The Importance of Choosing a Professional Mediator

During my Monday sessions at a local Magistrates (read:Small Claims) Court, I must often stop the proceedings to explain to the pro se litigants that I am not a judge.  This despite the fact that this is set forth in the guidelines each party must read and sign, and the fact that I say this very explicitly in my opening.  I take this with a grain of salt as most people are unfamiliar with the legal process, save for what they see on various legal themed TV shows.

I would never expect to have this issue with attorneys. But, that was the experience of mediator Jeff Kichavin. In his wonderful commentary Professional Mediator: A Distinction that Makes A Difference, Jeff relates an experience at an ABA function where a high level in-house counsel was asked what qualities he looked for in a mediator repeatedly stated that he looked for a “judge that” has this quality or that skill.

In response to this apparent misconception that former judges uniformly make excellent mediators, Jeff explains “the benefits of using true professional mediators as opposed to people who merely used to work as judges.”  (N.B. I think that former judges can make excellent mediators, if properly re-trained to think and act like one, not like a jurist.)

Jeff makes the point that

To your typical former judge, the ability to “value” the case is the alpha and the omega of his service. Dialogue between the parties is a charade. The Los Angeles Daily Journal’s April 17, 2006, profile of a distinguished former state court judge presents the standard approach: “I try to get all the movement I can before I jump in and say how much I feel the case is worth.”

This man was an excellent judge. But his approach is not exactly the apotheosis of mediation technique. That’s because the lawyers already know everything that these judges can tell them.

Now, I know what some of you are thinking.  I hear it all the time: “I don’t want an errand boy/girl.  I want someone who can help get the case settled.”  A good mediator, a skilled mediator, does just that.  As Jeff states,

Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

A former judge, who acts and thinks like a judge, doesn’t help the parties make an informed decision, he tells them what he thinks that decision should be.   Speaking from experience, a client who takes a settlement based primarily on the valuation of the case by a third party will not be a happy client.  But a client who works through the issues, processes the information, assesses risks and benefits and comes to their own conclusion, will be.

Again, judges can be good mediators,  but you shouldn’t let that be the primary consideration the next time you choose a mediator.

A hat tip to Diane Levin.

Maybe They Should Make ADR Mandatory at Michigan Law?

From Above the Law, everyone’s favorite gossipy tabloig, comes a cautionary tale of how not to handle a business dispute with your law school classmate:  Don’t send a passive aggressive “Uhm, it’s been six months where’s my cash” email to everyone on the Law School’s listserv.

The email from the seller is bad enough, but the response it provoked was worse.  The scary part is these students will graduate from one of the most respected law schools in the nation, not some US News and World Report Tier 4 school.  They may or may not get jobs in BigLaw.  Maybe they should make ADR (or anger management?) mandatory at UM Law?

The Story of A Sign

The Story of a Sign

This short film won an award at Cannes this year.  Take a moment to watch and then reflect on the simple power of language.

With a stroke of the pen, a stranger transforms the afternoon for another man in this emotionally stirring short film by Alonso Alvarez.

If they’d only hired a mediator….

Courtesy of Legal Antics:

Completely OT – I’m lost watching LOST.

A good friend finally browbeat us into watching the TV phenomenon Lost by providing us with Season 1 on DVD.  Since it’s the summer, and there is precious little to watch (yes, my wife, who works in TV, and I watch too much TV, but I get tired of reading, writing and mediating all day), we finally put it in the DVD player on Sunday, expecting to stay up all night watching the entire first season like other people we’ve spoken to.

I have to say, I’m completely underwhelmed.

The story is dragging on.  Most of the characters are unconvincing and unsympathetic.   And what’s with all the damned staring?  That’s all anyone seems to do – stare into the distance, stare at each other, stare at objects.

Can someone clue me in on how this became a phenomenon?  Frankly, if I stopped watching today (and we’ve watched maybe 5 episodes), I could not care less.  I’m giving it the college try, though, because I like and respect my friend and I want to “fit in” with the other Lost zombies.

Anyone care to help?

Ready for the Wonderful World of Domestic Mediation (I think).

It’s official.  I am now “registered” with the Georgia Office of Dispute Resolution as a Domestic Relations Mediator. I can now begin applying for inclusion on the various court rosters as a domestic mediator.

