Brendan Ford of Ford & Diulio PC On How To Create A Successful Career In Conflict Resolution And Mediation

An Interview With Eric Pines

Learn as much as possible, as often as possible, in all four areas. Books, podcasts, seminars, conferences, programs, webinars, etc. are all great ways to stay current on issues, trends, and innovations. Teach others about what you’ve learned. I love speaking to groups large and small about mediation and conflict resolution. It not only establishes me as a thought leader and authority figure, but more importantly cements the information I’ve learned in my mind.

What does it take to create a highly successful career in conflict resolution and mediation? As a part of this series, we had the pleasure of interviewing Brendan Ford.

Brendan Ford is a founding partner of Ford & Diulio PC in Costa Mesa, California. With a single focus in mind, he started the firm to provide world-class service to individuals, small businesses, and global corporations.

With more than 20 years of experience, Ford has developed his practice to concentrate on handling catastrophic personal injury claims, product liability matters, complex business litigation, and consumer class actions. In addition to pre-litigation settlements, law and motions, discovery (including e-discovery), depositions, expert discovery, trials, post-trial motions, and appeals, he has experience in all phases of litigation.

He graduated from the University of San Diego School of Law in 2002 at the University of San Diego School of Law. In addition to being a member of USD’s National Moot Court Team, he was also a member of the Phi Delta Phi International Legal Honor Society.

Thank you so much for joining us in this interview series! Before we dive in, our readers would love to “get to know you” a bit better. Can you tell us a bit about your ‘backstory’ and how you ended up where you are?

Thank you for having me. It’s an absolute pleasure to speak with you about conflict resolution and mediation, topics that I am so passionate about.

I grew up in New York City to a father from the Bronx and a mother from France. In my late teens, I moved to Southern California, attended college and went to law school in San Diego. After graduation, I was honored to serve as a federal law clerk and eventually became a litigation partner at both national and international firms before starting my own firm in 2015. In 2020, during the pandemic, I decided to pursue my passion of mediating cases. I truly love what I do, and am so very grateful to the friends, colleagues, and mentors who have helped me get where I am today.

You are a successful leader. Which three character traits do you think were most instrumental to your success? Can you please share a story or example for each?

1. An insatiable desire to learn. I *love* learning about new areas of the law, new businesses, and new technologies. I mediated a product liability case involving cutting-edge spinal fusion technology. While I am quite knowledgeable about product liability law relating to drugs or medical devices, I had not dealt with or heard of this technology before. Pre-mediation, I read everything that I could about the medical device, including animations and peer-reviewed articles. At the mediation, I asked both parties several questions about the device, its use, its approval process, and its safety profile. Once I fully understood the device and its history, I was able to bring the parties together to a successful resolution. More importantly, I don’t think I would have been able to settle the
   case had the parties not been satisfied that I knew what I was talking about.
2. A genuine desire to understand people and their interests. Human psychology has always fascinated me –what motivates people to make the decisions that they make? In a recent mediation involving a business divorce, the two principals *hated* each other — so much so that I needed to organize restroom breaks and lunch breaks so that they wouldn’t see each other. To settle the case, I absolutely had to get to the bottom of this hatred. Since this was a business dispute, why was there so much vitriol on both sides? It took hours, but eventually I figured it out. One of the parties felt like he was completely hoodwinked and was convinced that he would have to declare bankruptcy, go into financial ruin, and lose everything — all because of the other party’s actions. The other party was equally irate. Being an older gentleman, one of the founders believed that the sale of the business was going to fund his retirement, give him financial security, and provide for his children and grandchildren. The failure to pay the agreed-to amount, regardless of the reason, was seen as a direct attack on him, his future, his retirement, and his family. Only after discussing these concerns, and diffusing them, were the parties ready to address the underlying dispute. After 14 hours of negotiation, the parties had a fully written and fully executed release and settlement. Both parties averted financial disaster and were able to move on with their respective lives.
3. The tenacity to get the case settled. I approach every mediation with the belief that most cases should be settled. I also communicate this belief at the onset of every mediation, where I tell the parties that (a) the case should be (and will be) settled, (b) I will do everything possible to help promote settlement, and © I am in this for the long haul and will be the last person out the door. In several mediations, I have had lawyers tell me early and often that “this is pointless,” “this will never settle,” and “I’m leaving.” I never accept this as an answer. I’m always the most optimistic person in the room, and continually tell the parties to trust the process, keep talking, and keep negotiating. Thus far (knock on wood), the strategy has worked — I have settled 100% of my cases.

