Some new (to me and hopefully not you) ADR blogs…

Reading through the names of the bloggers called out in Vickie’s post on licensure, I found a few blogs I had visited before, but had been remiss in adding to my blogroll. So, without ado, here they are:

Schau’s Mediation Insights. – Jan Frankel Schau had taken a few months sabbatical, but is back.

Stephanie West Allen- Idealawg – Stephanie may be my only ally on the licensing issue!

CResearch - A blog for sharing conflict resolution-related research, news, and commentary.

Colin Rule’s Blog – For those of you seeking some light reading on IP, game theory, and law, among other subjects.

Response to Vickie Pynchon’s Post Re: Licensing.

Over on the estimable Settle It Now blog, Vickie Pynchon solicited comments from the ADR blogosphere regarding development of licensing standards for mediators.

I tend to hold classically “liberal” free market ideals (see, e.g., Milton Friedman), so I generally chafe at the idea of granting any governmental “agency” the authority to dole out licenses. Even so, I recognize the benefit of having medical and dental licenses, or having the Bar exam or CPA exam. After some thought on the subject, however, I cannot see how a mediation licensure program would protect consumers or would prevent the abuse illustrated in Vickie’s original post.

First and foremost, all a certification/licensure program ensures is that the neutral has met a bare minimum standard, nothing more. Having certification does not guarantee quality of service. What’s the old saw? What do you call the person who graduated last in his class at med school? Doctor. Sophisticated consumers know to independently vet providers of professional services. Unsophisticated consumers do not. Licensure will not change this.

Not even a rigorous testing procedure, such as the 2-3 day bar exam or week long “boards” that doctors complete, can eliminate the problem of unscrupulous individuals taking advantage of the ill-informed. I’ve seen cases where lawyers miss simple deadlines, costing clients millions. I’ve seen cases where doctors kill patients because of sheer incompetence. Licensure did not and could not prevent these problems.

Second, there is a fundamental lack of understanding about ADR and ADR neutrals among the general populace. Would the general population even know to check to see if the ADR neutral was certified or registered with the state? I cannot believe the number of educated persons to whom I must explain in excruciating detail what it is I do. I can’t imagine that the “average Joe and Jane” knows and appreciates it either. So, even with licensing guidelines and requirements, would they know to ask? Highly doubtful.

Finally, I doubt there would ever be a single standard. Like it or not, ADR is tied to the legal system and as long as there are 50 State Bar associations governing licensure for attorneys, there will be 50 organizations seeking to control licensure of mediators and neutrals. While Georgia allows non-lawyers that meet other qualifications to act as neutrals, the Office of Dispute Resolution is “appointed by the Georgia Supreme Court.” It will be the same in other states.

I’m certain that this will not be a popular opinion among some of you, but I am a rational person and I am willing to listen to any rational argument in favor of licensing. I am certified. I trained the requisite number of hours, observed the requisite number of mediations and completed the application and ethics review process. Do I feel better off having done so? Yes, because I put my full focus and effort into it. Do I think the process would discourage or prevent an unscrupulous person who believed he could con people out of money doing it? Absolutely not.

Do we need an APB for Geoff Sharp…?

Do we need to file a missing persons report on Geoff Sharp? I know that it is summer time down there, but did any of you think his end of the year break would be a month long?

Mom of the Year

Well, all you June Cleavers out there, you can quit trying. The 2008 Mom of the Year race is over already.

I’m sure that Jane Hambleton of Des Moines, Iowa thought she was being a great parent when she bought her 19 year old son a 1999 Oldsmobile. She laid down only two rules: No booze and always lock the doors.

So when she snooped under the front seat and found a bottle of moonshine, she did the logical thing. She took out a classified ad to sell the car:

OLDS 1999 Intrigue. Totally uncool parents who obviously don’t love teenage son, selling his car. Only driven for three weeks before snoopy mom who needs to get a life found booze under front seat. $3,700/offer. Call meanest mom on the planet.

She has received dozens of calls, some of which were actually interested in buying the car. The majority, however, wanted to pat her on the back for being a stern disciplinarian and not caving in when her son tried to argue his way out of it with the ever popular, “That wasn’t mine. A friend must have left it.” Suuuuure.

I hope certain celebu-moms are paying attention. You know who you are.  Your names rhyme with Gohan and Stears.

Legal Antics

If you want some good legal humor (or humouuuur for Geoff), head over to Legal Antics.

Some people just don’t understand….

When I began my study of mediation and negotiation in earnest last year, I read that Americans (in particular) get bored or frustrated with negotiations that proceed past offer and counter-offer. In a wired-in, on-demand, point-click-shop culture, the idea of bargaining simply turns people off. As a result, people simply just don’t understand how to negotiate. Wednesday’s small claims mediation was a case in point.

It was a small matter, a dispute over an advance paid to a vendor to provide certain services. After the vendor completed a small percentage of the work, a dispute arose between the parties and the vendor ceased work. The plaintiff felt that he was entitled to his advance back. The vendor felt he was entitled to be paid of his time and effort to date.

The plaintiff admitted early in the mediation that the defendant had performed some of the work and was entitled to some compensation for that work. Optimistic, I asked to caucus with the defendant and learned that he had made an offer to settle about a month earlier. After discussing that offer for a while, he told me to make an offer that was 25% less than the pre-mediation offer.