“Winning at Mediation” – Nancy Hudgins’ Excellent Resource for Advocates

Fellow blogger and mediator Nancy Hudgins has compiled her excellent blog series on preparing for mediation into a fantastic monograph called “Winning” at Mediation: A Blueprint for Success.   It’s a well organized primer for any attorney (or the lay person mediating pro se).

Inside she includes excellent advice, such as her pre-mediation checklist and my favorite chapter – Show, Don’t Tell.  Visual aids are underutilized in trial situations and mediations.   Nothing has more impact on someone you are trying to persuade than a blown up picture of the accident scene, an example of the sheet metal that the million dollar machine you just bought is improperly fabricating, or a pile of junk food that a diabetic suing for medical malpractice had ordered while, uhm, a guest of the state.

Settlement is Not Always the Desired Outcome

Over at Mediation Stuff, experienced litigator-cum-mediator John Lassey writes, The Goal of Mediation Is Not (Necessarily) Settlement.  He suggests that many would find this statement heretical.  I don’t. I could not agree more.

When I took my first mediation class, I heard someone suggest that the lawyer/mediators needed to learn how to stop being advocates for a client and become an advocate for “the deal.”  Eager to embrace my new profession, I initially thought that was interesting and profound.  But the more I mediate, the more I realize that this is bunk.

Like John says,

the primary goal of mediation of a tort case is knowledge, with settlement being a possible byproduct. The idea is to learn whether all sides are close in their thinking on the value of the case. If they are, settlement is likely to follow; if they are not — and cannot be convinced to change — settlement is not likely to follow.

Like John, I tend to go through an initial phase of analyzing whether the parties are in the same range, ballpark, zip code, bracket.   If the parties seem to be dealing in the here and now, rather than in Bizzaro world, the mediation generally proceeds.  While I use “all my powers, and all my skills” to help the parties work out a settlement when the parties are close (or at least receptive to settlement), I’ve learned to back off when the parties aren’t.  I still work hard to get the parties to exchange relevant information, to “reality test” their assumptions, to try to find some common ground to work from, but at a certain point, if the parties are thousands of dollars apart, or unwilling to move from their opinion on ultimate liability, settlement is simply not an option.  Then it seems like I’m beating a dead horse, or milking the parties for another hour of fee, and neither is right.

ADR – a major motion picture from Martin Scorcese.

Courtesy of Legal Antics:

Apparently, these kids at George Washington don’t have a Torts final or Law Review Note to write.

Construction Litigation Cases Are Starting to Clog the Docket.

Is this the harbinger of more hard times to come or might it be a good sign for the economy?

I’ve been seeing a fair bit of construction and real estate related cases lately. I think it is safe to say that litigation in real estate and construction cases increases as the economy worsens. Buyers dry up, so homeowners sue to recover or retain earnest money on deals that collapse. As new homes sit empty, general contractors and builders begin to hemorrhage money. They often find it easier (or more prudent) to pay a bank than their subcontractors and vendors. This begets litigation.

And some of the litigation is quite difficult. The cases involving contractors and subcontractors are generally easy to deal with. Most have been through it before. The hard cases are the ones with the patently naive, foolish and some might say, stupid people who were seduced by the lure of easy money portrayed in ridiculous shows like “Flip This House” and countless AM radio advertisements.

Most of these people are completely out of their depth – intellectually, financially. They lack the experience, brains, skill and most importantly, finances to build Lincoln Logs, much less build and sell homes. Now they face foreclosure, eviction, bankruptcy – and litigation. Their cases end up in mediation and I sometimes find it hard not to tell these people that reaped what they sowed.

I recently had a party, who claimed to have a real estate license, act completely shocked to find out that signing a contract for a “flip house” on behalf of a “friend” who could not qualify for financing (but could somehow come up with a huge earnest money check) was committing fraud. She had never heard the term “straw man.”

I am left to wonder, however, whether the increase in litigation is a positive sign for the overall economy. As anyone who has studied economics understands, the construction and real estate markets operate in a cyclical fashion. As the economy improves or even begins a fast growing phase, construction increases as the newly wealthy (both businesses and individuals), desire newer, larger, more well appointed homes and offices. Growth continues until the economy worsens and then drops off precipitously. Litigation follows soon thereafter, until the cycle begins again, typically a few months behind the general economy.

Since litigation also has a life cycle of its own, often taking months or years to complete, are these cases actually a sign of a recovering economy? All I know is that I am gaining a lot of experience in real estate transactions and construction.

Maybe I’ll go out later to find some houses to “flip.” Maybe then I can retire early….