August 2007 Issue of Metropolitan Corporate Counsel Explores ADR

The August 2007 Issue of Metropolitan Corporate Counsel contains several articles exploring mediation, arbitration and ADR from the perspective of the practicing attorney and corporate counsel. There are some interesting articles, including an article by Frederick D. Berkon of Leader and Berkon, LLP, a New York litigation boutique, which makes “The Case For Mediation In The Defense Of Complex Commercial Litigation” and an article by John E. Osborn on “Effective Closing Techniques For Settling Disputes Through Mediation.”

It was refreshing to read two articles that both unabashedly recommended mediation as the preferred method for resolving certain disputes. In fact, Mr. Osborn’s article is more a paean to the use of mediation than anything else. For example, Mr. Osborn writes,

The dynamics and ‘creativity’ of the mediation process really work . . . What we both know is that our clients have been most satisfied when a mediated solution is reached. Mediation meets the basic needs of the parties to be heard and to reach resolution on the merits, without ‘breaking the bank’ on the cost of litigation.

Mr. Berkon’s article also lauds mediation as “a unique setting that can be more effective in resolving a complex commercial dispute than a formal trial or arbitration setting.” But he also explores the critical thinking necessary to make a successful mediation, noting that

A thorough assessment of the strengths and weaknesses of the case in its entirety must be conducted; a candid analysis has to be made of whether the judge (if a bench trial) or jury will be able to comprehend the critical and complex issues simply from hearing witness testimony and viewing documents. The client must be fully briefed on the strengths and weaknesses of each critical issue of the case and the likely outcome of the trial. Accordingly, the client must enter into mediation knowing their counsel’s opinion as to the best and worst case scenarios, and the financial ramifications associated with each.

In the section entitled “How To Be Effective In The Mediation Process,” Mr. Berkon points out that, “It is important to emphasize a commitment to the mediation process. Thus, writing in a fair and reasonable tone, rather than an argumentative and aggressive one, will establish credibility at the outset.” Many attorneys fail to understand this aspect of the mediation process and adopt an “argumentative and aggressive” tone. I was glad to read Mr. Berkon address this in such a positive and instructive manner.

It was a little disarming to read, however, that Mr. Berkon believes that the mediator “[should be willing to] communicate to the parties that he or she is, in effect, functioning as an arm of the court at the outset, and is, thus, obligated to go to all necessary ends to resolve the matter.” I would humbly disagree with this assertion and suggest to Mr. Berkon that it is the parties, not the mediator that must be willing “to go to all necessary ends to resolve the matter.” Mediation is still a voluntary, non-binding process and try as one might to cloak the mediator with the color of authority, even the best mediator cannot force parties to take a deal they are otherwise unwilling to accept.

There are several other articles on the Metropolitan Corporate Counsel worth your time, including an interview with Robert B. Davidson, Executive Director, Arbitration Practice of JAMS, and an interview with several prominent members of the ADR community about “Strategies For Successful Interaction With ADR Neutrals.”

LinkedIn – My Space for business people?

Maybe I’m late to this game, but yesterday I was invited to become “connected” to a colleague via LinkedIn. For the other uninitiated, its a networking site. You invite your work colleagues, associates and friends, and then they invite their work colleagues, associates and friends, and like that old shampoo commercial, they’ll tell two friends, and so on and so on . . . All of a sudden, you have tens of thousands of potential contacts! It has a global reach as well – Geoff Sharp is in the network.

It seems like a great idea – until you realize that you can’t directly contact most of the people on the site unless you “upgrade” to a better membership. To the tune of $20/month. I’m going to give it a whirl and see if I can build a list of colleagues. So, if you receive an email from LinkedIn with my email address in the body, its legit. Don’t dump it into your spam folder!

A new form of “Alternative Dispute Resolution” – Rock Paper Scissors?

Mediators often discuss with the parties the risks inherent in litigation as a means to encourage the parties to think seriously about compromise. They will say things such as, “mediation is the last best chance you have to control the outcome of your case” and “juries can be unpredictable.” In response, parties often tell mediators, “I’ll take my chances at trial.”

But would they take their chances at a game of Rock Paper Scissors?

