From growing up on a horse farm near Pascagoula, Mississippi, to owning his own mediation and arbitration practice in the trendy area of Dallas known as Deep Ellum, John is a man who lets no grass grow beneath his feet. He just stepped down as the Chair of the ADR Section for the State Bar of Texas; during his term, John worked to advance statewide interest in mediation and arbitration.
Owning his own shop and being a mediator and arbitrator full time has been an adventure for John to say the least—but he’s been there before. From his initial plan of being a communications professor, pursuing a master’s degree at University of North Carolina at Chapel Hill, to finding a passion for law and starting his law practice with Jackson Walker in Dallas, John is proof positive that a new adventure can be waiting just around the corner.
I know you’re not from Texas, so where did you attend school?
I grew up in Pascagoula, Mississippi, and attended Mississippi State University for undergrad—I am a third generation Bulldog and I love it. Then, I went to UNC Chapel Hill for a masters that I didn’t finish. While I was there I took the LSAT and, curiously, I took the LSAT at Duke—and I remember thinking, “I would give anything to go here—I would love to come back to this place.” When the scores came back I was a little surprised, and with any luck Duke was going to be an option…so unlike most folks I drove my application over to Duke and sat down with the ladies in the admissions office. They were used to meeting ‘packages’ but not ‘people,’ and I had a great time chatting with them about life and happiness. Naturally, that was an incredible omen, and it worked out!
How does a boy from Pascagoula, Mississippi find his way from school in Mississippi to North Carolina to ultimately practicing law in Dallas?
Paul Jolas, now a lawyer here in Dallas, was at Duke a year ahead of me and had clerked at Jackson Walker. He was going through the interview process and told me there was a firm tailor made for me—it was almost like a blind date! I came out to Dallas because I wanted to try cases. I saw the writing on the wall that civil trials were going by the wayside even back then. Within a month of passing the bar I had my first trial. At Jackson Walker they fostered a combination of camaraderie and professionalism that’s rare in our profession. They worked me hard and taught me how to do what I did even better, and I appreciated that. I was young, single, and eager.
I know from past conversations that you grew up on a farm. What kind of farm?
Our primary business was Arabian horses. We had a stallion named Imperial Mandate that quickly became the cornerstone of our franchise, drawing mares from around the country. We had a great setup and a really good record for producing live foals. I learned great lessons form the farm side—for example, you have to feed the horses before opening Christmas presents, and every other day, no matter what. But I also saw the business side. It was my first exposure to serious marketing, the strategy behind the marketing, and business concepts like syndication, investment, guarantees, and more. Our farm gave me a taste of what business rewards, and business risk, could feel like.
Business success—what did you take from that experience and apply to your legal career?
Patience, first and foremost. I don’t think you can ever *make* someone do something. If you need a horse to go from one pen to the next it’s a lot easier to get them there by persuasion than by force. And a scared animal can be a dangerous animal—but with patience it’s also one you can work with and change. I learned that you have to take the time to understand what it is that’s making them scared, and to invest even more time to remedy the situation.
And the patience to help them find the open pen?
You’re absolutely right—but ultimately they have to get there under their own power. I can’t carry them there.
What type of law did you practice at Jackson Walker?
The firm tossed me into complex commercial litigation cases early on—accountants’ liability, oil and gas royalty disputes, and some significant personal injury work—while at the same time letting me manage the nationwide litigation docket for a fast-growing computer retail chain. I had people who truly invested time in me so that I learned what I was doing right and what I was doing wrong, since I didn’t know nearly as much as I thought I did.
You’ve been in money work since day one of your practice. How does someone with a speech communication background end up doing money work?
I’ve always had an aptitude for math and for how business gets done. Maybe watching my parents put deals together to buy and sell those horses had more of an impact than I thought.
What brought you into business and out of the practice of law?
Four years into my law practice I got a call from a firm client that pulled me out of firm life and into working for First USA, which quickly became one of the biggest credit card companies in the country. I remember the stock price just skyrocketing—and how John Tolleson and Pam Patsley, who led our company, were so good about sharing options and equity with the team. On that steep growth curve we all got to try new things. I became the Senior Director for Strategic Planning at one of the company’s new subsidiaries, I had a chance to work with our capital markets group, and over time I worked more and more with our sales and operations teams. It was a fantastic environment and a great fit.
So you had so much fun doing work with credit card companies, how did you end up here?
