Jeffrey Krivis, Esq.
Monday, August 15th, 2022
Mediation with Jeffrey Krivis
Southwestern Law School
San Diego State Univ
YEARS IN PRACTICE
Lawyer, 42 years
Straus Institute for Dispute Resolution
Class Action, Mass Torts, Labor & Employment, Complex Insurance
“No two disputes will be the exact same, even if they involve the same type of dispute. Parties will bring their own emotions and ideas to the table, and the exact interests of the parties can make the negotiations go in a completely different direction, even when the parties started in the same place as another party.”
This is the mindset that mediator Jeffrey Krivis has built his mediation practice around. Understanding what the parties need and creating a space in mediation and negotiation for innovation is the core of Mr. Krivis’s work. In fact, Mr. Krivis summarizes his philosophy for successful and dynamic negotiation in the phrase “improvisational negotiation.” To Mr. Krivis, the key to success in mediation and negotiation is to combine the insight that he learned from years of litigation with the ability to improvise and avoid providing scripted mediation to his clients. This philosophy has made Mr. Krivis one of the best and most renowned mediators in the state of California.
Mr. Krivis graduated from Southwestern University School of Law and began working as an attorney in the Los Angeles area. Realizing that many parties were having to go out of state to resolve their cases, Mr. Krivis broke into the exclusive alternative dispute resolution market in California and began to offer mediation services at a time when attorney-mediators we not common. Today, Mr. Krivis practices primarily in California, and he specializes in complex commercial matters. He founded First Mediation Corporation, which handles his case administration and a firm that is involved in training, consultation, and advice to the legal community based on Mr. Krivis’s proven model for resolving complex, high-risk disputes.
Mr. Krivis has designed a system for resolving these complex disputes using his improvisational negotiation model. Mr. Krivis studied and developed how to use improvisation to benefit mediation by testing out his theories by performing as a standup comedian. In his book, Improvisational Negotiation: A Mediator’s Stories of Conflict About Love, Money, and Anger—and the Strategies that Resolved Them, Mr. Krivis lays out a process that sets the stage for a successful resolution by focusing on improvising, harmonizing, and always closing. This model has made Mr. Krivis a successful mediator in complex disputes and has helped him resolve thousands of disputes over his time as a mediator. Focusing on adapting the process for every dispute and being open to completely go off script when needed, Mr. Krivis helps the parties feel comfortable and invested in the process. By creating investment and helping to keep the parties on track toward a resolution, he can help avoid the arguments that can arise in negotiations and instead help steer the parties toward a resolution that works best for everyone.
Mr. Krivis practices in a wide variety of mediations. He tends to focus on complex commercial disputes, often involving emotions that complicate and drive the case. His practice areas include:
- Wage and Hour Disputes
- Sexual Abuse
- Consumer Class Actions
- Mass Tort
- Complex Insurance
- Product Liability
This is only a small sampling of the kinds of cases that Mr. Krivis works to resolve, and his services cover a wide variety of disputes. Throughout this practice, Mr. Krivis has collected a rather impressive list of settlements and work. In addition to his settlement agreements, he has also been recognized frequently for his success in mediation by various organizations, including being knighted by the International Academy of Mediators in 2013. He was also named a “Power Mediator” in the entertainment industry by the Hollywood Reporter, a “Super Lawyer” by his peers, and “Mediator of the Year” several times. He has also been named one of the best neutrals in California regularly by the Los Angeles Daily Journal and has the highest rating (AV) from Martindale-Hubbell.
While running and continuing to innovate in his robust mediation practice, Mr. Krivis has served as president of both the International Academy of Mediators and the Southern California Mediation Association and as a Council Member for the Section on Dispute Resolution at the ABA. He has written two books on mediation, Improvisational Negotiation and How to Make Money as a Mediator and Create Value for Everyone, and has contributed to several other books and online publications. He also seeks to continue to develop and grow the negotiation and mediation field, regularly hosting training for lawyers and judges on the topics, as well as teaching at the Strauss Dispute for Dispute Resolution at Pepperdine University and serving on the Monterey Law School Advisory council. When he is not mediating or teaching, Mr. Krivis lives in Southern California with his family where he golfs, dabbles in photography, and enjoys playing guitar and listening to music.
What made you want to become a mediator?
