Mediator Focus: Michelle Corsi

By: WAMS Staff

corsi“Navigator” is a word Michelle Corsi often uses when describing her role as an actively practicing trial attorney and member of the WAMS mediation and arbitration panel. With a practice focus that professional liability, employment and personal injury, Michelle’s commitment to clients and effectiveness over her 20-year legal career have earned her top honors and distinguished recognition among her peers. She finds it personally rewarding and challenging to help clients navigate the litigation process which, for most, is their first and only experience with the law.

As a mediator, Michelle uses her perceptiveness and communication skills as navigational tools to help guide parties through mediation to resolution. She sees mediation as a conversational forum in which participants are encouraged to tell their stories and be heard by a neutral, compassionate listener. She prepares herself well in advance of the mediation by reading submissions, contacting counsel with questions as needed, then listening actively to discover the respective parties’ motivations and goals to establish a course for resolution. Michelle’s practical experience as a trial lawyer makes her a relevant guide, as she is current in litigation trends and knows what courts and juries are doing. Michelle says, “I believe that most cases have a resolution point and it is always worth the effort to find it.”

Following a family tradition, Michelle earned her undergraduate degree at WSU, where she, her brothers and cousin often play intramural softball and flag football teams. An English major, Michelle pursuing a legal career after completing a course in Constitutional Law. While at Willamette University College of Law, she earned a Certificate of Dispute Resolution and volunteered in a legal clinic run by local attorneys.

After receiving her law degree from Willamette in 1994, she clerked for a Snohomish County judge before receiving an invitation to join the Lee Smart firm in Seattle, where she is now a shareholder. Years of positive experiences with WAMS rekindled her interest in becoming a mediator was welcomed to our mediation and arbitration panel in 2013 after completing the University of Washington’s Professional Mediation Course and WAMS Advanced Mediator training.

Michelle’s navigational skills are also instrumental in her private life. As parents of two sports Michelle and her husband are fully involved with community events and youth activities in They both serve on the Board of Directors of Pacific Little League, an organization serving 800 and girls playing baseball and softball between the ages of 5 and 18. As a board member and “player agent,” Michelle forms the baseball tea games and organizes the all is also a team coach and last summer coached the team that represented the entire Northwest Region at the Little League World Series in Will Pennsylvania. During winter, the whole snowboarding and skiing at Stevens Pass and Whistler.

Michelle’s personal and professional experience, knowledge and commitment to the mediation process make her an effective navigator for clients and a valuable addition to the WAMS panel.

Mediator Focus: Monte Bersante

“A Man with Serious Rhythm” By: Penny Gans, former WAMS Staffer

Besante“No matter what you’re doing, always try to improve by being creative and bringing a different perspective to bear.”

This philosophy has defined Monte Bersante since his early days as a studio drummer and performer in several Seattle indie bands, including “Killeye Candy”, through his medical training, legal career, community service as Board President of Tacoma’s Broadway Center for the Performing Arts, and as a new addition to the WAMS neutral panel.

Monte grew up in Spokane and was playing drums professionally by the age of 14. He was mentored by older musicians and has always enjoyed interacting with musicians of all ages. Monte still does studio work with indie bands in Seattle, using his two, complete 7-piece drum sets and extensive collection of cymbals and favorite snare drums (some more than 30 years old). When Monte’s parents finally convinced him to “get a real job”, he trained as a cardio pulmonary technician and worked on open heart and cath lab teams at Swedish and Harborview Hospitals. While working full time, he enrolled at Seattle U and earned his BA degree in History, then completed his JD at the University of Puget Sound. After interning with the Washington Attorney General’s Antitrust Division, Monte joined Davies Pearson in Tacoma, where he has been a partner since 1993. At Davies Pearson, he was part of the firm’s evolution from insurance defense to broader representation of personal injury, estate planning, employment, workmen’s compensation and business clients. Monte’s medical background has made him a “go-to” person for medical malpractice and serious injury claims in Pierce County.

