We are excited to introduce Daya Naef for this month's Meet D1's Neutrals feature! Daya is an experienced arbitrator and mediator, with over 20 years of practice. She attended Loyola University New Orleans School of Law studying Civil Law and International Law. We sat down with her, virtually, of course, and asked for her to tell us more about her mediating style and to share practical tips with our fellow ‘dispute resolvers.’ D1, Meet Daya!
DAYA'S MEDIATION PRACTICE
When and why did you choose to become a mediator?
As early as law school, I was interested in learning a more direct route to dispute resolution than what seemed like the very tedious and complicated route through litigation. When I graduated, however, family law was the only mediation certification you could get, so I decided to hold off. I started my law practice in New Orleans right after Hurricane Katrina in 2005. Having grown up in the construction industry, I already had subject matter expertise in what was an important subject at the time. Since then, construction has been my focus in both the practice of law and now, since 2012, in the practice of alternative dispute resolution.
I had been using dispute resolution in my practice, but it was not until I was taking time off from practice, while recovering from a major car accident, that I did my 40-Hour Certification and joined the Mediatory Registry in Louisiana. Coming back, I knew I wanted to do more ADR and less traditional litigation. Now I have done over 200 hours of certified training, both nationally and internationally, and I can say I'm pretty well-versed in what's new in the world of mediation.
Can you describe your mediating style?
My purpose and my goal is to get the project back on track. So, my practice is more of an extended pre-mediation where we're not usually together in a room, or Zoom room. Instead, it's more facilitative. I strive to work out as much as possible between the parties before we have an actual “sit down.” The way that I approach things is to resolve them with the parties. For instance, contractors and subcontractors have a lot of friction getting jobs completed. I get their information and see where the commonalities are so that we can keep the job moving or, if it is at completion, work it out so that the parties part as professionals who are able to work together again. Or should they choose to not work together again, then I hope that they part from a better position – a position of completeness – not with animosity where it's going to be gnawing on them and making them want to badmouth the other person after the process.
Do you have a standard mediation practice regarding pre-mediation exchange of information/memorandum and joint sessions? If so, what is it?
Once we all agree we're going forward with the objective of getting the project back on track, I have the parties make individual statements on an audio recording, either on the phone or Zoom recording (or write a written statement if they prefer), and have them send it to me. I then have them upload the contracts, pictures of what's going on, and any other statements that they want to take. I peruse this information and bring myself up to speed on the job with the goal of finding out (1) where they are on the job, (2) what their commonalities are, and (3) where their sticking points are. Then I go back and interview them separately to see where we can make more alliances. Again, my goal is to keep the job going.
If there are still some sticking points after those two conversations, and especially if there's a job-stop pending, then we schedule a time to get on Zoom together. On Zoom, I go over the things that we have accomplished so far and then the things that we haven't accomplished yet. Believe it or not, at this point, it is pretty smooth sailing getting to a resolution between the parties since we all agreed on that objective from the beginning. So, then my work is done until a new dispute arises.
What is a common mistake you see parties and/or their counsel employ in mediation and what steps do you recommend to avoid it?
A mistake I see with parties is that they either do not take it seriously or do not understand the value of actually having a dispute resolved in this alternative manner. As a society, we are litigious-minded and we see going to court as a ‘thing.’ As dispute resolvers, we have the ability to remind parties that they have the power to make their own decisions, with someone who is a neutral third-party holding the space from them when making those decisions. Reminding parties that it often is just not practical to go to court and that there are other options is very important.
I've been doing surveys over the last year or so the find out different construction companies' legal budgets. The data suggests that there is a certain threshold where a company hires a general counsel. I would encourage those that are not yet there to think about the alternative solutions. For example, I have encouraged some of my clients to consider hiring a project neutral or a pre-engaged dispute resolution professional for the duration of the project. I'm also working with D1's Toolbox talks, enlisting some examples from our D1 members who are using Early Dispute Resolution as In-House Counsel. Be looking out for that event January 28, 2021!
What is the most important skill to have as a mediator?
