Difficulty Dealing With the Dichotomy.

This week, I had a lot of difficulty dealing with the dichotomy between Mediator and Lawyer. I spent 14 of the last 15 years studying or practicing law and thinking (and acting) like a lawyer. It is a difficult habit to break.

Of the 6 court-referred cases I handled this week, 4 were collections matters – an increasing number of cases on our local dockets. None settled. One case has a reasonable chance of being dismissed in the debtor’s favor — the name on the account was the same, but there were different addresses and Social Security numbers. It looked like ID theft and the plaintiff agreed to investigate further. Another came close, but the plaintiff’s representative didn’t have the authority to accept the last offer and needed to consult with someone. That will likely settle without me.

The others, however, seemed “open and shut” — in favor of the plaintiff/creditor/collection agency. The defendants were the persons listed on the accounts. They didn’t dispute the charges. They readily admitted that they stopped paying on the account (for whatever reason). They had no legal defenses. Someone, somewhere, however, had convinced them that they could get the cases dismissed on technical legal grounds. And that was where my difficulty began.

When cases involving pro se parties hinge on legal technicalities, they become nearly impossible to settle. The parties lock in on their position and the only way they budge is if I could tell them that their legal technicalities are bogus urban legends and 999,999 times out of a million, the Court is going slap them with a judgment. Of course, I am bound by the court rules from conducting evaluative mediation, so such a pronouncement would probably result with me in some hot water.

I fully understand the principles behind facilitative mediation. I understand that we should try to get the parties to think beyond the conflict. Think about collective interests. Win-Win. Increase the pie. That is all pure BS when it comes to these types of cases.

I tried “reality checking”. I tried playing Devil’s Advocate. I asked point blank what chance they thought they had for success. I asked whether they knew anyone who had successfully asserted these defenses in court. I talked about their best and worst case scenarios (I really dislike BATNA AND WATNA because lay people and most lawyers look at you like you have 3 heads when you use those terms).

In return, I got mainly blank stares or repeated assertions that “I know I’m right and I don’t have to pay these people.” One defendant actually told me he wouldn’t talk about a settlement unless someone, “some lawyer or judge or someone” told him he was wrong. He was wrong, but I knew I couldn’t be the “lawyer or judge or someone” who told him that. Directly, at least.

In the end, their stubbornness won out.

You Think That Jury Will Do Right by You? Think Again.

In the case the upcoming article in the Journal of Empirical Legal Studies did not convince you that you are usually better off negotiating a resolution of your dispute (whether with the help of a mediator or not), legal blog Swordplay lists 10 Acts of Lunacy by Jurors that might make you think twice about turning your case over to those twelve people in the box.

I will admit that as a bit of an idealist (and someone who never “lost”* a trial), I thought that once they took the oath juries tended to pay attention and in the end, did the right thing, but some of these examples take the cake.

*A bit of clarification may be necessary here.  I was clearly not Gerry Spence or Perry Mason.  When I was practicing, and defending insured persons (mainly motorists) from personal injury claims, a trail was commonly considered a “win” if the jury awarded the plaintiff damages that were less than the last amount you offered to settle.  Using this measure, I never truly lost a case, even though juries ruled against my client.

What’s in a Name?

Fellow Mediator-blogger-teacher Dina Lynch Eisenberg does an interesting job examining exactly what makes a good name for your mediation business.  Dina’s own practice started with a deeply personal (but in my opinion, not terribly descriptive) name and transformed to a more descriptive but more institutional sounding name.

Personally, I chose a fairly conservative name because I market my practice to lawyers, who are, by and by, a conservative bunch.  The ones I surveyed preferred the name CKA Mediation (CKA being, of course, my initials) to anything more “fanciful” (like some of the examples in Dina’s post) and they preferred the very professional, but more conservative logo seen on my webpage. You go with your market.

Study Shows That Settlements Result in Better Outcomes for Both Parties

A few weeks ago, I noted in passing that I had mediated several cases in a row in which the plaintiff walked away from reasonable settlement offers, only to have the court find in favor of the defendant.  It turns out that this is actually a common occurrence.  The New York Times reports that a study to be published in the Journal of Empirical Legal Studies finds that “most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.”