When Monte joined Davies Pearson, WAMS mediator Larry Levy was the partner who introduced Monte to mediation, then in its infancy. Representing clients in mediation increased Monte’s appreciation of the process of bringing multiple parties together to work through the challenging emotional dynamics. Monte credits his wife, Syd (President of St. Joseph Medical Center), for helping him learn to deal collaboratively with different personalities. As a plaintiff’s lawyer, Monte’s ability to work effectively and creatively with defense attorneys, adjusters and subrogated interests gave him confidence that he could succeed as a mediator.

Monte stresses the importance of creativity and patience in developing strategies for mediating different cases. Monte believes that the mediation process encourages participants to feel that what they say can impact their case. “This is your case”, he tells them. “Talk about what is important to you.” He frequently calls attorneys ahead of a mediation to learn about underlying issues that may not be apparent in their briefing. For instance, has the plaintiff been influenced by a friend or “sidewalk lawyer” who bragged about a huge settlement received (or heard about) for a similar case? Does a relative’s experience or opinion have a real bearing on this specific matter? Monte emphasizes how important it is for lawyers to evaluate their cases appropriately, prepare their clients for the sort of negotiation that happens in mediation and think creatively about settlement.

Monte’s creativity extends to the kitchen, as weekends are his time to prepare family meals. One of his favorite resources is The Flavor Thesaurus, a cookbook where a cook can choose one ingredient and find dozens of possible pairings with others. His enjoyment of good food is made possible by his daily weightlifting workouts, a legacy of a 2011 lifestyle change that enabled him to lose 85 pounds.

For Monte, one of the pleasures of being a mediator is working with and learning from the many excellent lawyers in the Puget Sound area. Monte’s wide- ranging interests and depth of experience have given him the knowledge and interpersonal skills that are essential in mediation. WAMS is delighted to welcome him to its panel.

Revisions to Rule 39.1

By: Judy Mikel, WAMS Senior Attorney

Under the Local Rules of practice for civil proceedings before the United States District Court for the Western District of Washington, LCR 39.1 addresses Alternative Dispute Resolution. A number of WAMS panel members are on the court’s register of attorney neutrals. Interesting changes were made to LCR 39.1 in late 2012, including the following:

Participation in ADR is no longer mandatory. The court may order participation, but it is otherwise voluntary. LCR 39.1(a). The register of attorney neutrals now requires that the neutral have a physical office within the geographic boundaries of the Western District of Washington. LCR 39.1(b).

LCR 39.1 now includes a process for parties to request a pro bono mediator and requires mediators on the court’s register to accept at least one pro bono appointment per year, if requested to do so, or risk removal from the register. LCR 39.1(b). Also, if the parties do not agree on a mediator from the court’s register, they may select any mediator they wish and adopt their own process. LCR 39.1(c).

Rule 39.1 previously required a conference call to be set up by plaintiff between mediator and counsel. The revised rule now indicates the mediator ‘may’ arrange an initial conference call. LCR 39.1(c).

Although not defined, the rule now requires good faith participation. LCR 39.1(c).

This rule was last revised in 2009. The change from mandatory to voluntary is significant and attorneys practicing in federal court will likely take advantage of the pro bono obligation.


WAMS Certified 39.1 Mediators

Monte Bersante     John Cooper

Michelle Corsi     Pat Duffy

Cliff Freed     Harry Goldman

Tom Harris     Scott Holte

Bill Joyce     Margo Keller

Don Kelley     Larry Levy

Cynthia Morgan     Michele Sales

Kathleen Wareham

It’s True: You Are Known by the Company You Keep

By: Diane McGaha, WAMS Attorney Director

The well-known title above from one of Aesop’s Fables (The Ass and His Purchaser  ) comes to mind when describing the newest members of the WAMS panel of professional neutrals.

BesanteMonte Bersante was a cardiopulmonary technologist before obtaining his law degree and joining the Davies Pearson firm in Tacoma. Monte had several excellent mentors at Davies Pearson, including Larry Levy. Monte was aware of Larry’s progression from litigator to mediator, so it’s no surprise that he chose to affiliate with WAMS as a neutral. According to Monte, “Having performed as an advocate on behalf of both plaintiffs and defendants over the past 20 plus years, it became a natural transition and desire for me to enter the role as mediator where I could assist parties in finding their mutual interests to resolve their disputes.” WAMS is honored to have Monte join the company of neutrals at WAMS, where he will be mediating and arbitrating throughout the Puget Sound region.