I found myself flying from New Hampshire, where I had been transferred, back to Dallas to work with McKool Smith, who was handling a major case for us. After our company sold, I thought I’d work the plaintiff’s side of the docket. McKool Smith was a great place to do that—they had great lawyers, really rewarding work, and an approach to litigation that I really enjoyed. I had learned a lot at Jackson Walker, and I learned different things at McKool Smith—and I ultimately sort of merged the two. At some point you wake up and say “my gosh, I’ve been doing this now for 10 years, and while I haven’t done everything I definitely have a skill set that I can market.” I got there at McKool Smith.
How do you go from being a litigator to a full-time mediator?
Before I became a mediator I had a long stint as Chief Litigation Counsel and, ultimately, General Counsel of a global technology firm, and that had a lot to do with it. The General Counsel to what was then KPMG Consulting, LLC asked me to be his global head of litigation, and for the next 10 years I flew around the country managing a litigation docket, settling cases, and ultimately running what was a very large legal department. I tried to count up – I mediated in about 20 states as a client. Some with good mediators, and some with approaches I don’t want to see again. I knew that, someday, I’d want to find a way to sit in that chair.
Five years into my role as Chief Litigation Counsel I went to Pepperdine to learn how to settle cases earlier and cheaper. There was a fairly direct line between my compensation and the settlement results I attained, and after the program at Pepperdine my compensation reflected the fact that I was getting even better results. I learned how to prepare for mediation, how to make my ideas the mediator’s ideas (or the other side’s), and how to break impasse when no one thought it could be done. Pepperdine taught me how to do that and more, and it confirmed that I I would be a mediator someday.
In 2008, my company began to consider filing for bankruptcy, and the Board asked me to be the General Counsel to take them through the bankruptcy process if it came to that. The company was a global, $3 billion business with over 15,000 employees doing business in over 60 countries, and this was no doubt a big project. There were hundreds of cases and other disputes I had to settle, and I had to stretch in positive ways every day. As that role began to wind down, I switched chairs and took on my first case as a mediator.
So you’ve had good days as a mediator?
Oh, yes. Nothing’s better than having people walk out of a mediation knowing that their lives have been changed for the better. I had someone tell me after a big mess that I helped settle, “John, thank you so much for what you did. I can begin to put my family back together now.” That leaves a mark in a very good way.
That’s a good day, but what do you do on days that don’t end so well?
When I started my practice I equated “success” with settlement on mediation day, but in many of the cases I handle there’s more to it than that, and my job doesn’t end at the end of the day. Most of the time we can get it done, but settlement on mediation day isn’t always what clients want. Sometimes they want a bit of a fight or a little revenge or a way to publicly air their opponent’s shortcomings, and we don’t sell that here. With that said, there are lots of cases where I know a day or two of nonsettlers’ remorse can drive a change in perspective. I’ll call the next day or the next week to see if we can get something done, and that follow-up often gets the deal done.
Chris Nolland tells other mediators that, “You need to treat every mediation like it’s your first,” and I remind myself of that at 9:30 in the morning every mediation day. Whether it’s today or next week or a little later, sometimes what the parties need is a little time. I’ve sent a mediator’s proposal out of the blue 5 months after mediation, and the parties settled. Good for them.
Because you’ve been on both sides?
I’ve been on every side. I’ve been the individual defendant, I’ve been the individual plaintiff, I’ve been the corporate rep, I’ve been the outside counsel, I’ve been in-house counsel, I’ve been the mediator, and, most importantly, I’ve been the guy back at the ivory tower who answers the phone at 5:30 asking for an extra $50,000 to settle the case. If empathy is critical to get to settlement, I’m happy to say I have that.
In 15 words or less define what makes you a successful mediator.
First, I would tell you that I’m trying to be better every day, and my list will no doubt evolve over time. Setting that aside:
(1) follow-up;
(2) preparation;
(3) pre-mediation calls;
(4) research;
(5) listening;
(6) focus; and
(7) a desire to never let go. [That’s 14 words folks! He did it.]
The funny thing is, on the preparation side—those are the easy points. I traveled the world with an insurance broker and never once was he late for a meeting, a breakfast, a conference call, or anything else—his name was Robert Stanton. I asked him, “How is it you’re never late?” He said, “John, those are the easy points.” In my business, preparation is an easy point. When you’ve done your preparation as the mediator and you know every document, including the one at the bottom of the stack, you’re in a good place. You know there isn’t anything you’re supposed to know that you haven’t reviewed. At that point you can focus on the people behind the problem, and that’s how deals get done.