What are some of the most interesting or exciting projects you are working on now?

I am currently working on expanding my mediation business in two exciting respects.

First, I am expanding my mediation services to include class action cases. These settlements provide a variety of challenging due process and logistical considerations that do not exist in a typical mediation. As someone who has handled class actions as an attorney for more than a decade, I am keenly aware of both the benefits and potential pitfalls associated with these types of settlements and look forward to helping clients bring these complex cases to resolution.

Second, I am working to expand my mediation practice internationally. I speak French fluently, other languages conversationally, and have spent significant time overseas learning about foreign customs and traditions as they relate to international business. My background and understanding will provide value to clients in resolving international disputes.

Fantastic. Let’s now shift to our discussion about Conflict Resolution and Mediation. Let’s start with basic definitions so that all of us are on the same page. What exactly is Conflict Resolution?

Conflict resolution is the process through which individuals and/or businesses resolve disagreements in a civilized manner. Conflict resolution can occur in one of four ways: (1) negotiation (where the parties agree, without any third party involvement, to resolve the dispute), mediation (where a third party helps the parties reach agreement and resolve the dispute), arbitration (where a private judge hears evidence, and renders a decision in favor of one or more parties to the dispute), and litigation (where a judge, and perhaps a jury, make determinations in favor of one or more parties to the dispute).

Resolutions can take one of two forms: equitable (where the court orders, or a party agrees, to either do or not do something) or legal (where the court orders, or a party agrees, to pay money to compensate another party for alleged harm). Conflicts subject to resolution can relate to a variety of fields, including but not limited to civil matters (business disputes, real estate disputes, labor & employment, personal injury, product liability, landlord/tenant), probate matters (trust disputes, inheritance disputes), and family matters (divorce, spousal support, child custody).

What is Mediation?

Mediation is the process of resolving conflicts or disputes through a neutral third party, known as the mediator. The mediator discusses the underlying facts and law with the parties, asks questions relating to positions, interests, alternatives to settlement, and risk evaluation, and helps the parties reach a mutually acceptable resolution to their dispute.

How are the fields of Conflict Resolution and Mediation different? How are they similar?

Mediation is a subset of conflict resolution. Conflict resolution can take many forms including litigation, negotiation, mediation, and arbitration. Mediation is a specific type of conflict resolution where a neutral third party helps guide the parties to a mutually acceptable solution to a dispute. Conflict resolution and mediation are similar in that problem-solving, communication, and working toward a common ground are essential elements to success in both fields.

Can you share a few examples of cases or disputes that would be brought before a professional in conflict resolution or mediation?

There are countless examples of disputes that could benefit from mediation. Business disputes, labor & employment, personal injury, product liability, corporate governance, HOA disputes, intellectual property disputes, insurance coverage disputes, probate disputes, divorce, and child custody disputes are among the many types of cases/disputes that can be brought in front of a mediator.

What are some common misconceptions about conflict resolution and mediation that you’ve encountered, and how do you address them?

There are several misconceptions about mediation. Here are three of the more common ones.

First, some people think that mediation can only occur in the context of a lawsuit. Not so. Some of the best negotiated resolutions occur before a lawsuit is ever contemplated. For example, suppose you are the head of a large company. You learn that the head of marketing and the head of accounting — both of whom are superstars in their own right — have serious personal disagreements and hate working together. What is the best course of action? Do you wait until one of them quits? Until both quit? Worse yet, do you wait until one or both files a lawsuit? Or do you hire a mediator to get the parties together, figure out the issues, and develop solutions that will allow both parties to continue to work at your company. The wise business choice is the obvious one.

Second, some people think that mediation is simply a “kumbaya” moment where everyone is simply expected to play nice. Again, this is not the case. Good mediations allow the mediator and the parties to vigorously debate the strengths and weaknesses of each party’s factual, legal, and settlement position, fully explore possibilities for resolution, and thoroughly evaluate whether settlement is a superior alternative to continued litigation.

Finally, some parties believe that a mediator can “force” the parties to settle. This is completely incorrect. Mediation is a voluntary process, and no one can be forced to settle a dispute without their express agreement. A good mediator cannot — and should not — force parties into a settlement. Rather, a good mediator helps the parties make fully informed decisions as to whether a settlement is in their best interest.

