Lee Jay Berman
Monday, November 14th, 2022
UCLA, Economics (’83)
YEARS IN PRACTICE
Neutral, 28 years
Mediation removes people from the confines of the traditional litigation march, and allows them to have a different kind of conversation. Sometimes that means sitting across the table from one another and talking about what they would like to see happen. Other times, that might mean having a creative problem solving negotiation, but always in service of moving beyond the dispute.
Lee Jay Berman brings an unrivaled wealth of knowledge and experience to every mediation he conducts. He skillfully wins over even the most stubborn of parties and attorneys together to create a true and viable alternative to litigating the case. By helping each party see the benefits of a mediated agreement, he guides them through their dispute methodically and helps them achieve an outcome that satisfies everyone. He is also a skilled trainer in the mediation world and guides new and advanced mediators through a wide variety of topics to encourage and develop their skills. Learning from or mediating with Mr. Berman is sure to inform, engage, and inspire those who have the pleasure of spending time with one of the most sought-after mediators in the country.
Mr. Berman’s path to mediation was not a standard law school to a lawyer to judge to a mediator that many other mediators follow. Instead, he grew up in a family business, graduated from UCLA in 1983 with a bachelor’s degree in Economics, soon assuming the reigns of that business. Seeking a change in his late 20s, he began working as a Realtor in the greater Los Angeles area, and eventually went to work in land acquisition for a large developer. Seeing that those lengthy negotiations would benefit from a more collaborative style, he took a mediation course, where he found his life’s calling. Soon after launching a mid-sized mediation firm, he founded and ran the Institute for Mediation Studies, offering mediation, negotiation, and conflict management training in Santa Monica. In 1999, he moved to Santa Barbara, California for a unique opportunity to design and launch a new court-annexed ADR program with the Santa Barbara Superior Court, where as Director, he oversaw the court’s panel of neutrals and administered the operations of the Court Administered Dispute Resolution (CADRe) Program. Their CADRe Program fast became a model for other county and statewide court programs . Upon his return to Los Angeles, Pepperdine Law School approached him to take the helm of their “Mediating the Litigated Case” program, where as Director, he lead the programs, coordinating faculty, and expanding it into a nationally recognized training program (ranked #1 in US News and World Report 6 of his 7 years there).
Since beginning his mediation career in 1994, he has mediated over 2,700 matters, which has earned him various awards and titles. In today’s online world, he offers mediation both online and in person.
Mr. Berman’s style of mediation looks for the best result for everyone involved—a win-win outcome. He understands that this is not the first thing that many lawyers and clients think when coming to the table, and has perfected the role of the mediator in identifying this resistance and encouraging the parties to reframe and place better focus on their real goals. He helps the attorneys and parties reconsider what a good resolution is for them in this dispute and encourages them to find a solution that helps achieve this new goal. He does not do this in a flashy way, but in a no-nonsense, business approach that helps attorneys and clients leave the table with a winning solution and feeling less pain and more satisfaction. He organizes the issues and the parties in a way that helps clients move through the dispute in a thorough and digestible way. He understands that the benefits of a mediated outcome will often be far better than a larger litigated outcome because the parties can leave the mediation with a relationship intact, if that is important to them, and having had a collaborative process in which they felt able to participate. His unique process is what has made his practices almost entirely built upon repeat clients and strong personal referrals.
Mr. Berman handles a wide variety of mediations. He tends to focus on complex, multi-party disputes with subject matters ranging from business and employment law to real property and construction to entertainment and partnership disputes and even medical malpractice and personal injury. His practice areas include:
- Breach of Contract
- Business and Commercial Law
- Catastrophic Injuries and Death
- Construction Claims
- Construction Defects
- Entertainment and IP
- Home Owner Associations
- Insurance Coverage
- Intellectual property
- Land Use
- Natural Resource Protection
- New Media and Technology
- Partnership disputes
- Real Property and Development
- Shareholder Disputes
- Trade Secrets
- Wage and Hour Claims
- Wrongful termination
This is only a small sampling of the kinds of cases that Mr. Berman works to resolve, and his services cover a wide variety of disputes – both pre-litigation and during all stages of litigation.