An Interesting Practice Related Blog – A Mediator’s Dilemma

Reading through the mediation related blogs on the World Directory of ADR Blogs, I came across A Mediator’s Dillemma, an interesting blog that explores the situations when “the mediator, no matter how skilled, reaches the bottom of her mediation toolbox, and begins to think about divine intervention.”

Administered by Regina Mullen, a mediator-arbitrator practicing in the Seattle, WA area, A Mediator’s Dillemma aims to “collect wisdom on the dilemmas faced by mediators as they strive to maintain neutrality in working with difficult mediation sessions” and is actively seeking stories, triumphs and techniques. I suggest you check it out and, if you have some thoughts to share, post a comment.

Lesson IV – Refrain From Making Numerical Evaluations Until The Parties Are “Almost There.”

As you recall from earlier posts, our Mediation Road Warrior participates in well over 100 mediations per year. He sees the good and the bad (hopefully the bad only once) and has agreed to speak to me about what makes a good mediator. We’ve already spoken about opening statements, apologies, and the “bottom line.” Today we will discuss the mediator’s evaluation of the parties’ positions.

Mr. Smith prefers mediators who use an evaluative method and provide opinions on the value of the particular case. In personal injury matters such as he handles, most of the special damages are certain – medical expenses, lost wages, etc. Since non-economic damages such as pain and suffering are left to “the enlightened conscience of an impartial jury,” Mr. Smith has to rely on his local counsel and the mediator for intelligence on the tendencies of local juries. He finds it helpful when an experienced mediator can give an informed opinion on recent jury verdict in similar matters or suggest that the county is conservative and returns defense verdicts on borderline cases.

While Mr. Smith believes that such counsel from the mediator can be useful, he suggests that the mediator refrain from providing such an evaluation until the parties are at least two-thirds of the way towards settlement, or until a party asks. Much like the mediator that asks for the bottom line, the mediator that provides his own evaluation of damages too early on appears to be pushing the parties towards a specific number. Many mediators are loathe to provide a personal opinion, but Mr. Smith does not think there is anything wrong with stating, “Well, I’ve been practicing in this county for X years and in my experience, juries tend to give awards in the range of Y to Z.”

Most of the feedback I’ve received suggests that lawyers want a mediator who will provide some evaluation of the case. In that case its key to know when to provide that evaluation.

BE! LI-TI-GIOUS! B! E! LI-TI-GIOUS ! !

According to the Victoria Advocate, poor Wycoda Fischer was one of seven girls to try out for the for the Yorktown Texas High School JV cheer squad, which, according the school’s Cheerleader Constitution (I’m not making this up), consists of only six girls. Unfortunately, she did not make the squad. At a grievance hearing before the school board, he parents claimed that their daughter should have been allowed on the squad because the varsity squad allowed a ninth girl to join, even though the Cheerleader Constitution (again, I’m not making this up) calls for only eight girls. This argument didn’t persuade the school board, which voted 5-1-1 against poor, pathetic Wycoda.

So, rather than send Wycoda to cheerleading camp to polish up her Rah Rah Rah’s and her Siss Boom Bah’s and hope she makes the squad next year (she is a freshman, after all), her parents claim to “have no other option but to sue the school district.” They are bereft of alternatives. Devoid of choice. Backed into a corner.

At least her mom didn’t try to kill one of the other girls . . .

P.S. Overlawyered actually references at least three other ridiculous lawsuits involving cheerleaders, and The American Bar Association Journal actually published an “overview of suits arising when girls aren’t picked for the cheerleading squad” in 1991 (Link no longer active). Sad.

Proposed Change in Georgia Evidence Code Clarifies Confidentiality of Statements Made During Mediation

One of the bedrock foundations of mediation is the confidentiality of its proceedings. It is generally accepted that the matters discussed in a mediation cannot be introduced as evidence or otherwise used in any subsequent legal proceeding. Free from the concern that their willingness to compromise might be used against them later, the parties are encouraged to discuss candidly the strengths and weaknesses of their position, their underlying interests, and options for settlement.