This may be obvious to you, but it will be helpful to spell this out. Can you articulate to our readers why the skills and tools of Conflict Resolution and Mediation are so important?

I believe that mediation is a vastly preferable alternative to litigation for several reasons.

First and foremost, mediation allows the parties to create their own solution to the conflict, rather than being subject to the decisions of a judge or jury.

Second, mediation allows the parties to negotiate terms that are unavailable in a lawsuit, such as an apology letter, a donation to a specified charity, or other non-monetary terms.

Third, mediation is much faster and far less expensive than a lawsuit. Litigation, even in relatively simple cases, can take anywhere from 18 months to five years before resolution, and cost anywhere from tens to hundreds of thousands of dollars (or more). Mediation, on the other hand, is generally completed in one day at a fraction of the cost.

Finally, mediation promotes healthy communication. Whether the underlying dispute is a business divorce, a child custody matter, or a medical malpractice case, mediation provides the opportunity for each side to communicate openly and honestly in a safe and neutral environment. This allows for greater empathy and greater understanding — the building blocks for common ground and, ultimately, resolution.

Looking back, what are some things that you wish you knew when you first started in this field?

As an attorney, I was lucky enough to attend a lot of mediations with some truly excellent mediators and lawyers. Here’s what they taught me: learn from the greats. Ask a lot of questions. Listen actively and carefully. Focus as much on what is not being said as what is being said. Show optimism. Be tenacious. Think outside the box — the potential solutions to a dispute are limited only by the creativity of the parties, the lawyers, and the mediator. Focus on interests, not positions. Always ask yourself, what is each party’s basic need that must be met to reach resolution? Never give up hope while the parties are still talking.

How has your personal background influenced your approach to conflict resolution and mediation?

I grew up in the metropolis of New York City and have lived overseas. Through those experiences, I was exposed to the countless ways that different people and different cultures speak, argue, show vulnerability, negotiate, process information, and reach a mutual decision. A good mediator must make these evaluations very quickly and adapt their communication style accordingly.

What role does empathy play in the process of conflict resolution and mediation? Can you share an example from your experience?

Empathy — the ability to understand and share the feelings of another — plays an essential role in conflict resolution and mediation. In my view, a settlement can rarely if ever occur without it. To settle a case, the mediator must determine core interests of the involved parties. While money is an important part of most settlements, it almost always serves as a proxy to more fundamental interests, such as stability, security, respect, appreciation, vindication, justice, health, or legacy, to name a few. Revealing those core interests (“I’m hurt, I’m scared, I’m angry, I’m devastated, I feel betrayed, I’m afraid”) requires vulnerability, which in turn requires trust in the mediator.

Trust that the environment is safe. Trust that there will not be any judgment. Trust that those vulnerable moments will not be shared with the other side without permission. And trust that the mediator understands the parties’ feelings. In my experience, parties to a mediation will not fully invest emotionally or intellectually in the mediation process until they are satisfied that the mediator understands the parties’ perspectives, feelings, and needs.

As an example, I was in a mediation for a medical malpractice case. The plaintiff had a cosmetic procedure, and within hours suffered serious complications. The plaintiff’s husband repeatedly contacted the doctor’s office was unable to reach the practitioner or anyone in their office. The complications worsened. Eventually, they got bad enough that the plaintiff required emergency surgery at the emergency room.

Early in the mediation, the parties were not making much progress. The discussion centered on medical, legal, and monetary issues. Plaintiff’s husband, who was described to me as “mild-mannered” and “a man of very few words,” held true to his description and said almost nothing for the first few hours. Sensing that the momentum towards settlement was slowing down, I started speaking directly to him. I told him about times in my life where family members had to suddenly go to the hospital, and shared how scared I was. I told him about times where I desperately tried to get a hold of someone important on the phone, and how frustrated I was when I couldn’t reach them.

And then he erupted.

The mild-mannered man of few words released a torrent of emotion that had clearly been bottled up for a very long time. With tears in his eyes, a shockingly intense voice, and a body quivering with rage, he spoke. He and his wife had been married for decades and he didn’t want her to get the procedure in the first place. He was outraged that the doctor didn’t respond to repeated messages about her complications — in his words, he was “so mad that he could rip a phone book in half.” He was terrified that he was going to lose her. He didn’t know what to do, He didn’t have anyone helping him, couldn’t reach anyone and he couldn’t believe that the doctor didn’t go to the emergency room once he was notified that his patient was receiving emergency surgery. In short, he felt alone, terrified, and abandoned.