corsiMichelle Corsi has spent her career as a litigator with the Lee Smart firm in Seattle, handling commercial matters for plaintiffs and defendants. Michelle’s interest in ADR has evolved over the years from that of advocate to neutral, as she explains: “Approaching twenty years in practice, I have accepted an invitation to join the WAMS panel to expand my practice by using my extensive litigation experience to mediate and otherwise facilitate the voluntary resolution of disputes. The WAMS panel has always exemplified a judicious commitment to resolution of legal disputes whether in arbitration or mediation. I look forward to maintaining that tradition.” There’s no question that Michelle will be an asset to the WAMS panel, particularly in Snohomish, Whatcom and King counties.


Brad Maxa has a litigation practice with Gordon Thomas Honeywell in Tacoma that emphasizes insurance coverage matters. As a result, Brad has spent a lot of time as an advocate for one party of many involved in multiple-party CD and serious personal injury disputes. Partially because of his repeated involvement in mediation of such cases by Bill Joyce and Tom Harris, Brad developed an interest in becoming a neutral. According to Brad, “As I looked to expand my mediation and arbitration practice, I wanted to be associated with the very best. I did not even consider going with any group other than WAMS.” WAMS is very pleased that Brad chose to join the club at WAMS and make himself available to mediate in Pierce and Thurston counties.

FollisJack Follis became a litigator at Anderson Hunter in Everett while Scott Holte was a member of the firm, so it’s only natural that Scott advocated for Jack to become a neutral with WAMS. Since Jack had been a WAMS client over the years, the decision to have him join the WAMS panel was logical for WAMS and for Jack. In Jack’s words, “You are known by the company you keep. That is why I have chosen to be a mediator with WAMS. Being part of such a diverse group of skilled professionals will help me to keep improving my skills.” WAMS is excited to add Jack Follis to its panel as another neutral available to clients in need of dispute resolution services in Snohomish and Whatcom counties.

The addition of Monte, Michelle, Brad and Jack to the WAMS panel in 2013 will expand the dispute resolution options available to our clients. We welcome them and hope our clients will find an opportunity to do the same in the very near future.

Mediator Focus: John Cooper

By: Penny Gans, WAMS Staff

CooperJohn Cooper, a senior member of the WAMS mediation and arbitration panel, is best described by these words of a frequent WAMS client: “John Cooper is a ‘closer’. He evaluates cases well…gets to the point in negotiations and when he feels that a settlement can be had, he closes the case. If the parties are negotiable, John always gets it done.”

During his distinguished career, John has worn many hats. Not only has he been a member of the WAMS mediator panel since 1989, but he has also been a Washington State Court of Appeals law clerk, law firm partner, solo and swing arbitrator, private judge, seminar presenter and author. He has also earned high honors on the golf course and in the kitchen.

John grew up in Seattle and the San Francisco Bay area. He started college at Whitman and transferred to UC-Santa Barbara to take advantage of the very low in-state tuition while he worked his way toward a degree in Economics with high honors. He returned to Seattle and earned his law degree at the UW and spent a year clerking for the Honorable Jerome Farris at the Washington State Court of Appeals. He then joined the Seattle law firm that subsequently became Stafford Frey Cooper. As a practicing attorney, John represented plaintiffs and defendants in a wide range of cases, including negligence and product liability, insurance coverage, commercial, maritime, fidelity and surety law. Because of his experience on both sides of the legal fence, he is often asked to be the neutral or “swing” member of an arbitration panel. In 1989, John represented a client in a WAMS mediation and was subsequently invited to a mediation training session. After joining the WAMS mediation and arbitration panel, his activities as a WAMS neutral soon accounted for nearly 70% of his practice. John changed his relationship with his law firm to “Of Counsel” and became a full-time WAMS mediator/arbitrator.

John’s continued success is based on thorough preparation and his ability to listen carefully to all parties and let them know that he understands their positions. He particularly enjoys the psychology of mediation: reading the participants and “reframing” and delivering messages between them so that progress in the negotiations can continue. John welcomes challenging medical negligence and employment cases because of the interesting legal issues and high caliber of counsel. He thrives on hearing that “You’ll have your work cut out for you on this one!”. As a former trial lawyer, he feels strongly that a successful mediation can be especially therapeutic for the plaintiff, ending the necessity of reliving an unpleasant experience many times to attorneys, doctors and a jury. In John’s words, “I doubt any trial lawyer has ever had a client describe the trial experience as ‘a lot of fun’”. His goal is for all parties to be able to look back at the results of the chosen resolution process and say “that was a good thing.”