I have visited with several mediators who say the participant’s attorneys aren’t prepared…
That’s not true here. But keep in mind we have pre-meetings and pre-calls in my practice, and this encourages parties and their counsel to think about their case a little earlier in the process.
How much time do you schedule for a pre-call?
I set aside an hour, and I try to have everything read, or at least skimmed, before the pre-meeting. Usually I ask a few questions during the pre-meeting that can generate momentum toward settlement before we ever get into the same room. I think what lawyers sometimes need is someone else to show their client what’s happening, or what might happen, in their case.
You’re currently the immediate past chair of the SBOT ADR Section. Why did you get involved at the State level?
One, I was asked, but candidly I was more than happy to say “yes.”
Two, I think it’s incumbent upon people in a profession to advance the interests of that profession. I served as Chair of the ADR Section at the Dallas Bar Association as well, and I hope to find more way to serve because we need to maintain the practice started by those who came before us—the Steve Brutsches of the world. We owe a duty to make mediation available for the next generation, and we need to maintain the benefits of arbitration, as well.
How did that duty carry forward with your goals as the SBOT ADR chair?
It’s important to me that we leave this profession in as good or better place than where we found it. No doubt there are threats to the profession out there. Some well-intended folks don’t understand what could come from the changes to ADR some have suggested—and, no matter what the external forces may be, we need to continue our focus on mediator and arbitrator training and professionalism. We have to take what makes mediation and arbitration so special and protect and maintain it. Whether through education or availability or something else, we need to continue to make ADR better.
With all that said, we need to be sure ADR adapts to what lawyers and the clients they serve want and need. People who are overly tied to the way it always has been are free to do it the way they’ve always done it, but change is always on the horizon. We all need to understand that the marketplace sometimes chooses, and those choices are made every day. There are mediators out there that I know and respect who would yell at me if they found out that I don’t always insist on a joint session, but that’s what most people want these days.
The “decider” in your next mediation may have broken up with her first boyfriend by text, has never ridden a bicycle without a helmet, and got a trophy every time she finished another soccer season. It’s not bad, and it’s not good. It just is, and it’s our job to meet her where she is.
And it changes the dynamic?
There’s no doubt this changes the dynamic. A 30-year-old attorney may need something different to get to settlement than someone from a different era. We need to meet them where they are. We have to take into consideration what the participants, including the lawyers, want and need. You’ve got to have the EQ [Emotional Intelligence] to figure out what they need. I was once told by a lawyer I hired: “Your need is my specialty,” and I keep that in mind every day I show up to work. But we need to remember that everybody’s needs are just a little bit different.
The future of mediation looks like what?
I put together a talk a year ago about what younger lawyers want out of ADR. Importantly, I sat down with younger partners and asked them. They like technology—they expect very fast responses. They expect to be listened to—not just the facts of the case, but the things they want and the things they need. They are young, but still lawyers and partners who deserve the respect that comes with both. They’re no less significant than a lawyer who’s practiced for 20 or 30 years. Like anyone else, they want the respect and the influence they have earned, and I think that’s great. By and large most ADR professionals are over 45—and we need to recognize that that young partner has a client with wants and needs and a job to do just like the everyone else.
Are there any common problems that you can think of that are typical in mediations?
The attention span of everyone is dropping—I think a lot of lawyers do a great job of reminding the client of the strengths of their case—which is the easy part. But a lot of folks don’t have a concession strategy or a way to manage their client’s expectations. To settle, they’re going to have to make concessions. Capitulation is different from mediation, and capitulation almost never happens at the mediation table. If they’re mediating voluntarily but don’t plan to make any concession at all, then they need to ask why they’re here.
Sometimes parties come to negotiate the contours of the case, then they come back to negotiate the discovery, then they come back and negotiate the settlement. Again, I remind myself: “Your need is my specialty.”
You’re talking about having multiple sessions of mediation with clients; do you find the client that chooses that pattern gets the most success in their final outcome?