Under Georgia law, however, it is possible that some statements made during settlement negotiations of a claim considered “undisputed” may not be protected. Georgia law makes an obscure distinction between offers to settle an uncontested claim (which are admissible at trial) and offers to compromise a contested claim (which are not admissible at trial). See, e.g. Houston v. Kinder-Care Learning Centers, Inc., 208 Ga. App. 235; 430 S.E.2d 24 (1993).

As part of a comprehensive update of the Georgia Evidence Code, the Evidence Study Committee of the State Bar of Georgia has proposed a new rule which substantially follows Federal Rule of Evidence 408 and specifically excludes “Evidence of conduct or statements made in compromise negotiations or mediation.” See, proposed O.C.G.A. §24-4-408 (at p. 40).

This change will align Georgia with the Federal Rules and with the majority of states that specifically protect all statements made during mediation and other, informal settlement discussions.

Lesson III – Never Ask a Party Their Bottom Line.

As you recall from earlier posts, our Mediation Road Warrior participates in well over 100 mediations per year. He sees the good and the bad (hopefully the bad only once) and agreed to speak to me about what makes a good mediator. We’ve already spoken about opening statements and apologies, and today we will discuss the “bottom line.”

One thing he has seen several mediators do with which he strongly disagrees is ask a party their bottom line. In his experience, a mediator that asks for the parties’ bottom line will push the discussions toward that number faster than Mr. Smith would like, rather than allow negotiations to proceed in the natural fashion. Since he often has limited flexibility in his settlement numbers, if the mediator pushes the talks to his ultimate authority before the opposing party makes significant moves, the mediation may fail. He feels it is best that the mediators never ask, and in fact, Mr. Smith will typically refuse to answer.

More on the Power of Apology

While I was surfing around this morning trying to determine whether I could become certified as a mediator in Florida, I came across the blog of Perry Itkin, a Florida Supreme Court certified mediation trainer. His most recent post also discusses the use of apologies and references an excellent article in the June 2007 issue of The Washington Lawyer entitled, “The Art and Power of the Apology.” The article dovetails nicely with our Mediation Road Warrior Mr. Smith’s observations on the benefit of an apology discussed earlier.  Please check out both Mr. Itkin’s blog and the article on The Washington Lawyer website.

Wacky Warning Labels

Have you ever picked up a product, looked at a warning label and said “Duh! Who would try something like that?” Chances are, someone did, and worse, sued, which is why the label is on there. Michigan Lawsuit Abuse Watch is a self-styled “watchdog” organization whose stated goal is to reduce to number of “junk lawsuits,” compiles a list of these wacky warning labels and awards money annually to the person that sends in the funniest.

Frivolous lawsuits can cost the innocent parties involved tens or hundreds or thousands of dollars and efforts to reduce them should be applauded.  A recent survey poll of federal judges revealed, however, that

approximately 85% of the district judges view groundless litigation in such cases as no more than a small problem and another 12% see such litigation as a moderate problem. About 3% view groundless litigation brought by plaintiffs who are represented by counsel as a large or very large problem. For 54% of the judges who responded, the amount of groundless litigation has remained relatively constant during their tenure on the federal bench. Only 7% indicated that the problem is now larger. For 19%, the amount of groundless civil litigation has decreased during their tenure on the federal bench, and for 12% there has never been a problem.

With that said, there are some ridiculous, and outrageous and just plain stupid lawsuits out there.  We might as well laugh at them. Without further ado, here are some of my favorite warning labels from the MLAW Wacky Warning Labels website and Dumb.com :

• On a cell phone box – “Don’t try to dry your phone in a microwave oven.”

• A label on a baby stroller warns: “Remove child before folding”

• A brass fishing lure with a three-pronged hook on the end warns: “Harmful if swallowed”

• A label on a hair dryer reads, “Never use hair dryer while sleeping”

• The label on a bottle of drain cleaner warns: “If you do not understand, or cannot read, all directions, cautions and warnings, do not use this product.”

• Stridex Foaming Face Wash – “May contain foam.”

• Komatsu Floodlight – “This floodlight is capable of illuminating large areas, even in the dark.”

• Rowenta Iron “Warning: Never iron clothes on the body.”

Have a great weekend.