Mr. Berman regularly achieves a resolution rate of over 90% in his practice, and this has made him one of the most sought-after neutrals in the field. His long list of accomplishments, titles, and honors includes:
- 2017 National Academy of Distinguished Neutrals Distinguished Neutral of the Year
- Top 40 Mediators in the USA by Chamber & Partners in 2018-2022
- Top International Commercial Mediators by Who’s Who Legal Mediation in 2013-2022
- Southern California Mediation Association’s Cloke-Millen Peacemaker of the Year 2021
- Acquisition International Magazine’s Leading Mediator of the Year in the USA: 2018-21, and in California: 2012-2021
- “Top Neutral” from the California Daily Journal in 2008 and 2009
- Mediator of the Year in U.S. Bankruptcy Court at the California Central District 2007
- Southern California Mediation Association’s Randolph Lowry Award for outstanding contribution to education of mediators and peacemakers 2009
- Director at Pepperdine Law School’s “Mediating the Litigated Case” program 2002-2009
- International Dispute Resolution Expert at the United Nations Development Programme in 2008-Present
- Certified Mediator with the International Mediation Institute, The Netherlands from 2009-Present
- An Advisory Board Member for Harvard Negotiation Insight Initiative at Harvard Law School
He also has been a conflict analyst for KTLA television’s Morning News in Los Angeles, has been a cohost of the radio talk show called Talk It Over, and has written various articles on mediation and negotiation. When he is not mediating, Mr. Berman spends his free time volunteering and supporting different organizations that fundraise and support children in need and breast cancer research. Additionally, Mr. Berman enjoys serving as a Wine Captain for the T.J. Martell Foundation, where he shares his private wine collection with others in order to raise funds for the Foundation which provides funding for cancer research.
What made you want to become a mediator?
After taking a mediation training course, solely to learn the skills to change a negotiation’s posture from adversarial to more collaborative and aligned, I fell in love with mediation and felt like it was a natural skill for me. I could see both/all sides, and also see a way to align them toward a solution that would work for everyone. After 28 years, I’ve never looked back.
How hard was it to transition to mediation full-time?
It wasn’t hard for me at all! I quit my corporate job and jumped with both feet into starting up a small mediation firm. And then almost went broke! Nobody knew what mediation was in 1993-1994, so getting to a point where I was making a living enough to truly support myself like I had been used to took about four years.
How would you describe your mediation style?
I call my mediation style Adaptive Mediation. I see myself like a good baseball shortstop – on the balls of my feet and poised for whatever they hit to me. With quick reflexes and all the tools, I can run back to a pop fly into the outfield, charge a bunt, pick up a sharp ground ball on a short hop, snag a line drive, and turn a double play, if I need to. To me, that means being ready to sit with people and listen deeply to their stories and/or whip up a negotiation process that will enable people to trade numbers to bridge a settlement chasm. My motto is that there’s no substitute for experience. Like a great shortstop has fielded 10,000 balls, in 28 years, I’ve seen about everything that people can throw at me in a mediation. And, none of it surprises me, or throws me off of my game. So, my style is to see just how collaborative, or even transformative, we may be able to be to help the people in the dispute, and if it’s there, I will lead them there carefully and help them find their restorative justice. And if there’s no place for that, no ongoing relationship or even forgiveness, etc., then I’ll help them to work their way through a negotiation, usually over money, as quickly and painlessly as possible, and won’t stop until we’re done.
What does a mediation typically look like when you are mediating?