Away from WAMS, John and his wife Barbara enjoy traveling to Palm Springs and Hawaii in the winter, as well as taking trips with their eleven-year-old grandson Zach (who has accompanied them to Italy and the East Coast). John’s golf handicap is in the lower double digits, so when the WAMS calendar shows him as “N/A”, it likely means he’s on a golf course somewhere warm (although he also has an annual January golf outing at Bandon Dunes in Oregon.)

To recuperate from the stresses of work and golf, John enjoys spending time in his Bainbridge Island garden and creating delicious meals with his harvest and other local delicacies. A quick and tasty recipe ala John Cooper: Sauté a bit of diced pancetta and finely chopped shallots briefly in olive oil, then add bay scallops for 2-3 minutes; remove, reduce the pan juices with a bit of white wine, and serve with John’s garlic rosemary foccacia bread (recipe provided elsewhere in the newsletter).

John Cooper is truly a multi-faceted man for all seasons and cases and a highly valued asset to WAMS and our clients.

So, You Want To Be a Mediator?

By: WAMS Staff

Every year since 1981, WAMS has received inquiries from “want to be mediators”, attorneys (and non-attorneys) interested in joining the WAMS panel of neutrals. It’s one thing to have the paper resume for becoming a professional mediator, but it’s quite another to be professionally successful in the very competitive market for mediation services. Before venturing into a new career in ADR, WAMS advises a period of serious self-reflection and networking to help determine if mediation will be a good fit for you.

First comes the self-assessment part: do you have the reputation and personality to attract mediation clients and allow them to feel comfortable with you and willing to share personal details and insights? Is your law practice one that has left a trail of bitter adversaries behind or are you known for your professionalism and collegiality in advocacy? Are you in a practice niche that can attract mediation clients through networking with colleagues and former adversaries? The most obvious way to garner a good reputation as a mediator is to first be known as a reasonable, experienced trial attorney with integrity, tenacity and dedication to the legal profession. “Prospective mediators should have some degree of subject-matter expertise, litigation experience and familiarity with both sides of advocacy,” says Diane McGaha, Attorney Director of Washington Arbitration and Mediation Service (WAMS). “Ideally, a mediator will be someone who has been a plaintiff’s attorney and  a defense attorney at some point in his or her career. A mediator should genuinely appreciate what it means to be a litigator in the trenches and have a scheduled trial bumped from the court calendar after a three year wait.”

If, after conferring with colleagues and current mediators, you decide to pursue mediation training, WAMS recommends that you attend the right training for you. It’s easy to assume that becoming a professional mediator is just a matter of attending any convenient 40-hour training program, but McGaha says one crucial step is often skipped at the outset. “Too often, lawyers pay big bucks to attend mediation training, and then ask for advice from others in the profession”. What’s often discovered, belatedly, is that the training attended by the prospective mediator was inappropriate for his/her future area of practice. Before signing up for mediation training, investigate the trainers and training content. If your interest is in commercial mediation, don’t attend a divorce-oriented training conducted by mediators with degrees in social work. While their training format and content may be appropriate for non-attorney mediators interested in child custody disputes, a very different training is needed for commercial dispute resolution. Check out the training links and resources available at as well as at Once trained, try to gain experience with one or more of the volunteer mediation programs available in Washington, including the various Dispute Resolution Centers, opportunities through the courts, EEOC, Settlement Now or Better Business Bureau, just to name a few.