Like most things in life, I stumbled onto the field in 1989. One of my clients out of Texas asked me to mediate several of their disputes. At the time, California didn’t have many mediators with the exception of a few retired judges who had not yet developed the skill set to properly settle cases. The client decided to send in a professional mediator from Texas who did an outstanding job on our cases. I met him for dinner at the conclusion of our cases and asked him if he got paid to do that type of work? He was very encouraging and said it had been a profession in Texas since the enactment of mandatory mediation laws in 1987 and invited me to study with his firm to become a “certified” Texas mediator. I flew to Dallas in the summer of 1989, participated in his program and returned to California having started down the path of re-directing my professional career from trial work to mediation. Little did I know that I was jumping into a pool without much water at the time.
Like most passions, the work I’ve been able to do in mediation has allowed me to learn more about myself than I could ever have learned practicing traditional law. It has been a process that requires investment in learning about people, the interplay of law and economics and professional development. I didn’t simply discover mediation and have an “aha” moment. I recognized it would permit me to develop personal and professional skills that could be nurtured through which I eventually became quite passionate.
How hard was it to transition to mediation full time?
On a scale of 1- 10 with 10 being the most difficult, it was definitely a 10. The reason for the difficulty was that the market had not yet been developed. I found myself explaining to lawyers the difference between mediation and meditation. Once I realized that it was just a matter of educating the lawyers about the financial and personal value of using mediation in their practices, as well as the control they would have over the outcome, it became a joy to educate colleagues. In a way I was one of the early proselytizers in the field, and was called upon to give talks, workshops and write articles for various legal publications. It opened the door for me to study various social sciences that weren’t commonly taught in law school, such as the art of persuasion, improvisation, decision making and neuroscience. As a naturally curious person, these studies ignited a huge area of interest for me to apply to my new profession. My enthusiasm was at its highest level when I had opportunities to share mediation techniques and skills with colleagues, so the transition was both interesting and challenging at the same time.
My connection with Pepperdine Law School in the early 1990s provided both institutional credibility and name recognition while the fledgling field mediation was developing. Many of lawyers who ended up becoming clients were students of mine while teaching “Mediating The Litigated Case” or one of the workshops we conducted for the Los Angeles Superior Court mediation program in 1994. This accelerated my transition and gave me smooth sailing for the balance of my career.
How would you describe your mediation style?
My style is built on the foundation of storytelling. The formulaic approach to mediating that is taught in graduate school is important to learn but is generally boring for the participants. I tend to use a structure which is dynamic and involves the types of heroes and villains lawyers brains are programmed to recognize. They are rooting for their side and I give them the space to do that, but make clear that I am rooting for the settlement. I always confirm the primary problem we are trying to solve and that the goal is to put a value on that problem. My approach is partially instinct driven with a full knowledge of the interplay between laws and and evidence. I integrate improvisational techniques into the story so that each “scene” moves forward deliberately and with a goal in mind. I never keep people wondering what is going on but prefer to be transparent with each party. I don’t follow the outdated grids that are limited to facilitative or evaluative techniques but integrate those techniques as part of the options of storytelling.
What does a mediation typically look like when you are mediating?
If you were to read a great book it generally follows the pattern that looks like: “Once upon a time” and moves on to “until one day” and then “until, finally”. Like a Shakespearean play, there are three Acts to my cases with the final act being the closure or resolution part of the case. The first Act involves defining the parameters of the story and listening to the characters present their visions of what happened and where they want to go. The second Act might include trading numbers to evaluate how far apart we are in the value of the case. The third Act is the conclusion to the story where we have negotiated a solution or I might recommend a solution. Of course, each case is unique so I am prepared to move around or stay in an Act longer or shorter than planned.
What was your first mediation about?
Attempting unsuccessfully to negotiate a cease fire between my mother and her brother who were at war with each other. The timing wasn’t right for the resolution but thankfully it worked out a couple of years later.
What is your biggest accomplishment professionally?
Each day I am in a position to elevate the values of great lawyers and clients so that they hopefully feel they are part of something that makes a difference. From the outside people might look at the billion dollar sexual assault settlements I have been involved in where victims rights have been protected. Or the nine figure settlements in the wage and hour class action field where methods of compensation were corrected to provide relief to thousands of employees. While these might be viewed by some as the “biggest” accomplishments professionally, those cases are simply bookends to a career of unique everyday disputes where each case brings a fresh, new story that has a cast of characters, heroes, villains and plot twists. As mentioned, I view each case as a three act play where I get to play different roles, while moving in between scenes to keep the dialogue going forward. I’m looking for critical story elements and in particular the point of view of the parties. That’s the long way of saying that my biggest professional accomplishment is whatever is happening each day of the mediation.
What are you most proud of outside of work?