Hopefully one can tell from my previous answers that there is absolutely no “typical” in my mediations. Each one is custom fitted to the dispute in front of me. While I may walk in with a Santa Claus bag of tools over my shoulder, I have no set way of delivering them. My style is adaptive, in that it responds to what the people in front of me need me to do to help them bring about a resolution. I’ll put people together in specific formations in conference rooms if I see a way to get ot a resolution. I’ll sit between billionaire neighbors in one of their living rooms to talk about the impact of blocking the other’s views, or I’ll sit with the attorneys to discuss the probability of outcomes on specific motions. Every case is different, and every person within those mediations is a unique individual, so I feel like it’s my job to understand that and respond to what each of them needs from me.
What was your first mediation about?
I was assisting a more senior mediator in facilitating a neighborhood mediation at the old House of Blues in West Hollywood, California. They had wedged that location in among a couple of high rise condos, a handful of existing businesses, and had all kinds of complications with the City of West Hollywood’s traffic and parking divisions, so we had everyone come to the HOB for a mediation to sort out issues related to security, noise, litter, traffic, and parking. It went so well that I conducted monthly mediations for them for the next 18 months. Not a bad first gig!
What is your biggest accomplishment professionally?
That I have been lucky enough to be able to keep doing what I love doing for over 28 years. And that I was lucky enough to get into this profession with timing that allowed me to make a name for myself early, and as such, was offered so many opportunities, whether that meant the ADR Director position in Santa Barbara, the Director position at Pepperdine’s Straus Institute, the many awards I’ve been fortunate enough to receive, or the 2,700 mediations I’ve been lucky enough to do. I’ve helped to reunite families, keep rock bands together that were breaking up, settle cases from the low 4-figures to the high 8-figures, but the biggest accomplishment to me is the friends that I’ve made along the way. I love going to conferences and doing trainings all over the place, and making new friends, and spending time with old friends. And that we get to do that around a profession that we all love makes it really special.
What are you most proud of outside of work?
I love my family, and my nieces and nephews. But, I’m divorced and we were never able to have children, so my work really plays an inordinately large piece of my life. When you say “outside of work”, I have to say that so much of my “life outside of work” really revolves around friends I’ve made in this field, who I’ve grown close to and spend time with, and who have been there for me through all of life’s challenges. And hopefully vice versa. So, I’m the odd one whose life is very intertwined with his work, and I don’t regret any of that. If I have to point to one thing that’s truly outside of work, it’s probably work that I’ve done with the TJ Martell Foundation and the Jessica Berman Foundation to raise significant money for cancer research, and my work in my younger years with the Olive Crest Abused Children’s foundation.
What are things that you like to do for fun?
I am a UCLA alum and have season tickets to the football and basketball games, and those bring me some of my favorite times. I also really love wine, and that has become one of my biggest hobbies – great wine dinners with delicious food and pairings.
Who has been the most influential person in your career?
Ironically, when the Southern California Mediation Association gave me their Cloke-Millen Peacemaker of the Year award last year, I was most touched because Ken Cloke and Richard Millen are/were my two biggest mentors and friends. And, Randy Lowry, who founded the Straus Institute at Pepperdine, flew out from Nashville to help give me the award, and he is my other great mentor as a teacher and trainer in the field. So that night meant so much to me. Ken and Richard are really my heroes.
What value does mediation add to disputes that you do not find in traditional litigation?
I could write a 5,000 word article on this (and perhaps should!). Mediation removes people from the confines of the traditional litigation march, and allows them the opportunity to sit across the table from one another (at least on some days) and talk about what they’re really feeling, and how this dispute has affected them, and what they need to move beyond it. But when it’s not there, when there’s nothing like that to discuss, or people simply don’t want to, then mediation also offers them a place to negotiate back and forth, perhaps with conditional offers, and other techniques to help them reach a resolution in a venue where nothing they say will ever be used against them at later date. So, mediation helps them look forward, where litigation only has them looking backward. And mediation is confidential and protected, where litigation is just the opposite – where everything they say can be a “gotcha” later when they’re on the witness stand in a trial.
How has mediation changed since your career began? How has that affected your work?