So, what happens next after the training and volunteer work have convinced you that a career in ADR is still in your future? Consider whether you have the administrative and networking capabilities to allow you to be a successful sole practitioner neutral. If you don’t want the responsibilities of scheduling, billing and overhead for hearing rooms, affiliation with a mediation service may be your best option. Most trial attorneys in the Pacific NW are familiar with WAMS, JDR, JAMS and the AAA. Each organization has its own panel requirements, fee structure and administrative policies. At WAMS, for example, a mediator prospect is typically a current WAMS client who has been identified as a potential mediator based on personality and advocacy skills demonstrated over several years of interaction with current WAMS mediators. Mediation advocacy can be indicative of a lawyer’s attitude and aptitude for the practice. For instance, WAMS will evaluate how the prospective mediator prepared both mediator and client for their mediation. When considering whether to add an applicant to the WAMS mediator panel, McGaha mentioned that “One of the considerations I have as the Attorney Director of WAMS is about the prospect’s reputation as a person. Has this lawyer been able to maintain good relationships with opposing counsel despite being a zealous advocate? Has this prospect pursued a ‘win at all costs’ approach to litigation and ruined his or her reputation for integrity and fair dealing in the process? Does this person provide pro bono service or volunteer his or her time to a charitable cause? Is this potential mediator well regarded within the local and legal community?”

While the aforementioned guidelines may provide some assistance to prospective mediators, keep in mind that mediation as a career is an ongoing learning experience. Each member of the WAMS panel has come to the career by a unique path that may not be applicable for anyone else. Bill Joyce was told that he was far too young to be a mediator just four years out of law school. Pat Duffy’s solo practice in Sumner made him an unlikely candidate compared to more high-profile firm attorneys. But both Bill and Pat were determined to have mediation careers in addition to their law practices – and both have been resoundingly successful in that endeavor.

If mediation is your desired future vocation, consider the advice offered above and find a way to make it happen.

Think you have what it takes to become a professional mediator?

For advice or inquiries about WAMS panel opportunities, contact Diane McGaha, WAMS Attorney Director, via email to

Mediator Focus: Michele Sales

By: Penny Gans | WAMS Staff

salesIn her 20+ years as a mediator and arbitrator with WAMS, Michele Sales has earned the respect of plaintiff and defense counsel alike for her understanding of legal issues, her ability to put injured parties at ease in highly stressful situations, and her diligence in following through after the mediation to resolve any remaining issues. As one of her long-time clients puts it, “Michele does more to get a case settled than any other mediator I have ever worked with.”

Michele believes that “most cases should settle, and sooner than a week before the trial.” She values the mediation process for “forcing people to talk to each other sooner than they otherwise might and for helping attorneys settle cases without risking being seen as weak.” She believes successful mediation requires the mediator to have experience in the subject area and come to the table thoroughly prepared. Michele says that although the mediator can’t know everything about the case, it is important to demonstrate to both client and attorney that she is engaged and actively listening. Settlement may depend on the financial situation of the parties, the influence of another similar case, relationships, desire for confidentiality, or other issues that are not initially evident to the mediator. Michele is known for her persistence and encouragement of clients to keep working toward settlement if the case doesn’t resolve at mediation. As the complexity of her mediation practice has grown in recent years, Michele has often found herself without enough time to fully resolve all issues requiring attention. As a result, she decided in 2011 to require clients scheduling with her to devote a full day to the mediation. Michele understands that some of her clients may not require a full day for all of their cases, but she is confident that most of the cases she mediates will benefit from having the additional time allocated.

Michele grew up in El Paso, Texas, polished her “convincing” skills in high school debate, and completed undergraduate and law school at Duke University. An active Duke alumna (particularly during college basketball season, when she “bleeds Duke Blue”), she has served as president of the Alumni Association Board of Directors and as a member of the University Board of Trustees. Duke Law School has asked her to serve as Referee and mediator for major medical product liability class action suits, as well as gender discrimination and sexual harassment class actions against national firms. On a lighter note, it was at Duke that Michele took her first golf lesson, beginning a lifetime of joy and frustration. Michele met Chris, her future husband, while he was a Naval officer stationed in California. His transfer to Italy during her last two years of law school meant summers and Christmas in Italy and an opportunity to spend time in the Navy’s Legal Service Office, assisting with courts-martial. After a move to Seattle in 1981, Michele joined the Oles Morrison firm and spent the next few years handling personal injury, insurance, and employment defense matters, plus “any case that needed a woman”. She became a partner in 1989, then left to establish Steele and Sales with Katherine Steele in 1990, specializing in asbestos litigation. Although Michele had been a WAMS neutral since 1988, it was in 2001 that she became a full-time mediator, focusing on employment, product liability, personal injury, and other areas involving complex legal issues.

