Interview with Niki Mendoza, mediator, arbitrator and special master in Phillips ADR’s panel of neutrals, by Dr. Lynn Phillips, Client Experience (CX) Engineering expert, Berkeley Research Group.
Niki Mendoza is a mediator, arbitrator, and special master at Phillips ADR. After joining the firm in 2019, Niki began a transformative experience as a protégé of Judge Phillips. Having adopted the skillsets, best practices, and tradecraft of her mentor, she is a master practitioner of Judge Phillips’ process for settling complex, high-stakes legal disputes, having co-mediated and mediated on her own hundreds of cases as one of the firm’s most frequently used neutrals. https://phillipsadr.com/our-team/niki-mendoza/
Prior to joining Phillips ADR, Niki was Vice President at Epiq, a leading claims management company for class action and mass tort legal matters where she worked with lawyers, financial and government institutions, and the courts to effectively administer large settlements. For the 15 years prior, she was a litigator and settlement counsel at Bernstein Litowitz Berger & Grossmann, a national class action law firm, litigating and resolving some of its most notable securities fraud and complex commercial cases.
Niki was sent advance preparation questions prior to the interview indicating topics to be discussed. The interview was recorded but it has been edited and some topics covered were reordered for clarity.
(LP): Niki, thanks for your time today. Let’s dive right in. In my other interviews with former clients and current panelists of Phillips ADR, interviewees talked about the firm’s value proposition of delivering to clients high odds of achieving a settlement to their complex legal dispute, the huge economic and non-monetary consequences to client stakeholders of attaining that end-result and how Phillips ADR is designed from the ground up to reliably generate that outcome for the clients it serves.
I’d like to shift gears now and focus on your client value proposition or CVP as a neutral and how it fits into the bigger Phillips ADR picture. The first question that I’d like to ask concerning your CVP as a mediator and why clients should select you among the alternatives they have to mediate their case, is: How do you define your target market of opportunities? What are your major areas of practice as a neutral and who are the target client communities and stakeholders in these areas?
(NM): I’d say the most common practice areas for me as a mediator, arbitrator, and special master are in class actions and mass actions. I’ve practiced in these areas for 25 years. Prior to joining Phillips ADR, I was a Vice President of Client Strategy and Development at Epiq, a leading company in class action claims administration, where I collaborated with lawyers from public and private enterprises and their clients spanning diverse legal matters to efficiently and effectively administer what were often massive and/or complex settlements.
Prior to that I served as a litigator and settlement counsel for 15 years at Bernstein Litowitz Berger & Grossmann LLP, where I was engaged in virtually all stages of litigation, especially in federal courts. Again, I primarily focused on class actions, particularly within the securities and shareholder derivative practice area. As one of the lead counsel in several high-profile and ground-breaking matters, I helped structure and obtain court approval of settlements nationwide.
My litigation background in securities class actions and securities derivative actions is how I got to know Layn. I was in a handful of mediations with him when I was litigating. I also have substantial experience successfully mediating consumer cases, toxic torts, online gaming, and wildfire cases. In some of those areas, I’ve successfully mediated most or all of the settlements nationwide in that space. I find it particularly satisfying when I can bring my knowledge and experience to assist the parties in a niche area that requires some specialized knowledge in a particular case type.
The unique background I bring to any settlement discussion is derived from my career class action experiences and the perspectives I gleaned from them as a litigator and a claims administrator. To add to that, my being a mediator that has primarily a plaintiff’s side background is also unique. This unique insight into the plaintiff’s bar can be helpful when parties are trying to reach resolution.
Because of my unique experience in the class and mass action space as: (i) a litigator; (ii) a claims administrator; and (iii) now a mediator, parties and courts find I’m especially suited to serving as a special master. I’ve been appointed to special master roles related to the settlement and claims administration process, such as to resolve disputes about the validity of claims or allocation of settlement proceeds.
(LP): How will your practice areas and opportunities evolve over the next 5 years? Do you see any shifts in the subjects of disputes in these areas or how they’ll be contested by the parties? Are there any trends you’d describe as novel, emergent, controversial or groundbreaking, dealing with commercial or civil issues that make them future hot spaces for litigation and ADR?
(NM): For the practice areas I work in today, securities and derivative cases are always going to be there and cases on environmental issues are likely to continue to grow. The other areas I tend to have unique experience in employment, discrimination, toxic torts, online gaming, oil spills, IT, and biometric privacy are evolving and are also areas I expect to continue to grow.
(LP): Undoubtedly, clients within your practice areas experience time-consuming and frustrating scenarios when choosing and working with neutrals to settle legal disputes. What ones do you see most often in your targeted client communities and how do you address these?
(NM): Well, first of all, I’d say most frustrations of mediation participants result not from the mediator, but from the fact that the opponent isn’t doing what the other side wants them to do, i.e., they are bending to their will. So in addition to that, there are a number of frustrating scenarios for clients concerning mediations. The big one I am particularly good at addressing is lack of communication or miscommunication. People know me as being easy to talk to, reliable, capable of turning on a dime, and being crystal clear in my communications to the parties. I follow the Phillips ADR policy of transparency.
Other frustrations I hear include that a particular mediation didn’t really address the merits. To me, and Phillips ADR, the merits matter. The facts matter. The judge matters. Over the many years working with Judge Phillips, I’ve absorbed not only his tried and true mediation processes, but also his abilities to quickly grasp the facts and law, and read the room to know what are the underlying challenges and path forward to resolution.