My work has taught me how to treat people with respect and dignity, no matter their status in society. I am proud to have relationships ranging from the local barista to the hospital administrator. Aside from that, I am proud of my 40 year marriage, two children and grandchildren.
What are things that you like to do for fun?
I’m a student of different types of music and a guitar hobbyist. Unfortunately my talent is more in listening than in playing, but I enjoy both. This has led me to do deep dives into the origins of blues, jazz and folk music, which has been like an anthropological journey into human history. When I see great musicians playing together I can’t help but believe that they represent the essence of collaboration which helps me understand my field even more.
I’m also a weekend golfer.
Who has been the most influential person in your career?
The guy who said: “Time was the most important asset you had. Don’t waste your time. Don’t be frivolous with your time. As you get older I’ve developed an attitude of “Spend your money foolishly and your time wisely because it’s a lot easier to know what you have in the bank than what you have left.”
What value does mediation add to disputes that you do not find in traditional litigation?
It provides the parties with a condensed experience of our legal system and features opportunities to explore their creativity in ways the civil justice doesn’t permit. It allows people the space to test whether their own confirmation bias will be successful, while concurrently seeing and appreciating the view from the other side. It’s basically the safest place a litigant can have to solve a problem.
How has mediation changed since your career began? How has that affected your work?
The primary focus on self-determination and transformation that captured the field 35 years ago has become diluted in litigated cases. It’s still present but less visible while economic incentives have become the driver of settlements. I think that’s a result of the maturation of the field and the improper utilization of the process on virtually every civil dispute. Some disputes don’t belong in mediation but it’s difficult to tell until you’re in the middle of the process. Due to the pressures on our civil justice system, administrators of that system have used various mechanisms to help streamline case adjudication. One of those mechanisms has been to encourage parties to mediate all civil cases prior to trial. This has developed into a default mechanism for lawyers which is actually not what our founders had in mind. The first two steps in resolving any dispute is communication and negotiation. Skipping over those steps and going right into mediation has resulted in a hit and miss experience on many cases. While I am delighted to be the recipient of the opportunity to relieve the court system of congestion, the system needs a reminder that direct dialogue between counsel is a necessary ingredient to a successful settlement.
What was the biggest challenge you had to overcome?
The challenge of building trust everyday in a group that is often unknown to me is a reminder that this job requires constant nourishment to maintain a high level of success. In the final analysis if the mediator hasn’t developed goodwill with the parties it will be difficult to finish up Act 3 of the play. I spend a considerable amount of time becoming a reliable partner with the people who have given me the privilege of serving as their mediator.
What advice do you have for mediators that are just beginning their careers? Mediators who are feeling overwhelmed or burnt out?
I often ask people who are just starting out what brings them to the table? They usually tell me they are tired of litigation and want to use their people skills in another format. This is a red flag for me in that service as a mediator is putting yourself on the front lines of litigation, taking incoming fire from all sides. It is not for someone who doesn’t have the stomach for the fight. I encourage people to start down the mediation path if they have both a love for the law coupled with the natural ability of bringing others together. It requires extreme discipline on many levels, including taking care of your body and mind. It requires creating new study habits and surrounding yourself with people who are positive thinkers.
One thought on our post-pandemic practice for the new mediator. Consider whether you want to spend your days in front of a computer screen talking to people. It appears that we are now in a world where in person mediation is no longer favored due to the convenience of online communication. That is perfectly fine but many new mediators join the profession for the interpersonal connections. A computer screen can be personal but often makes it more difficult to make those connections that are required for a successful process. It is also is more draining on the mind and body for the mediator on a daily basis. Consider if this is how you want to spend your time.
People burn out when financial considerations override the desire to be involved in the process. This usually occurs in retired judges who join the field primarily for economic reasons but it also happens to lawyer mediators. The signs of burn out are physical and mental exhaustion and a lack of inspiration. I run into this all the time and have a retreat I go to on the Central Coast to recharge and reignite my creative juices. Getting out of town is my recipe to manage burn out.
What do you hope people will know you for?
Being an honest and trustworthy legal consultant who provided extra value to the time they spend with me.
What is your favorite part of your job?
There are three parts to the job that are great everyday: 1) Obviously the part where I get to pull the rabbit out of the hat is like a shot of adrenaline; 2) Having the opportunity to learn new things and experience different approaches to problem solving; 3) Being around very talented lawyers who teach me how to be the best I can be at my work.
To get in touch with Mr Krivis and for more information, please visit: Mediation with Jeffrey Krivis
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