The basic premise of the article seems elementary to me.   Everyone is convinced they (or their position) are unique and that others will see their position exactly as they see it. As the article notes,

“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently.

And it is not limited to clients – there are apparently naive, self-deluded lawyers “dismissive of the study, noting that the statistics mean nothing when contemplating a particular case, with its specific facts and legal issues, before a specific judge.”  So, the fact that people pass up perfectly reasonable settlement options didn’t seem like earth shattering news.

The two things that really made my eyebrow arch were  1) the percentage of plaintiffs who pass up settlement and “lose”, i.e., are awarded less money than they were offered.  [And yes, as a former defense counsel for various insurers, be certain that even though the defendant is still writing a check, they consider this a "win"]; and 2) the discrepancy between what happened when a plaintiff passed on a settlement and what happened when the defendant passed on it.

According to the article:

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

That means that nearly two-thirds of all plaintiffs are offered more than they are awarded at trial.   That seems staggering.  Until you factor in the other half of the argument – the amount of that “error.”

The article states:

On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.

This seems ridiculously out of proportion to me.  I would like to see more of the data or have these numbers expressed as percentages in order to determine whether which is more significant.  Which error hurt which side more?  Did the plaintiff receive $57,000 when they were offered $100,000?  Did the defendant get popped for $10 million claim when the plaintiff would have taken $9 million?  Hard to say.

Even so, it seems that while defendants are wrong only 24% of the time, their “mistakes” are far more costly.

The answer?  Well, I’m not sure there is a one-size-fits-all approach.  Like Vickie Pynchon suggests, you can’t very well tell people to take the last offer on the table.  This is, however, where a qualified, skilled, professional mediator can help the parties make pragmatic, informed decisions to resolve the issues before them.

Differing Types of Logic May Affect Negotiation

Stephanie West Allen has an interesting post over on Idealawg about how differing problem solving styles may affect communication, goal setting and mediation.  Stephanie then asked several of us whether mediation is causal or effectual.  I was quite amazed to learn that there were different types of logic – causal and effectual.  I was even more amazed to learn that there are mediation participants who actually think logically.

Stephanie quotes a passage from From “New Book Reveals Entrepreneurial Thought Process” (Research News – University of Virginia) that best explains the difference between the two:

A cook using causal logic would start with a menu or a specific recipe while a cook using effectual logic would look in the cupboards to see what ingredients might be available to create an entirely new dish.

Put that way, the vast majority of mediations I handle are causal.  They are the so-called “single issue” case where the only issue is money.  The parties want to settle at a sum that both can live with and we haggle back and forth until that number is reached.

Yes, I know that some of you believe that money is never the only issue, but I respectfully disagree.  Sure, people want to vent, but in the end, they also want a check.  I have yet to see a mediation where the aggrieved party was willing to walk away once they told off the other side.  So, the process is very familiar and very formulaic – not unlike a recipe.

Someday I hope to get to a place in my career where the cases are complex, have many moving parts and allow me to flex my effectual logic muscles.  But right now, I find my mediations are very causal.

WhoCanISue.com – a sign of the Apocalypse?

Albert Einstein is said to have remarked, “It has become appallingly obvious that our technology has exceeded our humanity.”  I cannot find a source indicating to what he was referring (it was likely the atomic bomb), but it could just as easily been about WhoCanISue.com.

Time Magazine reports that this “innovation” is the brain child of Curtis A. Wolfe, formerly general counsel for Fort Lauderdale-based private equity firm Ener1 Group.  Apparently Mr. Wolfe thinks that traditional ways of finding a personal injury lawyer — the back of the yellow pages, daytime TV commercials, the sides of city buses — are insufficient.  He must also distrust state or local bar associations, most of which have referral services stocked with names of competent, qualified counsel.

Wolfe claims that his service is free to the consumer and offers “real-time access to attorneys.”  As opposed to, say, a phone call to a local law firm.  I have never met a reputable lawyer who charges for an initial consultation.

Why is access to the courthouse a bad thing, you may ask?  As prominent Miami trial attorney Richard Sharpstein “scoffs” in the Time article,

Our country’s courts are clogged with unnecessary and frivolous lawsuits which delay, if not obstruct, the access to courts of people that really need to get there, that have serious legal grievances.