I’ve heard some attorneys say that if it is a case where we know it’s just going to be an exchange of numbers, they would go to any mediator who could facilitate that exchange, whereas it’s well known that at Phillips ADR we really dig into the substance of the case. And we’re well known for our substantial pre-mediation preparation and post-mediation follow up, which I repeatedly hear are greatly valued by mediation participants.
(LP): Let’s shift gears to what may seem an obvious question. What do you see as the pros and cons of you being perceived as a protégé to Layn? After all, the legal world has always been a stage for brilliant mentors who, by working closely with younger attorneys, helped them to master the art of legal argument and become legends in their own right.
Examples are Thurgood Marshall and his mentor Charles Houston, John P. Altgeld and his protégé Clarence Darrow, Judge David Bazelon and Alan Dershowitz, Ruth Bader Ginsburg and her clerks. Fritz Kraemer was the mentor to a young Henry Kissinger. It’s a nigh endless list.
(NM): Ha, ha, I’m not sure that I or even Layn make that list! But you are right, protégés mimic the ways mentors think, speak and act and are guided by them throughout their career journey, especially at younger formative stages. This fits Layn and me to a tee. I don’t try to distinguish myself from him or try to make a name and reputation for myself as a mediator distinct from that of Layn in one way or another. That isn’t my model; I try to mimic Layn’s process and responses to parties before, during and after settlement discussions.
The reason I do this is simple: Layn’s model for mediation is distinct and Phillips ADR’s success is in large part due to the unique process he created, follows, and teaches to others, not just attributes of his persona and his career in the black robe. Having mediated hundreds of cases with him, I’m a devoted follower of his process, so much so that sometimes in settlement discussions I can credibly share with the parties what I would expect Layn to say in response.
I’ve assimilated Layn’s approach to mediation and his tricks of the trade in bringing about settlements. I’ve adopted Layn’s mantra of being “fiercely neutral.” I’m wedded to a neutral process and helping both sides reach a resolution, or at a minimum, gaining information for the parties as to what they could have settled for at that juncture.
So yes, I know my value proposition is based in large part on the fact that I’m a protégé of Layn’s and I see this as a positive.
(LP): Niki, let’s do a quick recap summing up the client experience or CX that stakeholders in your targeted practice areas, client communities and mediation scenarios can expect you to deliver and why. I’ll save us some time here and recap the obvious and then you take it from there, if that’s okay?
First and foremost, the CX you deliver mirrors that of Layn in many respects. Phillips ADR’s great success is based in part on the proven mediation process that he first developed and has continuously honed and the fact that you are one of the firm’s mediators who is most steeped in his process is a centerpiece of the value proposition of your practice. You take it from there.
(NM): I agree! The only build I’d make on my value proposition is that I’ve absorbed Layn’s teachings, and I’m female, which is increasingly important to those stakeholders who understand the value of mediator diversity in reaching settlements, something I and my colleagues at Phillips ADR have written about (ttps://tinyurl.com/padre-taps-value-of-diversity).
A recap of other elements of my value proposition first includes my ability to meet the needs of those parties needing to hold mediations and reach settlement on an expedited schedule. Clients in these scenarios praise me for my executional excellence, specifically my proactive responsiveness, my capability to quickly shift direction as needed, and accelerate time to resolution in those situations where time is of the essence.
Closely related to this is that the plaintiff’s bar and defense bar alike trust me. They have known me for over 25 years. If I lean on them, if I challenge them, or if I tell them, “This is what you are going to have to do if you want to settle at this particular juncture,” they believe me. I’ve not just earned their trust; I’ve earned their respect and recognition that I’m knowledgeable and effective as a mediator and this helps streamline the path to resolution.
Another quality worth noting is my approachability. I definitely get that from both sides of the aisle, plaintiffs and defendants, and the insurance carriers. Relatedly, we’re experiencing an inevitable generational shift, and many of these people are my contemporaries who tend to add approachability to my value proposition.
(LP): Great recap! You’re a hard-to-replicate Layn-protégé who’s uniquely diverse, approachable and capable of meeting the needs of mediating parties. That’s simple enough!
Let’s finish off with one final question. All value propositions have tradeoffs, and that applies to ADR firms as well as all the members of their neutral panel. Best practice requires acknowledging tradeoffs in your value proposition, emphasizing how you will overcome them and ensuring the benefits you offer offset the tradeoffs. Are there tradeoffs in your value proposition?
(NM): One tradeoff that will come to mind for a lot of people in evaluating me as a potential mediator and arbitrator is, “But you don’t have the black robe,” meaning that I wasn’t a judge. Layn and other Phillips ADR mediators who are prior judges command great respect and the parties listen to their counsel in part because of the black robe, and in part it’s their compelling personalities. I don’t pretend to have that same gravitas, and I realize trying to do so would make me lose credibility. So I try to overcome this by focusing on the process, and in particular, on gaining transparency between the parties. I find that so much progress can be made by just actually listening and talking with the parties, and making sure the communication is flowing accurately and freely. Most parties that attend mediation are genuinely there to try to get something done, or at a minimum, see what they could settle for.
I take that task seriously, to either try to settle it at or shortly following the mediation, to get it on a path to settlement, or if neither of those can be achieved, then to find out for each party what they could have settled the case for if they had chosen to do so at that time. That takes open and clear communication.
More on Niki Mendoza: https://phillipsadr.com/our-team/niki-mendoza/
More on Lynn Phillips: https://www.thinkbrg.com/people/lynn-phillips/
*Greene, A., Mendoza, N. and Yoshida, M. (September 2023) How PADRE Taps the Value of Diversity in its Relentless Approach to Resolution. With observations by PADRE’s founder and CEO, Layn R. Phillips, https://tinyurl.com/padre-taps-value-of-diversity
