A Nice Testimonial.

I was humbled today to receive this very kind testimonial from a recent client, Mr. Ed Danowitz, a local attorney.  It is always nice to be recognized.  Thank you for your kind words.

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Kicked out of a joint session?

Over the last year, I’ve been asked numerous times to leave a caucus so that attorney and client can speak privately.  That’s normal.  Attorneys do this for various reasons- keep the “bottom line” from the mediator, allow the attorney to arm-twist his client without appearing too eager to settle in front of the mediator.   I did it myself as advocate.

But I’d never been asked to leave a joint session . . . until this past Monday.

The parties were 99% of the way to settlement.  The total settlement was agreed upon, but some issues remained regarding allocation of payments between the two defendants and a payment schedule.   I was a little skeptical given some of the heated exchanges when the mediation started - three hours earlier; but things had quieted down.  I questioned the parties at length whether this was something they wanted to do and they insisted they could “work it out” themselves.  I reluctantly agreed only because the parties had a prior relationship and the lines of communication had re-opened over the course of the mediation.  Thankfully, it resulted in a settlement that everyone seemed pleased with.

Never again, though.  Too many chances for the deal to fall apart.

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Capitol Hill Comedians

I don’t typically stray into politics, but I saw this piece among my morning reading and found some of the answers quite funny. Political website The Hill sent a reporter to ask - the 97 Senators who aren’t running for President whether they would like to be Vice President. I thought it was an interesting take on the “man on the street” questions you tend to see in small town newspapers (or The Onion). Most of the answers were variations on: “I’d be flattered,” “I don’t want to be presumptious”, “I would definitely consider it an honor,” or “I’m proud to represent the people from the great State of Apathy blah…blah…blah.”

Some of the Senators actually have a sense of humor though:

Sen. Bob Bennett (R-Utah)
“Of course. Big house, big car, not much to do. Why not?”

Sen. Robert Byrd (D-W.Va.)
“I do not enjoy spending a lot of time at ‘undisclosed locations.’ ”

Sen. Maria Cantwell (D-Wash.)
“Does that include any sports picks or anything like that?”

Sen. Tom Carper (D-Del.)
“Yes. Sign me up. I’ve been kidding people for years: The hours are better, the wages are just as good — whoever heard of a vice president getting shot at? — and it’s a great opportunity to travel.”

Sen. Larry Craig (R-Idaho)
“I would say ‘No, Hillary.’ ” [Ed. Note - He shouldn't scoff - he needs a job]

Sen. Judd Gregg (R-N.H.)
“No. I don’t like going to funerals.” - [Ed. note This was my favorite.]

Sen. Daniel Inouye (D-Hawaii)
“If I were asked, I would say, ‘You’re out of your mind.’ ”

Sen. Edward Kennedy (D-Mass.)
“I plan to stick with my current job until I get the hang of it.” [Ed. Note - I won't swing at the softball Teddy Boy just pitched]

Sen. Joe Lieberman (I-Conn.)
“I already have the T-shirt.”

Sen. Lisa Murkowski (R-Alaska)
“My 16-year-old thinks it’s a fabulous idea because he thinks we probably couldn’t find any better residence in Washington, D.C., than the Naval Observatory.”

Sen. Pat Roberts (R-Kan.)
“No. I don’t cut ribbons well or give eulogies at funerals.”

Sen. Roger Wicker (R-Miss.)
“The chances of that are so remote that I’m more likely to be hit by an asteroid.”

Sen. Ron Wyden (D-Ore.)
“I have a unique perspective on this. I am the only senator to have announced I am not running for president because there should be someone here to serve as the Senate’s designated driver. ”

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Last minute cancellation blues.

On Monday, I felt really good about the week.  I had 6 cases on the schedule. Three of which were at a decent hourly rate (I agreed to reduce my normal fee to accept court-referred cases from several exurban counties).  In the last 24 hours, I’ve had 3 of the 4 set for Thursday and Friday cancel.  Just when I thought I’d turned a corner.  I guess I have to take the good with the bad.

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Is anyone else disturbed by the idea of a “Judge Judy” style mediation TV show?

This morning I found a post in my news alert advertising mediation domain names for sale. As I poked around further on the site, I found the following post:

Cases Needed for TV Show

For a new mediation-themed reality show, we’re looking for “Judge Judy” types of cases in Southern California — involving neighbors or family members or co-workers or a retailer-customer conflict or a landlord-tenant dispute or, well, you get the idea. If you know of such a situation, and the parties are willing to waive confidentiality in exchange for having their dispute settled for free, please let us know.

Does this disturb anyone else?  Reality shows, whether in a courtroom, a hermetically sealed house or a desert island, thrive on conflict and confrontation, two of the very things that we are taught as mediators to avoid so that the parties can reach an agreement.  This is ridiculous.