Even a law professor sitting in her ivory tower at Uinversity of Florida law school agrees that this website “is likely to increase the number of lawsuits.”

Parties with legitimate grievances should have access to the courthouses.  I wonder, however, whether there are so many legitimate cases languishing because the plaintiff could not find counsel.  Is this really a service needed?   Unlikely.

See also, Overlawyered.

Dyslexic UK MEDICAL student claims multiple answer test unfair.

From Overlawyered.

You know what I think is unfair (at least to you and me)?  DYSLEXIC DOCTORS!  It is bad enough when apparently normal doctors confuse a prescribed 10cc dose of Heparin with a 10,000cc dose.  I’m sorry, but for some reason this one steams me.  This woman may have a 200 IQ for all we know, but I sure as hell don’t want her as my doctor when I come into the ER with massive trauma and the intake chart looks like the eye chart to her.  And the UK medical boards aren’t preventing her from becoming a doctor, they simply aren’t giving her an advantage over the other students who have to take the multiple answer exam.

The Audacity of Desperation?

It started out like a normal, court referred medation.  A tenant on a month-to-month lease moved out of the property without proper notice, and owing at least one month’s back rent.  The landlord claimed it was two months, plus the month the law allowed her to claim for the tenant’s failure to provide proper notice.

During mediation, I learned that the tenants moved out because they heard, second hand, no less, that the landlord might put the house up for sale.   Since there is no use crying over spilt milk (they were out of the house several months and tied to a new lease), I did not press the tenants on why they didn’t call the landlord to see what her timetable was and find out how much notice they would have before closing occurred.  For whatever reason, they felt packing up and moving out was the best way to protect themselves. Long story short, we worked out an arrangement to settle the outstanding debt and security deposit issues.

On the way out, the landlord actually asked me, “Do you want to buy a nice house in Suburbia?”

Vickie Pynchon’s Virgin Blawg Review Post

If you’ve got about 14 hours to kill, scoot on over to the IP ADR Blog to read Vickie Pynchon’s “Virgin Themed” Blawg Review.  If you decide to click on every hyperlink, you might need some of this.   Since I am a busy busy man, I decided to read the much shorter 6-hour version on her other blog, Settle It Now.  Enjoy.

Why Nobody REALLY Reads Law Review Notes.

About a month ago, Prof. Moffitt of ADR Prof Blog suggested that I read Erica Fox’s Harvard Negotiation Law Review Note “Alone in the Hallway”.   After some serious Googling could not locate the article, one of his kind readers posted a link to a copy (See Comments).

It starts out as an interesting piece.  A lone law student roaming the halls of the landlord-tenant court of a major metropolitan city, privy to otherwise confidential conversations between landlords, their lawyers and the poor tenants being sued for eviction.  High brow discussions of negotiation theory and self-agency and how the process is breaking down.

Then, Ms. Fox wrote, and I quote, because I’m not sure I could make this up:

Agentic legitimacy also helps negotiators to find and use their voices in actual negotiations.

Agentic legitimacy?  I actually let out an audible “HUH?” while, coincidentally, sitting in a hallway waiting to mediate small claims cases.  She actually used this “word” three or four times.   After a long search, it appears that while this word does not appear in any recognized English dictionary, it is used in certain types of social research.  This is not a word.   It is completely fabricated.  Like incentivize or proactive. But worse.

Oh, and to make matters worse, in a parenthetical for a string citation, she wrote:

Claiming ADR preferences harmony over justice . . .

Preferences? Sure.  Its a noun.  It means something preferred over another.   But how can ADR preference something?  Nobody at the prestigious HLS caught this?  It sounds like something Mike Tyson would say.  “I preference the ludicrousity of agentic legitimation.”

Frankly, I couldn’t finish the article.  It seemed like a treatment for an episode of 48 Hours or Dateline NBC, not a scholarly article.  Skimming to the end, I saw that the author concludes:

Tenant negotiators do not exercise self-agency effectively . . . This phenomena occurs generally when disadvantaged people negotiate in formal settings.

Economically disadvantaged, and poorly educated people unfamilair with the legal process fail to assert themselves and get taken advantage of in court?  Next you’ll tell me wrestling is fake.  This is why nobody really reads law review articles.  (No offense, Prof. Moffitt)