Once the plaintiff’s husband was able to share those emotions — and trusted me enough to do so — we made a breakthrough. I was able to explain to the doctor that this case was not a criticism of his surgical abilities (his core interest, and the primary obstacle to settlement), but rather about his office’s failure to follow-up and communicate with a patient with serious post-surgical complications.

The doctor went to speak directly to the plaintiff and her husband. He shared how profoundly sorry he was that this happened and explained that this horrible incident was due to a catastrophic series of misunderstandings and miscommunications. He further assured the plaintiff and her husband that he would immediately fix the communication issues so that no other patient would ever experience what they did.

Having felt heard and understood, the parties were able to settle the case. Without empathy, I’m almost certain that the mediation would have failed.

For someone looking to enter these fields what kind of education and certifications would they need?

While there are no formal requirements in terms of education or certifications, most mediators share certain commonalities in terms of background.

Nearly all mediators have a law degree, though one is not required — the mediator who trained me has a business background, no law degree, and remains one of the most successful and sought-after mediators in Los Angeles. Most mediators have (or have had) extensive experience litigating cases in the areas of law that they now mediate, whether it be business litigation, real estate, labor and employment, personal injury, product liability, class actions, family law, probate, or intellectual property. Many mediators are retired judges. Several mediators have completed 40-hour certification programs or multi-day programs to do a “deep dive” into the mediation process. Some even get advanced legal degrees in dispute resolution. Whatever one’s background, the best mediators are highly inquisitive, active listeners, that are intellectually nimble, creative thinkers.

This is our signature question that we ask in many of our interviews. What are your “5 things you need to know to create a successful career in conflict resolution and mediation”?

1. Don’t Be a Jerk. Treat colleagues, former colleagues, and opposing counsel with respect. Remember that it’s usually the lawyer representing a party that hires you, so act accordingly. The parties in a product liability case hired me as a mediator. Defense counsel agreed to use me because I was recommended by a former law firm colleague. The plaintiff’s counsel agreed to use me — even though I had litigated several cases against her firm — because she viewed me as polite, professional, and fair-minded.

2. Be a Planter, not a Hunter. Building a mediation practice is a marathon, not a sprint. Successful mediators create and nurture relationships over long periods of time to stay top of mind. Communicate and interact with your network to answer questions, provide value, and create opportunities for further discussion. Use email, texts, newsletters, LinkedIn updates, and other social media posts to demonstrate your expertise. Remember that social media is supposed to be social, so comment on other people’s posts and respond to comments on yours. Don’t limit yourself to electronic networking — schedule breakfasts, coffees, lunches, happy hours, and dinners with potential clients or referral sources. I have a former colleague who is a business litigation attorney. I haven’t worked with him in eight years, but nonetheless have kept in touch with him on a consistent basis and talk to him at networking events. After starting my mediation practice, I continued to communicate with him. The last time I saw him, he came up to me and said “Brendan, I have a mediation that I think you’d be perfect for.” This is a relationship years in the making, and now it is bearing fruit. Strategic networking takes planning and effort, but ultimately is far more effective than ad hoc marketing efforts.

3. You Have to Give to Get. Take action with no expectation in return, and amazing things can happen. Connect people from your network who don’t know each other but you think should. If asked, offer advice and mentorship to younger attorneys or colleagues who are working through a problem, whether it’s personal or professional. Refer cases to other attorneys. Donate your time, treasure, and talent to charities and causes that inspire you. Position yourself as a valuable resource. I introduce myself as a “Mediator and Professional Problem Solver.” While the mediator part is obvious, the professional problem solver is less so. My offer to my friends and colleagues is this: if you have a problem, I will do everything I can to either solve it or find someone who can. This offer has manifested itself in many forms. I’ve helped colleagues write or edit reports, articles, and other written work for various charities, even ones I don’t belong to. I wrote the copy for a foundation website because a colleague needed my help. I’ve given book recommendations on all sorts of topics, and I’ve often purchased and mailed books to colleagues who asked for help or insight on a particular area. I’ve even taught a friend of mine opera etiquette because she was going to the Met for the first time. By establishing and reinforcing “if problem, call Brendan,” who do you think they will turn to when they have a dispute that requires a mediator? It’s the law of reciprocity. Giving without expectation pays dividends.