Among the many community activities she has enjoyed, Michele singles out her involvement as a member of the Navy League committee to commission ships accepted into the Navy, a ceremony known as “bringing the ship alive”. In addition to working locally on the commissioning of the USS Shoup in 2002, Michele attended the commissioning of the USS Ronald Reagan in Norfolk, VA in 2003, watching Nancy Reagan formally bring the ship into the U.S. Navy. Through her association with the Navy League, Michele became involved with Seafair and served on its Board of Directors from 2002-2009. As Chairman of the Board in 2009, she delighted the friends and colleagues watching her waving graciously to the Seafair Parade crowds from the back of a bright yellow Corvette convertible.

Chris and Michele enjoy cruising in the San Juans and have recently traveled in Spain, Argentina, and New Zealand, sharing their highly entertaining travel blogs with friends and associates. They also try to attend the National Finals Rodeo in Las Vegas as often as possible – Michele is a Texas gal, after all!

A Mediator’s Tools

By: Aaron Calhoun | WAMS Staff

If this organization were a fairy tale character, it would be ‘Doraemon’, because it always meets the needs of the people it serves, no matter what that need is. This organization pulls tools out of its pocket that solve any problem, and it works across generations and cultures… just like Doraemon.”

‐ A WAMS admirer

It is not every day that WAMS is compared to a famous Japanese cartoon character, but if one takes the time to read about the exploits of Doraemon, the famed robotic feline from the future, then the comparison does not sound so farfetched.

Doraemon made his first appearance in print in 1969; the stories centered on a fifth grade schoolboy, Nobita Nobi, and the robotic cat’s efforts to help his friend. Nobita would come home from school and confide in Doraemon about a problem he had encountered that day. The latter would offer immediate advice on how to handle the issue without conflict or confrontation.

Likewise, the first tool used by a WAMS mediator is administrative guidance to all sides in advance of mediation, typically with the help of WAMS Case Administrators. Parties are encouraged to mediate only when the case is “ripe”, after direct negotiations have been undertaken. Pre-hearing memos that identify each party’s view of the dispute are encouraged, as is the participation of anyone with settlement authority. In some instances, this initial preparation leads to a better mediation outcome because the parties are more educated and prepared for the process from the start.

In Nobita’s case, advice alone was never enough; he always asked his feline friend for a device that could fix his problem or help him get revenge against an adversary. At Doraemon’s disposal were futuristic wonders he could pull out of his pouch like ‘The Anywhere Door’ (a door that opens up to any location the user wants), ‘The Voodoo Camera’ (a camera that takes a picture of a person and then creates a voodoo doll), and ‘The Dream Reader’ (a television that allows someone to watch what another person is dreaming about). Although Doraemon’s gadgets sometimes caused unexpected problems of their own, by story’s end, Nobita’s problem would be resolved in some fashion and the clear moral would always come to light: It is better to work through your problems than to take the easy way out by avoiding them or fighting back in anger.

For mediators, the gadgets in their pockets are the tools of their trade that have been proven to be successful and, unlike Doraemon’s, rarely lead to more  trouble. Beyond basic attributes like patience, experience, persistence, and objectivity, an effective intermediary must have the intuition to pick up on cues during mediation, both verbal and non-verbal, in order to develop the strategy to be employed in moving the negotiations forward. For instance, mediators sometimes find it necessary to ask the plaintiff’s friend or relative to “take a break” from the mediation to permit the plaintiff’s voice to be heard. Additionally, there must be a bond of trust created between the parties and mediator that will allow everything from random thoughts to deep secrets to be shared. Sometimes in mediation, information is disclosed for the first time that proves pivotal in finding resolution. One such example was the revelation in a recent mediation of the defendant’s potential bankruptcy filing. Because of that prospect, the plaintiffs chose to settle the case for an immediate and guaranteed payment rather than wait for trial and risk being embroiled as creditors in the defendant’s bankruptcy proceeding.

