks so that you can talk about the case. I don’t want this coming in and out kind of stuff.” And they’ll do that. That’s good to know. And then I haven’t seen any difference with it really. As long as they’re there and they’re listening, it’s not a problem, but I understand what you’re saying, especially if it’s a really big case. Are they going to pay millions of dollars if they aren’t even willing to fly in for the mediation?

Mary Simon:

Yeah. No, but it does make me feel better because it makes sense with everyone’s opportunities, even in depositions and whatnot. You could be taking a really important deposition in a case and everyone’s on Zoom. That happens all the time. Now, maybe that’s something that I’m taking from this too, is have some sort of conversation with the mediator of my expectation is that the adjuster will be on the stream participating for the length of time that we’re in mediation because otherwise in my head, I have a perception of someone who it’s kind of like a third down the list while they’re working at their desk and they aren’t really totally engaged with it. Well, they’re

Jill Bollwerk:

Still doing that. I mean, but they’re doing that in the room too when you leave the room, they’re working on other stuff. That’s true.

Mary Simon:

That’s true.

Jill Bollwerk:

I mean, like I said, I haven’t seen it be a problem as long. I have seen it be a problem where like, let me call them. They’re waiting for my call and they’re not ever seeing me or talking to me, so I’m not able to establish any … I have to establish rapport with them totally because they have to trust and listen to, not listen to me, but they have to trust that I have their best interests at heart as well as the other sides. And if they don’t see me, they’re just like, “Ah, she’s just some plaintiff’s lawyer that’s doing mediation. I don’t have to be on the call.” So I would just maybe to feel better knowing that if they’re going to be on Zoom, they need to be there the whole time.

Mary Simon:

Participating.

Jill Bollwerk:

Yeah. They can’t be getting on in and out. I mean, it’s one thing if they go to the lunch break or something and they come back. But sometimes I get frustrated when, in my own mediations where the defense attorney’s like, “I don’t need to talk to them.” They gave me authority up to a certain number and I’m like, “Why are we here? Why didn’t you just tell me what that was on the phone?” Yeah.

Elizabeth McNulty:

So I’m sure with a lot of cases you mediate, a lot of cases we work on, emotions can run really high because of the conduct, because the injuries. So what strategies do you use to keep emotionally charged cases on track during your mediations?

Jill Bollwerk:

That’s the same thing, preparing for it, knowing beforehand what the emotions are. That’s why I like to say, “Is your client really upset about this? ” And sometimes the defense attorney’s like, “My adjuster’s really, really hard to crack on this one and she’s really just saying we shouldn’t pay this. ” So just myself being prepared so that I can emotionally keep the emotions down. Sometimes people have to let the emotion go.

Mary Simon:

What percentage of your mediations end unsuccessfully, but then you get a phone call, just continue to stay engaged. Is that Does that happen a lot with you or no?

Jill Bollwerk:

Yeah, it happens. I mean, most of my mediations settle at the mediation. I mean, maybe I’m just lucky, but I think it’s because I don’t give up. I just don’t give up. But no, there have been cases where somebody will say, “Look, I think I can get more money, but it’s five o’clock on a Friday. There’s nobody there anymore. Can we talk next week?” And I’m like, “Sure, we’ll talk next week.” And then, yeah, but that’s not that often. Usually I try to get it done. They start at nine in the morning usually, so you’ve got enough time to get it done before somebody leaves. But I’ve had my own mediation where I got it settled on a … It was big one and a mediator who I’m like … Everything he did, I was taking notes. He was so great. I got that case settled with him while I was babysitting my granddaughters and they were in the bathtub and one of them was pooping and I had to get him.

And then he kept on that case. He’s like, “We’re going to get this done. I’m going to call you. ” And then he called me. I’m like, “I got to take this call.”

Mary Simon:

Of course.

Jill Bollwerk:

I got to get a poop out of the tub.

Mary Simon:

Oh, that’s amazing. You can put me on hold. Talk about multitasking.

Elizabeth Lenivy:

Yeah. Let me take my grandma hat off from my lawyer hat and just give me one second. Oh, that’s amazing. That’s

Elizabeth McNulty:

Amazing.

Elizabeth Lenivy:

Okay. So I know that you are obviously bound by confidentiality, but I was wondering if within the bounds of that confidentiality, if there were any particularly memorable stories you have as in your time mediating cases that maybe you’re particularly proud of, that’s something we’re really big on, on this podcast is I feel like as women, we don’t talk enough about our accomplishments and the things that make us proud of ourselves. And so I want to throw it to you. What’s something that you’ve done as a mediator that you look back on and you’re like, “I’m awesome. I’m really proud of myself for that.

Jill Bollwerk:

” I mean, it happens a lot. When I walk out of the room and it’s settled and then one of the attorneys goes, “We couldn’t have done that without you. ” And then I’m like, “Yeah, that feels good. That feels good. Whatever you did, thank you, because we weren’t going to get that done without you. That feels good.” Because that’s why you go to mediation. You need somebody to cut through the walls we put up as litigators, because we put up walls saying, “Your case stinks, my case is great, your case stinks. I’m never going to do this. I’m never going to do this. ” And a mediator’s job is, “Okay guys, do you want to get this done? Let’s work on this. ” Which is why, and you’re probably going to ask me this, why women sometimes, we don’t get picked. We don’t get picked.