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A little humor at the expense of the University [sic] of Georgia.

If you read my bio, you know I am a proud graduate of the Georgia Institute of Technology, more commonly known as Georgia Tech or simply, Tech.  For well over 100 years, we have had a robust rivalry with our intrastate rival, the University [sic] of Georgia.  Not just at sports, but in life as well.

This picture pretty much sums up that rivalry.

In case you can’t read the small print, the ever witty Dawg fans drew a sign pointing to the Tech dugout that reads “Nerds” and one of our players responded with a sign pointing up that reads “Our future employees.”

FYI, Tech crushed the 8th ranked Dawgs 11-1.  On their home field.

And with barely 150 words, I just alienated all of the UGA and UGA law grads in Atlanta.  Next week, FSU and UF grads…..

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The Pants Judge Files Suit Again! But only for one measly “mil”.

It was bound to happen sooner or later. After being canned last year by the (in part for filing the infamous $54 million lawsuit over his pants), Roy Pearson is suing the District of Columbia for wrongful termination, seeking damages of a mere $1 million. Pearson claims that he is a protected whistleblower who was fired for exposing corruption within the Office of Administrative Hearings.

Never at a shortage for words hyperbole, Pearson claims to have suffered “‘humiliation’ and ‘physical illness’ as a result of his former employer’s ‘wrongful actions.’”

Between this suit and the appeal of the $54 Million Pants case, he’s the busiest unemployed lawyer in America.

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I Made the Cut for Alltop!

In case you haven’t noticed the new “badge” over in the left hand column (likely because you read the RSS feed), my humble blog has been added to the “Law” Category on Alltop, a website that collects “stories from “all the top” sites on the web and aggregates them to a single page. They call this “single-page aggregation.” The founders of Alltop, Will Mayall, Kathryn Henkens, Guy Kawasaki want you to think of Alltop as “a “dashboard,” “table of contents,” or even a “digital magazine rack” of the Internet.”

I’m honored to be listed among the heavyweights of the ADR blog community, such as, Mediation Channel, World Directory of ADR Blogs, Settle It Now Negotiation Blog , Mediator blah…blah…, Conflict Zen, Engaging Conflicts, and Idealawg; as well as some of the best law blogs out there, such as Overlawyered, The WSJ Law Blog, and Above the Law.

Thanks to Alltop for letting us crash the party.

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This is Why You Let That Letter Sit on Your Desk Overnight.

I don’t know about you, but over the years I’ve come across many an opposing counsel I found so irksome, so irritating that I’ve wanted to slap them write that perfectly sarcastic and derisive letter that puts them in their place. Truth be told, I often wrote the letter, but had the sense to print it out, and let it sit on the corner of my desk for a few hours or even over night before pitching it and writing a more restrained version. I felt better for having vented, and maintained a professional appearance.

Oklahoma lawyer Gerard Pignato evidently never learned that trick. A Judge for the Western District of Oklahoma recently found Mr. Pignato to be “‘highly unprofessional’ in his correspondence with plaintiff’s two counsel.” and ordered him to write and publish an article “pertaining to civility and professionalism as they relate to adversary proceedings.”

Among the sardonic barbs Pignato threw at his opposing counsel: “Can you not say anything in a page or less? Who are you? You’re just a broker who refers difficult cases to experienced lawyers. You’re a witness in this case. Be like a potted plant and sit quietly in the corner.”

Ironically, (and I think this is truly ironic and not “Alanis Morrisette ironic“) according to the bio on his website, the AV-rated Mr. Pignato has already published a paper on legal ethics in the Oklahoma Bar Journal.

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What Happens to Agreements to Mediate after Advanced Bodycare Solutions?

Last week, the Eleventh Circuit ruled in Advanced Bodycare Solutions, LLC v. Thione International, Inc., No. 07-12309, (April 21, 2008), that for purposes of the Federal Arbitration Act (FAA) mediation is not arbitration; therefore a party cannot use §3 of the FAA to enforce an agreement to mediate or mediation clause.* While I do not disagree with this specific, limited holding, I am still left to wonder about the enforceability of mediation clauses in light of the court’s obiter dicta.

On the one hand, the Court goes to great lengths to note that “[t]his opinion should not be read as denigrating mediation,” that they “encourage parties to make liberal use of [mediation],”** that they “encourage district courts to liberally employ any authority . . . to order mediation sua sponte.”

Despite all the pleasantries and platitudes about mediation in the final paragraph, the Court seemed to go out of its way to suggest that mediation is little more than a speed bump on the way to the courthouse, even stating that “agreements to mediate are [not] per se unenforceable.” That sounds like judicial doublespeak for “the Court really doesn’t think that mediation clauses are enforceable, but we are leaving open the possibility that there may be very limited circumstances where we may enforce them.”

More after the jump

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