Problem solving skills are imperative due to the solutions mediation allows for that the courts do not (e.g. meeting non-monetary needs). Margo Keller and other WAMS mediators have used Skype successfully to involve unexpectedly absent participants whose visual interaction was an important factor in reaching settlement. It also does not hurt to have a timely sense of humor that can temper the stress and exhaustion that intense negotiations can cause—Don Kelley is well-known for his efforts at levity. It is an effective way to remind the parties involved that mediation is a nicer, more humane process than going to trial.

Doraemon and mediators alike have the ability to quickly figure out what is at the core of an issue and how to resolve it. By listening to parties in need, offering consultation on how to come to a peaceful resolution, and occasionally using outside-the-box methods, all have the tools at their disposal to resolve disputes. Whatever the case might be, it is good to know that help—whether it be in the form of a mediator with extensive experience and negotiating tools or a robotic cat from the future with a gadget-producing pouch—is there when it is needed.


Mediator Focus: William J. Rush

By: Penny Gans | WAMS Staff

rushBill Rush is a gracious and wise “old school” lawyer with a twinkle in his eye and lifetime of stories to tell. For the last twenty-five years, WAMS clients have benefited from his broad legal experience and mediation skills. Bill’s introduction to mediation came through his participation in the voluntary Federal Court 39.1 alternative dispute resolution program that began on a trial basis in 1968-69. Then in 1986, WAMS founder Michael Gillie invited him to join Harry Goldman and Larry Levy on the WAMS mediator panel, trained by ADR pioneer Alan Alhadeff. Unlike his two mediator trainee colleagues who have been full-time mediators for many years, Bill has continued his private law practice while mediating hundreds of cases at WAMS.

Mentor, teacher, author, occasional Judge Pro Tem and highly respected member of the Washington State Bar, Bill was born in Tacoma and earned his BA from the University of Puget Sound and his JD from the University of Washington law school. His firm, Rush, Hannula, Harkins & Kyler, was founded in 1959 and presently numbers eight attorneys, all graduates of Washington law schools.

In 50 years of practicing law, Bill has represented both plaintiffs and defendants in matters ranging from medical negligence and product liability to construction, business, and family law. He is admitted to practice before the U.S. District Courts in Washington, the Ninth Circuit Court of Appeals and the U.S. Supreme Court. Bill has taken nearly 30 cases to the appellate level, some of which have established legal precedents that are still being cited. His case involving the relationship between emergency room doctors and a local hospital established the Ostensible Agency principal. Another case established rules regarding a general contractor’s overall responsibility for the safety of a worksite. In a third memorable case, Bill won a verdict against the State of Washington when a convict serving a life term in the State penitentiary was included in the warden’s experimental “take a lifer to dinner” rehabilitation program. The convict escaped through the bathroom window of the host’s home, fled to Tacoma, and subsequently shot and killed the owner of a gun shop during a robbery attempt.

As a mediator, Bill feels that his job is to help parties find their own settlement. He believes that the best way to “take the acrimony out of the process” is to separate the parties, although “it’s OK for the parties to be vitriolic with the mediator.” In Bill’s experience, the client is usually well represented by the attorney, who may be aware of facts and issues that are unknown to the mediator. Bill is sensitive to the relationship between attorney and client and is careful to follow the attorney’s wishes as to how he can best work with the client. He encourages attorneys to provide enough case background to enable him to move the negotiations expeditiously toward settlement.

When not working with clients, Bill stays fit playing handball and racquetball and has enjoyed Husky football as a season ticket holder for 50 years. Also an avid traveler, Bill and his wife (a professional photographer) have visited almost every corner of the world. Highlights include a people-to-people trip to China in the early 1980’s to discuss medical malpractice issues with Chinese doctors and court representatives; a behind-the-scenes tour of Oman, Dubai, and Kuwait before 9/11; a 1991 trip to his parents’ Ukrainian birthplace where he met nine first cousins still living there; and journeys to both the North and South Poles. The trip to the North Pole was on a 300-foot Russian icebreaker and included a brief swim in a hole carved out of the ice over 8400-foot deep water while the ship’s armed crew kept a lookout for polar bears. That’s Bill’s idea of fun!

WAMS congratulates Bill on his exceptional career and wishes him many more years of good health and mediation success. Bill, along with Harry and Larry, was honored by WAMS in January for his distinguished career as a WAMS panel member.