I mediate maybe two or three times on average, two or three times a month, which is a lot with the busy practice. Maybe people don’t understand that mediation isn’t about the tough guy pounding on you. Sometimes a woman’s touch is what you need because we just tend to have a little bit more of a soft approach. I always like to say we do hard things in a soft way. So it’s a shame. And I always try to … I mean, whenever I can, I try to suggest a woman as a mediator. If somebody asks me, “Who do you like? ” I’ll list three people and I usually throw in at least a woman and they don’t want to pick them and I don’t understand why, but it’s just the way it is. It’s like a lot of things. You don’t know why. It’s just the way it is.

Mary Simon:

And I also think even coming full circle on something to be proud of, I mean, listening at the very beginning, even thinking about the fact that at one point you wanted to be a radio announcer or whatever you wanted to be, and now you are an esteemed attorney with your own practice. And I didn’t realize that you trained so many times to be a mediator. When you actually did it initially and then the need wasn’t there, not to mention women aren’t getting picked and then you did it again and then you did it again. And now where you’re at in your career with mediation, I think that that is also something equally to be pretty proud of because it shows a lot of resilience and the moves that you’re making while you’re having a family and you’re starting your own practice. I mean, just to know that it’s something you wanted to do and you’re there doing it is, it’s inspiring.

Jill Bollwerk:

Well, thank you. I appreciate that. I mean, to me, I just have the personality for it. I like everybody and I don’t look at anybody as my enemy. A lot of attorneys, we just are trained to do that. I don’t look at the defense ever as my enemy.

Elizabeth McNulty:

I

Jill Bollwerk:

Mean, of course there’s people I don’t care for, but I don’t look at them as they’re evil. They have a job to do. They’re doing their job. So I thought that’s just something in my personality that could be helpful to other attorneys.

Elizabeth McNulty:

Do you have any advice for any of our listeners who might be looking to become a mediator? What kind of first steps they should take?

Jill Bollwerk:

Well, you got to do the training, which is … And I think Slow used to offer it, but Simone Haberstock, Simone, she does Confluence of Missouri. It’s a mediation company. That

Mary Simon:

Sounds so familiar to me.

Jill Bollwerk:

She was my college, one of my best friends in law school, but she does the training and usually does it at SLU, I think once or twice a year. And I think you can get it at Mizzou, but the training is, I mean, lots of people get trained and they never get picked. So getting picked is the thing. But I think to get picked, you’re going to have to do things like I did landlord tenant mediations for free in accounting, and I got on the Better Business Bureau’s panel and I did some of those mediations for like 50 bucks. They were cheap just to get the experience of doing the process. And then you’re going to have to start off with your rate low and do the flat rate ones so that people are like, “Well, you get picked on those federal ones that nobody wants to settle.” “She’s cheap.

We’ll just do that. “But then they like you and then you can charge more. So you really just have to be super patient with it.

And honestly, you just have to be older because I just think people just think you got to have a lot of experience to share, which I don’t think is necessary myself. I was speaking last week, Simone teaches the media, that’s probably why you know her. She’s an adjunct at SLU. Oh, okay. She teaches the mediation class. And I was there two weeks ago doing their finals. And I’ve been doing that for a few years with her. And these young people are fabulous at it. They’re fabulous at it. And I just want to go, ” God, maybe try it at your age. Maybe you should just try it. “Back in my day, it wasn’t working, but things are just so different now than they were when I was trying to do it. And a lot of those, it’s a lot of night students, so a lot of them were older and they were going to go right into mediating, which I was like, ” I didn’t know that was possible, but that’s great.

“And then once you do it, I think I learned so much. I’m listening to a book right now about negotiation and it’s fascinating. It’s about negotiating the impossible. And it’s like the lockout strikes from the hockey and some of the peace accords and just the various techniques that those mediators use to get part … And it’s fascinating. So just like I’ll just take a note and go, ” Oh, that was a good idea. That was a good idea. “There’s just so much … I think a lot of people think, ” Oh, you just go do 16 hours and you do it. You can do it. You probably won’t do a good job at it. “Sure. But you can do it. So I just think if it’s something you want to do, you just got to get that training and then just start

Elizabeth McNulty:

Doing

Elizabeth Lenivy:

It. Yeah. Well, Jill, thank you so much for your time and letting us pick your brain. And this has been such a helpful conversation because I feel now that having had this in- depth talk with you and getting to hear more from the mediator’s perspective, I hopefully will be able to do a better job the next time I go into a mediation. I’m going to be better and maybe I’ll be a little bit more forgiving to the mediator. I know it’s a hard job. It’s a hard job. And this is a tough job because we do get so defensive and protective of our clients. And sometimes it’s hard to tear down that wall and remember that the person in the room next to you, they’re not the enemy, they’re not Satan, their lawyer is not the devil’s advocate. Okay, fine, fine, fine, fine. And we can all just try to have hopefully more efforts towards resolution, which is what I know you’re trying to achieve when you mediate.

Right.

Jill Bollwerk:

And then, I mean, I got two hats. There’s litigator and there’s mediator, and my litigator head is nothing like my mediator. You can’t be. It’s just two different roles. And so I try to … Sometimes, like I said, I like to try to help, and I’m like, ” I can’t. That’s not my job today. Not my job. Not lawyer here. I’m mediator.

Elizabeth Lenivy:

“Well, thank you so much for your time. And hopefully some of our listeners, if you have a case that you need to mediate, Jill is more than qualified and- Happy to do it. … and ready to get that case settled for you. Thank you again, Jill, and thank you to all of our listeners for joining us on this episode of Heals in the Courtroom. Remember, new episodes drop every other Wednesday, and if you’d like to reach out to us and be a part of the conversation, you can contact us at [email protected]. Thanks, guys.

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