Rex Smith, one of the best-known neutrals in Georgia, was also one of the first. 

Smith, who earlier this year joined Miles Mediation & Arbitration from Henning Mediation & Arbitration Service, said he's handled 3,000 mediations in his 17 years as a mediator, arbitrator and special master.

More than 90% have settled—with about 70% resolving the day of the mediation. Settlements have ranged from $10,000 to $40 million, he said, and involved as many as 10 parties. 

In an in-depth interview with the Daily Report, Smith, 65, reflected on how far alternative dispute resolution has come in Georgia since he handled his first mediation in 2002, and shared how he's been able to achieve such a high settlement rate. 

Asked what has made him a successful neutral, Smith replied, “I really love people, and I enjoy trying to find a resolution.”

Mediation offers a lot more leeway for reaching resolution than litigation, Smith said, which is what drew him to alternative dispute resolution after almost 30 years as a trial lawyer. 

“People need to be heard,” he said. “Mediation gives them an opportunity to tell their story.” 

“I don't know how many neck-hugs I've gotten over the years, but I've gotten a lot,” he added, including one lady who ran up to him at a University of Georgia football game. 

“She hugged me like an aunt hugs you when she hasn't seen you for a while,” Smith recalled, then she realized he didn't recognize her. “You settled my case!” she told him. 

As the neutral, he said, his goal is to draw out the often conflicting ideas from different parties, pull them together and craft a resolution. “It's a different role from a judge. It's a very collaborative process.” 

A Dubious Alternative

Plenty of lawyers these days aspire to become neutrals, perceiving mediation as less adversarial and more rewarding than litigation, but when Smith handled his first case in mediation, a lot of lawyers and judges viewed it as a threat to their practices—and a dubious alternative to litigation, he said.

Smith said lawyers held “a common misconception” that the neutral was representing both sides, and judges didn't have much use for it either. 

Now there are more than 2,600 registered neutrals in Georgia, and just about every judge in the state requires civil litigants to try mediation.

Smith initially turned down the first dispute he was asked to mediate in 2002. At that point, he had tried more than 100 cases and developed a specialty in traumatic brain injury at the litigation defense firm Henning, Chambers & Mabry, which he joined in 1976 after law school at the University of Georgia. That expertise prompted a trucking defense lawyer, Clay Porter, to ask him to mediate a particularly contentious brain injury case. 

Smith demurred, saying he had no experience, but he finally agreed on the condition that the parties sign a waiver acknowledging he was not a trained mediator. After a long day of discussions, the case finally settled around midnight, he said. “It was just exhilarating.” 

Smith took the required training classes and signed on with Henning Mediation as a neutral. His old boss, Ed Henning, had left Henning, Chambers & Mabry to start the ADR firm about a decade earlier—a risky endeavor at the time. 

Smith said he expected to handle a few mediations while continuing his law practice at Mabry & McClelland—but then was faced with three back-to-back trials, all around a Thanksgiving. He called his wife to say he wouldn't be able to make the Thanksgiving dinner she was hosting because he had to prepare for trial. That evening, sitting at a stop sign on his drive home, he said, “I decided I was going to go another way.”

“It focused my mind on what I wanted to do—and probably saved my marriage,” Smith said, adding that it took about a year to transition to mediation full time.

Henning, considered the father of civil mediation in Georgia, died in 2010. In March, Smith joined Henning Mediation's biggest competitor, Miles Mediation & Arbitration, founded by John Miles in 2000.

“Ed was the pioneer and John was right behind him,” Smith said. “I think John Miles and Miles Mediation is the future of where mediation is. There's no one who thinks harder about how to make mediation better and more successful than John.” 

In a sign of how accepted ADR has become, Miles Mediation has expanded rapidly in the last few years. It's now the largest ADR firm in Georgia, with 37 neutrals and offices in Athens and Savannah.

Smith's Technique

Smith said he spends a significant amount of time preparing for a mediation, reviewing complaints, briefs, demand letters and expert reports, but he can't predict how a case will resolve.

“People on both sides are embroiled in a problem that is pretty significant to them—and often have been for years,” he said. 

He's handled medical malpractice, products and premises liability, car, truck and plane accident cases, along with commercial disputes. “I particularly enjoy the difficult, complex cases where it does not look like there is a possibility of resolution,” Smith said.

Emotion colors many cases, Smith said, especially when there have been serious injuries or even deaths. “In so many of these cases there's been an absolute tragedy,” he said, adding that he does one or two death cases per week. “You have to be part priest and help people work through their grief.”

“I tell them in my opening that it takes four things to settle: patience with each other and the process; creativity—which includes thinking about the case from the other side's or a jury's point of view; persistence; and—the hardest part—being willing to compromise.”

Smith starts a mediation by meeting privately with each side to hear their issues. That's followed by a main caucus where each side presents the case from their point of view, followed by rebuttal.

He instructs the parties that their task is to define the gap between what will satisfy each side and then see if it's bridgeable. Then he separates them and shuttles back and forth between the groups, looking for ways to narrow the gap. 

To do that, Smith said he uses a “three strengths” method. He asks each side to articulate the three main strengths of their case and uses that to tell the other side what they need to be thinking about. 

“It can clarify issues quite a bit,” he said.

One of Smith's tactics for settling cases on the spot is the willingness to stay as long as it takes. “I tell people we can go until 1 p.m—or 1 a.m. I try to keep them there as long as I possibly can to look for resolution,” he said, because it's a lot harder once they've scattered.

Bill Casey of Swift, Currie, McGhee & Hiers said Smith was able to resolve a particularly contentious mediation in one day for a case involving five lawsuits filed by five different lawyers, who represented 15 plaintiffs against two sets of defendants.

“Rex was determined to settle all the cases,” Casey said. “It took 14 hours, and I am confident he would have gone another 14 if needed.”