Listening skills, seeing the big picture, and creating an environment for people to pause, be listened to, and be heard. Sometimes in the fast-paced world of construction, you have to get people out of their hamster wheel a little bit and say, “okay, look, I am really here to listen to you, but need you to help me help you.” So, I guess it is like being part mediator, part social worker. Also, cultural sensitivity skills, especially in this virtual era, are important. It is best to avoid culture shock when “Zooming” into different areas of the country by going slowly and adjusting to the norms.
How can ‘dispute resolvers’ better resolve disputes?
Gaining a comfort with working on video and using technology are important skills for 'dispute resolvers.' We've gone from typewriters and dictaphones to fax machines and email to now Zoom conferences. There are great benefits to this new technology, especially in terms of real-time document sharing, that I think everyone should get on board with (if they're not already!). I’ve been on a committee in the DR Section putting together an info-video for attorneys and their clients to get familiarized with what a Zoom mediation looks like and what they can expect. That should be out by the Spring meeting. Stay tuned.
How does the Forum and Division 1 relate to your arbitration practice?
I've had the best time being in the Forum. I've been to the meetings in Nashville, Philadelphia, and Chicago, as well as New Orleans. My first Forum experience was when the meeting was in New Orleans, I think it was 2006 or 2007, right after Hurricane Katrina. I had just started my law practice there and someone actually reached out to me and said that they'd waive my conference fees if I came because I was a young woman professional member who just started practicing. The meeting was just great. I joined Division 8 because I was interested in learning more about construction internationally. Afterwards, we all went to dinner at Delmonico's private room, and just had a ball. I could not believe that I was so young and new to practice, and yet had the opportunity to meet some of the some of the stars of the Forum at the time. Since then, I've gotten more involved with the ABA. I’m serving a second term as co-chair for the Women in Dispute Resolution (WIDR), as well as being one of the liaisons between the Forum on Construction Law and the DR Section.
So, the Forum has clearly served as a resource for my development. There are certain members that if I have a question or somebody needs a referral, I literally just hop on LinkedIn messenger and send them a message. Similarly, , in a matter of minutes, I can find an attorney in San Antonio for something because I've met someone through the Forum. The Forum has built a community, or like a fraternity, of the legal practice that we don't always get anymore. We have such a diversity of practice now, too. The Forum is all over the country and we do all these different things. It's so amazing.
What hobbies, activities, or interests do you do outside of work and the Forum?
I'm an artist. It's a pretty dedicated hobby. I've gone to art school and studied in Italy, D.C., and New York. I draw with charcoal and pencil, usually figure studies. So, yes, that's nude people. Sometimes people think that's weird, but it does come from the classics – Michelangelo, Leonardo da Vinci – classical art school, as opposed to modern art school. I love it.
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As the litigation and dispute resolution division of the Forum, our members regularly serve as arbitrators, mediators, and other neutrals who resolve disputes. In an effort to promote and educate our membership about our talented neutrals, D1's Incoming Chair, Tom Dunn, decided to spearhead a series here on The Dispute Resolver blog to feature our Division 1 Neutrals (email him at rtdunn@pierceatwood.com if you'd like to be featured!).
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Daya J. Naef, Esq. is a third-generation member of the Construction and Real Estate industries. At an early age she gained experience working with her family’s residential construction company and was in close contact with relatives working as realtors, brokers, interior designers, developers and commercial contractors. When she decided to pursue her legal career, specializing in construction was a natural fit. She has represented general contractors, subcontractors, suppliers, owners, developers, condominium associations, property managers, design professionals, agencies, associations and municipalities/non-governmental organizations in Michigan since 1999, and Louisiana since 2005.
Because of the depth of Daya’s knowledge of construction law and her excellent communication skills, her clients know what to expect in terms of time, outcome and cost. By choosing Daya Naef, LLC as your consultant, mediator, arbitrator, or legal service provider, you will gain reliable expertise and excellent service.
Contact Daya: daya@dayanaef.com | 504.669.1020
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