Great question. In my 28 years, the biggest change is the sophistication of the attorneys representing clients in mediation. From where I sit, that can be both good and bad. One one hand, it means that the lawyers have spent 30 years figuring out how to “game” (aka manipulate) the mediator. And some are afraid to allow their clients to speak to the mediator or to the other parties in the mediation. But on the other hand, it means that so many attorneys have taken mediation training and have learned to be much more creative problem solvers. It used to be that any creative idea that helped to resolve a dispute had to come from the mediator. Now, more than ever, those ideas come from the litigators. That is the biggest, and best, change I’ve seen.
What was the biggest challenge you had to overcome?
There were two, and they compounded each other. I started as a full-time professional mediator at 32 years old, and I wasn’t (and I’m still not) an attorney. Those two things were the subject of a lot of people’s biases against using me in my early days. In truth, I was young and enthusiastic to find resolutions, and was creative because I didn’t yet know what the norm was. Coupling that with the energy of a young gun, I was much more competent at helping people get disputes and cases resolved than most people were willing to give me a chance to prove. It was over 15 years into my mediation career before I finally sprouted my first gray hairs. Now, I finally look like I’ve been doing this for a while, and my resume has filled in enough that there is enough there to make the non-attorney piece an afterthought. After helping to resolve 2,700 matters, mostly litigated cases, and 10,000 hours of MCLE seminars, I feel like I know my way around most areas of law well enough to be very effective in evaluating cases in those areas of law.
What advice do you have for mediators that are just beginning their careers? Mediators who are feeling overwhelmed or burnt out?
Two very different questions. Beginning mediators need tons and tons of experience, so my advice is to go out there and mediate every opportunity you are able. Don’t worry about getting paid, just get time in the saddle, sit at the head of the table, caucus privately with parties and their counsel, facilitate the drafting of settlement agreements. All of that is what will make you successful.
Mediators feeling burned out can most quickly regain their edge by helping and mentoring other, newer mediators. Teaching and mentoring brings back the spark quicker than anything else I know. The newer mediators’ enthusiasm is contagious, and by teaching them, a seasoned mediator will be reminded of how much they know, and how much nuance they’re used to reading in a room, and will rekindle their own flame in the process.
What do you hope people will know you for?
Giving back and being generous in the field. Right now, I’m especially focused on helping and mentoring younger mediators, especially women and people of color. Our profession is embarrassingly filled with old white men. And has been since I started all those years ago. We are behind in making progress and helping people with diverse backgrounds, upbringings, educations, and life experiences to leverage their unique insights. I think Einstein said, “You can’t not solve a problem with the same thinking that got you into the problem to begin with.” And yet the marketplace keeps hiring mediators who look and think and are educated and have experiences just exactly like those people representing parties in mediations, and somehow expecting a breakthrough. We need to learn from that and embrace and leverage in mediators their different experiences and backgrounds to resolve the really knotty matters.
What is your favorite part of your job?
The gratitude that comes from the people who have resolved their dispute, and with all of the relief in their faces, and wide eyes still disbelieving, they come to shake my hand and thank me, when in reality it was them who did all of the work. Nothing I know is more satisfying.
**For extra credit:
My 15 year old nephew was sitting recently for the PSAT national aptitude test. He called me as soon as he got home, so excited, and told me that the reading and comprehension part of the exam this year was all about mediation! He said that the article that he had to read in the test, and answer questions about, was almost entirely about me. He said that it quoted me all through the article, explaining how mediation was different from litigation, and how it was more than just about resolving monetary disputes, but how it was also about finding out what drives a person, and what their underlying interests are. When I asked him how he thought they picked that article, he said that they specifically look for topics that 15 year olds won’t know much about, so that they have to answer the reading comprehension questions with what they’ve read, rather than bringing in their own, outside life experiences. So, we decided together, my nephew and I, that mediation is maybe now the most popular of the “off the beaten track” professions, so much so that it was ready for national exposure on a standardized test.
To get in touch with Mr. Berman, please visit: LeeJayBerman.com
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