Absolutely. In what I do, the lawyers who mediate with me, who learn what I do and the way I do it, come back, often time and again. I’ve mediated cases where something bad happened and now someone’s going to get sued—the parties came here and we had a discussion about what the facts were, what the documents showed, and how to figure out what else we need to know to get the situation behind us. After a little targeted discovery the parties came back here and we mediated to closure then. I used to say the best way to have lower litigation fees was to have fewer lawsuits, but this isn’t quite accurate. There are actually 3 ways to have less litigation: fewer cases, smaller cases, and shorter cases. Mediation can help clients get all three of these.
If you had gone into a field other than law, what would it be and why?
I would have been a professor.
What would you have taught?
Speech communication.
Why?
I love it, and I was good at teaching others how to be good at it. There is no professional feeling better than seeing that light bulb go off in a student’s eyes. When I was in graduate school at Carolina I taught public speaking, and I saw the light bulb go off—time and again—in the students I taught. I loved it. So if I could do something different it would be to teach communication, persuasion, and negotiation. In a way it’s not that different from what I’m doing now.
Wouldn’t you say all good mediators teach as they go?
All the good ones, yes. I think they teach people about the process, the other side, and about themselves.
What parts of being a professional full-time mediator do you personally find most satisfying?
When they walk out the door and it’s done. Cases that you never dream would settle—and then they do. Their lives are forever different—but I didn’t do it. They did it. But at the same time, it happened here.
Do you think you do things that on some level really help someone?
One of the frustrations of being in-house counsel is that you’re helping a business…and on a good day you might change earnings by a percentage of penny on a per share basis. You have an impact on a lot of people, but a small one. I strongly prefer the more direct, person-to-person results that I can see in mediation.
What would you say is the most challenging part about being the mediator in the room? You’ve seen all sides!
The ‘Horse to Water’ problem. When you know what’s going on in both rooms, and you know that the offer on the table is the best they’ll ever get by any measure—economics, cost of defense, emotional costs avoided, and more—yet they won’t move.
I asked Chris Nolland once: When should I lose sleep as a mediator? Without quoting him directly, my takeaway was that, if I was prepared, if the lawyers presented the case in a way the parties could understand, and if the parties understood the risks, in the end it’s their call. I might not like the answer, but as the mediator I have learned that I ask the questions. I don’t get to answer them.
As the mediator how do you do the best practice?
Lee Jay Berman has analogized mediation to driving a car with a manual transmission. The first 20 times you’re behind the wheel you’re thinking about the clutch, the gas, and the gears—with your focus divided between the car and the road. In mediation, the first 20 mediations you do you’re focusing on not freezing or forgetting your opening statement or how to get your mediation agreement signed, as well as how to get a deal done. But after you’ve done it more than a few times, muscle memory drives the process fundamentals and you can focus on serving those who have hired you rather than the mechanics themselves.
Are there any techniques you’ve used as a mediator to help ‘get the deal done’ at the end of a long day?
My secretary serves cheese and crackers at 5:30 every day no matter where we are in the process. It’s low glycemic, and it helps folks think. It also lets the parties know that I’m in no hurry so let’s get this done and done right. It tells them that I want to get to the right answer for everybody—and it puts people at ease.
I also work hard to manage expectations: “I know you want them to be at X dollars. I can’t always predict the future with certainty, but I don’t believe the folks in the other room are going to get to $X. So we can continue to work, but you need to understand I don’t think X is going to happen.” I think you have to make sure they understand that the process may not take them where they originally wanted to go.
You’re the father of three boys and you participate in Boy Scouts with them. What other hobbies do you have?
I am Scoutmaster at Troop 70, of one of the oldest Boy Scout Troops in the Council, and it’s a huge responsibility—but also a great outlet to have fun with my boys. We are fortunate to have a bunch of adults in the Troop committed to Scouting that create a positive context to raise our boys in.
Were you a Boy Scout?
I am an Eagle Scout. I had a Scoutmaster that gave up every 4th weekend, month in and month out, throughout my teenage years to provide that experience for me. I always wondered why, but now I understand.
What is your favorite word?
Yes
What is your least favorite word?
Can’t
What profession would you not like to do?
Any job where I’m not able to see the end product. One of the most rewarding jobs I ever had was printing envelopes at Action Printing Center back in Pascagoula. The pleasure of closing the tailgate on a pickup truck full of a product that you helped create can’t be overstated. Seeing the end product is critical to me. If my job was to lay foundations in construction and I didn’t get to see what got built it would drive me crazy. I like the finish more than the start.
What would you like to hear God say when you arrive at the pearly gates?
Well, I certainly hope it’s not an expression of surprise!