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Bringing a Business-Minded Approach to Mediation: Q&A with Johnson Conflict Resolution’s L. J. Johnson

© 2016 The Texas Lawbook.

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One of the most interesting recent developments in commercial litigation is the manner in which a new generation of mediators is using creative and business-minded approaches to resolving conflict. One of those taking a new approach to mediation is L. J. Johnson, founder of Dallas-based Johnson Conflict Resolution.

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Johnson followed a non-traditional path to becoming a mediator. In an industry traditionally dominated by former litigators or judges, Johnson’s perspective is grounded in deep experience as a real estate professional and in-house counsel who has handled a wide range of issues.

Johnson served as general counsel for three private equity real estate funds that oversaw more than $5 billion in real estate and hospitality assets. As such, his mediation sweet spot includes all matters encountered in the real estate and hospitality industries along with private equity, partnership and finance issues.

The in-house perspective really comes into play in Johnson’s passion for early dispute resolution, and his pro-business philosophy that efficient resolution is often preferable to taking a lawsuit all the way to the mat for a drawn-out jury verdict or 11th hour settlement. This professional background allows him to see the field and identify often-unseen impediments that might delay resolution.

The Texas Lawbook’s Brooks Igo recently sat down with Johnson to hear his perspectives on dispute resolution trends.

Brooks Igo: Given your real estate transactions and in-house counsel background, how did you decide to branch out into mediation and alternative dispute resolution?

L.J. Johnson: As a GC and real estate professional, I took part in numerous mediations as a client and experienced litigation from a business perspective. I saw how ongoing conflicts took a toll on a business from an emotional standpoint, as well as the negative effect it can have on productivity and the sheer economics of prosecuting or defending a lawsuit. I’ve always been intrigued with human behavior and people in general, and I’ve always loved the negotiation process. My mediation practice is a way to blend all of that together. I strongly believe conflict is not good for business and – in most cases – a speedy resolution makes the most business sense, especially in cases where parties will have a continuing relationship down the road. With that as my foundation, the idea of being a go-between to help others reach resolution really appealed to me.

Igo: How does your business and in-house legal experience help you add value to conflict resolution clients and their disputes?

Johnson: I’ve practiced transactional real estate law and worked in the title business, in addition to handling real estate brokerage matters. I’ve always worked from the deal end or the business end of projects. This experience, along with being a GC, has given me the opportunity to analyze and negotiate transactions and the acquisition of assets holistically, pretty much from start to finish. I approach mediation from this viewpoint – I try to make sure the conflicting parties don’t have blinders on, and I work hard to identify the hidden sticking points embedded in a dispute. In basically every situation, a particular dispute is preceded by a hopefully somewhat civil negotiation between hopefully reasonable parties before being memorialized in a written agreement. Then the train derails, possibly due to lack of communication or maybe just total disregard of the agreement’s terms. Emotions rise and lawsuits are filed. If the claim settles, and most do, then it’s the result of coming full circle and once again sitting at the negotiating table. I also know that victory in litigation can take different forms when you look at it from a business standpoint.

Igo: What kind of trends are you seeing in mediation?

Johnson: Mediation is following the legal profession in terms of recognizing the importance of specialization, and lawyers and GCs who hire mediators increasingly want someone who knows their business, knows the lingo and knows how the industry operates. I’ve chosen to focus on areas where I have the most experience and knowledge.

Another trend that is really starting to resonate is early dispute resolution. I’m a huge believer in jumping in early – sometimes before litigation is even filed – to resolve conflicts and keep parties out of long, drawn-out and expensive lawsuits. In today’s in-house environment, there is more legal work, fewer resources and static legal budgets. Saving legal dollars for a GC can help him or her better contribute to the company’s bottom line. Even in cases where resolution is not possible, early intervention has a way of identifying the core issues, facts and documents that need to be addressed, which results in more streamlined and cost-effective litigation. You end up with a more satisfied client. Having stood in the general counsel’s shoes, I know it’s a value proposition that’s hard to ignore.

Lastly, I think there is an opportunity to employ conflict resolution principles and skills early on in the real estate development process to facilitate discussions between project developers and special interest groups such as neighborhood groups or environmental groups, who want the project denied or drastically altered. Texas is a great place for a conflict resolution practice given the amount of ongoing work involving ambitious projects and high profile public-private mixed-use developments, as well as the massive corporate relocations that are driving real estate and business demand in the regional economy. Where there’s that much activity, sooner or later there will be issues that need addressing and conflicts that need to be mediated.

Igo: What is your approach or style to mediation?

Johnson: I can’t say enough about the value and importance of prep work before a mediation starts so that the mediator knows all the facts, the relationship dynamics and the potential sticking points. You’ve got to get to the heart of a conflict before you can truly start settling a dispute. If you’re not able to peel the layers away and find the true conflict between two parties – the emotional makeup – then a true and lasting resolution of a particular dispute is very difficult. When emotions and business relationships are involved, the true source of a conflict isn’t always money, and it’s the mediator’s job to dig in and identify it. Advance prep work allows everyone to hit the ground running in mediation.

I’ve been involved in mediations where you wondered if the mediator had truly read the brief or position paper prior to coming in for a full day of mediation. In those cases, you end up with a mediator spending all morning trying to get to know the parties and asking questions that could have been asked much earlier. I just think there’s a better way to do this than coming in and waiting until the wee hours of the morning to come up with a settlement when the parties are tired, hungry and just mentally spent.

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