Why Mediation Still Matters

By: Harry Goldman | Mediator, Arbitrator

goldmanWhen I joined the WAMS mediator panel in 1986, the concept of mediation in civil litigation was a fairly new idea. It has been my privilege to have participated in the growth of what is now a key component in the litigation process.

Many lawyers were initially hesitant or openly hostile to mediation, as it was perceived by some as usurping the role of counsel. Part of my job was to explain to my colleagues that mediation was actually a useful settlement tool that could be employed by representatives of both plaintiffs and defendants to educate clients about the risks of trial and complexities of litigation. The intervening years have seen a gratifying evolution in attitudes toward mediation, as we now have court-ordered mediation in many jurisdictions. Courts such as the U.S. District Court for the Western District of Washington have implemented specific reporting procedures by the mediator to federal judges. Business contracts commonly require mediation prior to instituting litigation. Mediation and other forms of alternative dispute resolution are frequently taught in law schools. ADR seminars are regularly presented throughout the country; for example, the University of Washington conducts an annual ADR conference that draws an international audience.

If mediation is so firmly established in 2011 as part of the framework of litigation, why would I choose to discuss its relevance and importance now? I believe that mediation is beneficial on many different levels, regardless of the outcome. Of course, everyone wants his or her dispute to resolve, but parties often gain valuable information and a perspective that may not have been present beforehand in that small percentage of cases that do not settle. As a possible analogy to the mediation process, consider that computers were also in their comparative infancy in 1986 and have evolved exponentially in succeeding years. Computer users no longer need to know an intricate version of DOS to operate their systems, and few of us use more than a fraction of the computer’s functionality. We are frustrated when the computer doesn’t perform in accordance with our expectations, even if the malfunction is partly due to our failure as users to properly appreciate and contribute to the proper operation of the computer. That being said, few would deny the benefits of computers.

In a similar vein, users of the mediation process have come to assume that the mediator will succeed in achieving a settlement in every case. This is a reasonable goal as the parties are paying a considerable price for the service and coming to the table to settle the case. When the mediator is a trained professional, the participants have a right to expect that he or she will use experience and skill to craft a settlement of the dispute. It is important for all participants to remember, however, that mediation is a collaborative process that requires everyone to exercise his or her best efforts if a resolution is to be achieved. Success is defined not only by the result but also by how it is accomplished.

In order to achieve success, the mediator needs the assistance of everyone involved in the process. First and foremost, each participant, whether it is the client, the attorney, an insurance claim representative, or any other decision-maker, must be willing to commit him or herself to the effort. If someone is present only because the mediation has been court-ordered, the likelihood of success drops. If an individual is convinced even before the mediation starts of the righteousness of his or her position, believes the sole reason for the mediation is simply to move the other side, is not interested in listening to the opposition, or is unwilling to consider the potential risks of going forward to trial, mediation may not be productive. If all parties are not engaged in the discussion, the mediator’s task is much more difficult. Everyone must come prepared to do what is necessary to accomplish the universal goal of resolution and remain committed to that end.

The relevance and importance of mediation can be sustained through this collaborative effort. In this increasing era of congested court dockets and the ever-mounting expense of litigation, we must use our best efforts to achieve the optimal result for the participants. It is easy to forget that not everyone at the mediation understands the process or is familiar with the format. I always start my mediations by explaining to people who are new to the process what my role is and what the general framework of the sessions will be. I want every person in the room to know what is going on and understand what we are doing and why. It matters how the road is traveled to the final destination.

To achieve the ultimate goal of resolving a dispute in mediation, it is critical that everyone from the most sophisticated user of the process to the bewildered first-time participant become engaged in the effort. I want mediation to be relevant, not only in resolving the dispute itself, but in helping parties appreciate the risks of going forward so they will be comfortable with the outcome.

I am confident as I approach my 5,000th mediation and a quarter century of assisting others in resolving disputes that the process is even more relevant today than it was in 1986. Few people today question the importance of mediation as a settlement tool. A voluntary settlement, even if imperfect, is almost always preferable to a result imposed by a third party. Because of the ongoing commitment of everyone involved in the process, I believe mediation will continue to evolve as an effective way to help settle disputes and will still matter for many years to come.