4. Always be Learning. Successful mediators have expertise in four broad areas: (1) the mediation process itself, (2) the law applicable to the dispute, (3) human psychology, and (4) negotiation. Learn as much as possible, as often as possible, in all four areas. Books, podcasts, seminars, conferences, programs, webinars, etc. are all great ways to stay current on issues, trends, and innovations. Teach others about what you’ve learned. I love speaking to groups large and small about mediation and conflict resolution. It not only establishes me as a thought leader and authority figure, but more importantly cements the information I’ve learned in my mind.

5. Don’t ‘Reinvent the Wheel — Find a Mentor. In my experience, top mediators not only excel in their craft, but are also exceptionally generous with their time and advice. Find a mentor that has accomplished what you hope for in your mediation career. Reach out to them on LinkedIn. Offer to take them to lunch, grab a coffee, shadow them for a day, or ask them to recommend books and resources for further learning. Prepare good questions in advance (don’t wing it — this is not the time for an impromptu dialogue). Listen carefully to their answers and take notes. Be respectful of their time. And send a thank you note afterwards. By taking these simple steps, I have learned countless lessons from incredible mediators who love nothing more than sharing their wisdom and experiences.

You are a person of enormous influence. If you could inspire a movement that would bring the most amount of good to the most amount of people, what would that be? You never know what your idea can trigger. :-)

I am committed to making pre-lawsuit mediation and early mediation the rule as opposed to the exception. In my view, there are still far too many lawyers who believe that mediation cannot occur unless they obtain every single document, interview every single witness, and turn over every proverbial stone. This is often counterproductive to settlement because (a) litigants, who have been locked in an adversarial stance for months or even years, harden their positions, (b) massive amounts of incurred attorneys’ fees and costs often make a case’s settlement value much more expensive, and © with fewer events occurring between mediation and trial, lawyers and litigants can sometimes become a little too certain of their expected trial result, which anyone who has tried a case before knows is a fool’s errand.

Early mediation allows the parties to resolve disputes quickly, efficiently, effectively, and inexpensively before either side invests too much into the case, whether monetarily, emotionally, or otherwise. It allows the parties to avoid the stress, business disruption, and financial uncertainty of protracted litigation, provides an opportunity to craft a mutually-agreeable solution to the dispute, have certainty and stability in terms of the potential outcome, and move on.

I am passionate about conflict resolution and mediation, and am always happy to discuss these matters further with any of your readers. Thank you very much for giving me the opportunity to share my thoughts on this complex and fascinating subject.

This was very inspiring. Thank you so much for the time you spent with this. We wish you continued success and good health!

About the Interviewer: Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative. A formal federal employee himself, Mr. Pines began his federal employment law career as in-house counsel for AFGE Local 1923 which is in Social Security Administration’s headquarters and is the largest federal union local in the world. He presently serves as AFGE 1923’s Chief Counsel as well as in-house counsel for all FEMA bargaining unit employees and numerous Department of Defense and Veteran Affairs unions.

While he and his firm specialize in representing federal employees from all federal agencies and in reference to virtually all federal employee matters, his firm has placed special attention on representing Veteran Affairs doctors and nurses hired under the authority of Title. He and his firm have a particular passion in representing disabled federal employees with their requests for medical and religious reasonable accommodations when those accommodations are warranted under the Rehabilitation Act of 1973 (ADA). He also represents them with their requests for Federal Employee Disability Retirement (OPM) when an accommodation would not be possible.

Mr. Pines has also served as a mediator for numerous federal agencies including serving a year as the Library of Congress’ in-house EEO Mediator. He has also served as an expert witness in federal court for federal employee matters. He has also worked as an EEO technical writer drafting hundreds of Final Agency Decisions for the federal sector.

Mr. Pines’ firm is headquartered in Houston, Texas and has offices in Baltimore, Maryland and Atlanta, Georgia. His first passion is his wife and five children. He plays classical and rock guitar and enjoys playing ice hockey, running, and biking. Please visit his websites at www.pinesfederal.com and www.toughinjurylawyers.com. He can also be reached at eric@pinesfederal.com.