When do you cross the line and start providing legal advice?

Let’s assume the following mediation scenario:

A Vendor provides goods and services to a Buyer under a contract. The Buyer pays half upfront and then refuses to pay the remainder when he expresses displeasure with the service. The Vendor files suit against the Buyer, claiming damages of more than 3 times the amount due and payable under the contract. At mediation, the Vendor almost immediately reduces his demand to the amount due and payable plus court costs, and then freezes his position. After two plus hours, the Vendor continues to believe that he has made significant progress by reducing his demand by an apparent two-thirds.

Now, at this point, it might be useful to know that the Vendor is pro se and the Buyer is represented by counsel. For whatever reason, the attorney for the Buyer never pointed out to the Vendor that under the law, the Vendor could not have received three times the amount due under the contract, and was limited to the amount due plus consequential damages and interest (I’m simplifying of course).

The lawyer in me wanted to tell the Vendor that his “concession” was essentially worthless, because, he moved from an amount he could never legally recover to essentially the full amount of his claim. I controlled these strong urges and worked around the problem, finally getting the Vendor to come down to a number that the Buyer was willing to pay to resolve the dispute.

When I debriefed the case with the mediation coordinator and another mediator (within the confines of confidentiality, of course), they both believed that telling the Buyer what he could recover as damages was technically “providing legal advice,” which is considered a big no-no ’round these parts. I am not so certain. If the party’s bargaining position is founded on an erroneous assumption and pointing out that error may help progress the discussion, why shouldn’t a party benefit from my experience?

In divorce proceedings, for example, the mediator works through the parenting plan and child support guidelines with the parties, discussing what can and what cannot be considered when calculating child support. This is an interpretation of the law.

I am very interested in hearing from all of you on how you deal with this.

Dust in the fan……..all it was was dust in the faaaaaaaaaaann. ooooohhhh.

Turns out the thermal event was caused by dust in the cooling fan. The dust gets sucked into the computer and attracted to the fan because of all the static electricity. It prevents adequate cooling. When the CPU reaches a certain temperature, it shuts down.

So, my free tip of the day: Get a spray duster, open your (desktop) computer once in a while, and dust off the big fan in the middle.

I may be offline for a few days

The fan that cools the motherboard is dead and my computer keeps shutting down for a “thermal event”, which is fancy computer speak for overheating. Thankfully, its under warranty and I can take it in to get serviced. While they fix it, I will likely be offline and going through the DT’s or whatever it is internet junkies go through. So, I apologize to the 5 of you who read my blog regularly and to the new people who had the misfortune of finding this the week I can’t post new content.

On Thanksgiving, Thoughts About Mediation and Dispute Resolution from the Native Americans

On this holiday traditionally associated with the first peaceful gathering of English colonists and the Native Americans who helped them survive the hostile wilderness, I thought it fitting to post a link to an interesting article from Mediate.com by Joe Epstein, “The Wisdom of Native Americans.”

Mr. Epstein’s article describes

twelve values inspired by Native American wisdom. Each value will be defined used traditional Native American quotes. We will then use actual stories and give examples and tips on how each value can effectively aid in a dispute resolution.

While the article focuses on the usefulness of these values in a transformative mediation setting, I believe that many can be successfully applied by both facilitative and evaluative mediators as well.

Enjoy and have a Happy Thanksgiving holiday.

18 Year Old Passes Bar; This Blogger Feels Old.

The WSJ Law Blog reports that 18 year old Kathleen Holtz passed the California bar exam on her first attempt (a feat not accomplished by the former Dean of Stanford Law!). This prodigy entered college at 10, UCLA Law at 15 and got a spot on the Law Review, and this past month she rode shotgun on a two week trial.

I feel old.

Vick Surrenders; Starts Serving Sentence Before Being Sentenced.

In a tacit acknowledgment that he is going to jail for a considerable time, Michael Vick surrendered to Virginia authorities yesterday a full 20 days before his sentencing hearing. While his lawyer, Billy Martin, portrayed this move as demonstrating Vick’s acceptance of his fate, it was likely motivated by some mental calculation of when his possible sentence might end – say, summer 2009; just in time for 2009 training camp. It is also undoubtedly an attempt to show some level of contrition to the judge in the hopes of a lighter sentence, the same way his PETA “sensitivity training” was. The fact that someone in his team of advisors believes that the Court, a former prosecutor and U.S. Attorney, will be swayed by this meaningless gesture really is astounding.

Mediation Saves UK Businesses £1 Billion (while costing only £8 million!)

The UK non-profit Centre for Effective Dispute Resolution reports that

By achieving earlier resolution of cases that would otherwise have proceeded through litigation, the commercial mediation profession this year will save business in excess of £1 billion a year in wasted management time, damaged relationships, lost productivity and legal fees.

The study also yielded some interesting findings, including the fact that “The mediation fees of the ‘top’ mediators are now average £3,120. 13 per cent of experienced mediators, each undertaking 50-100 cases a year, are earning £282,000 or more per year (in 2005 this figure was £177,000).

Cheerio, mates. I’m packing my bags for Jolly Old England….

Look out Letterman, Here Comes Nino Scalia

A D.C. based politico-legal blog has named Justice Antonin Scalia “The Funniest Justice.” According to their review of Supreme Court transcripts, so far this term, “Scalia is the justice cracking ‘em up the most during verbal exchanges in the hallowed halls,” making the crowed laugh a total of 17 times. He’s running away with it, since Chief Justice Roberts is in second with 8 “giggles.”**

With the Hollywood writers on strike, maybe Nino will agree to write some jokes for the late night talkers….

**In no surprise to anyone who follows the Diana Roberts and the Supremes, Justice Thomas hasn’t said a peep, much less make people laugh. They note, however, that Justice Thomas “whispers to Justice Breyer, whom he cracks up on a regular basis.”

The Wall Street Journal Suggests Mediation as Alternative in Securities Cases

I came across an interesting article today about the use of mediation in securities disputes. Oddly, it was no more than 2 hours after having lunch with a local securities lawyer who suggested I get certified as an NASD arbitrator.

I found this comment interesting and a little disturbing:

Lawyer Steven Caruso, past president of the Public Investors Arbitration Bar Association, a group of attorneys who represent investors, says a potential conflict of interest exists for mediators: “They want to do a fair job, but they’re going to get more business from the brokerage firm than the claimants’ attorneys.” That said, he and other investors’ attorneys say they know mediators that both they and defense lawyers trust.

So, which is Steve-o? Are we biased because we want repeat business or can you trust us?

Phone troubles

Is there anything more frustrating than phone troubles? Right now we are having trouble with our VoIP phone and I can’t help thinking that a prospective client is now calling someone else because they can’t get through to me!