Having a party make a lower offer than a pre-mediation settlement attempt is not a typical occurrence but it is not terribly unusual either. I assumed that the initial offer was closer to his final position and he wanted some room to move. Fine. I can work with that.

The plaintiff seemed pleased with the offer and made a decent counter offer, knocking about 40% off the initial demand. I thought that we were on to something. We were moving.

Then, I took the new demand into the defendant’s room and all logic and reason vanished.

For some reason, he decided he now wanted to offer less than any of his previous offers – half his pre-mediation offer. Yes. You read that right. Half.

It reminded me of the negotiation I once had with my father about a curfew. Every time I objected or counter-offered, he made the curfew a half-hour earlier.

Needless to say, neither negotiation ended well.

As an aside, I am beginning to think the ADR coordinator at this particular courthouse dislikes me. The last time I was there, she gave me a case involving twin siblings who would barely speak to each other. That ended in impasse as well.

Late filing costs BigLaw client BigBucks.

It’s the type of problem that keeps litigators up and night and gives them ulcers: missing a deadline. Typically, you worry whether you calculated the number of days correctly or remembered to add or omit weekends. But I doubt most litigators would ever fear being one minute late, even in their wildest nightmares.

The story actually starts on a high note. Toshiba, the big client, had just obtained a judgment and was given 14 days – until Oct. 10 – to file a motion for attorney’s fees. The rest of the story is best explained by the Judge’s order:

Here, [Toshiba’s] purported reason for its delay is that its courier was caught in traffic at 3:30 in the afternoon in Santa Ana, California. Mr. Mersel, attorney for [Toshiba], asserts that he waited until 3:14 p.m. on the last day of the filing period to deliver the motion to Morrison & Foerster’s regular courier service. Mr. Mersel asserts that although he was aware that the filing deadline was 4:00 p.m., he had “never had a problem with getting papers filed by 4:00 p.m. when delivering them to the attorney service” forty-five minutes in advance. The courier, Mr. Moskus, swiftly responded to Mr. Mersel’s request, leaving on his motorcycle for the courthouse at approximately 3:30 p.m. Unfortunately, Mr. Moskus encountered “unusually heavy traffic” and had to “wait at the railroad crossing on Grand Avenue for a long train to pass.” Consequently, Mr. Moskus arrived at the Courthouse after the office had closed and Mr. Mersel was unable to file the motion until the following day, on October 11, 2007.

These circumstances, however regrettable, do not meet the standard for “excusable neglect.” Although the delay was not lengthy and it does not appear that [defendant] was prejudiced by it, the reason for the delay was entirely within [Toshiba’s] control and [Toshiba] has not offered a good faith reason for the delay.

Concluded the judge: “[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time.”

Early in my career I learned to add a fudge factor to deadlines. I even took to the habit of telling certain partners with a penchant for procrastination that the filing deadline was one day before the actual deadline. Its a habit that most young lawyers should adopt. You’ll thank yourself on that morning when that partner walks in with a brief that has so much red ink you thought Jackson Pollack edited it.

Maybe you should have mentioned that earlier?

We were deep into the mediation. The parties had passed the exposition phase and had entered the exploration phase. I felt I had just made a breakthrough by getting the defendant to admit that, yes, maybe he did owe something to the plaintiff, and that yes, maybe it would be best to make some offer to settle the matter.

“I’m willing to offer $60,000,” he said to me somewhat sheepishly, “but I won’t go past $70,000.”*

“Now we’re getting somewhere. Let me bring that to the other side,” I said. In the other room, I tell them I’ve got some good news. “The defendant has moved from his previous position that he had no liability to you whatsoever and is now offering $60,000.” There are some rumblings and grumblings, but otherwise the offer was greeted favorably.

More after the jump.

A Fresh Approach to New Year’s Resolutions.

Something recently dawned on me while listening to one of those ubiquitous New Year’s resolution discussions between some folks on the radio. If the news stories are correct and anywhere between 75% and 98% of all New Year’s Resolutions will fail, we all need a fresh approach. And I have it. The Reverse Resolution.

If you are going to fail miserably at keeping your resolution, then resolve to do more of the behavior you want to change about yourself.

Smoke? Resolve to smoke 4 packs a day.
Poor Diet? Resolve to eat a pizza for breakfast and McDonald’s for dinner and keep nary a green vegetable in the fridge.
Couch Potato? Resolve to sit your lard ass on the couch for a minimum of 5 hours a night.
Drinker? Resolve to have a three martini lunch every day.
Grumpy? Resolve to insult/infuriate more people daily.

At worst, you will eventually grow tired of trying to keep your Reverse Resolutions within a week or ten days. You’ll go back to being the person you are. No harm, no foul.

But just maybe, by committing yourself to exaggerating the wicked behavior you wish to change about yourself, you will repulse yourself and find that you really should make that fundamental change in behavior. And as anyone who has undertaken a home remodeling project knows, you need to demolish the old structure and sweep out the sawdust and bent nails before you can rebuild.

So, with that said, I’m off to crack open a beer and sit on the couch with a bag of donuts.

Happy New Year.