Please leave a message after the tone….or should you?

In the middle of leaving a message for a pro se defendant in one of my court-referred cases (moments ago, I might add), I was faced with a dilemma.   As the voice on the other end of the line simply stated, “Please leave a message after the tone,” it dawned on me that leaving a detailed message might in some way violate the confidentiality of the mediation process.  There was no name announcement.  There was no indication whether this was a home phone or cell phone or work phone.

Far too many of the cases I’ve been assigned recently are collections matters.  These pro se parties are already on the defensive from frequent phone calls from collections people.  Even though the court sends out an official notice scheduling the mediation, they are likely unfamiliar with mediation and may equate me with yet another attempt to obtain information or a concession from them.    If I leave too vague a message, they may never call back to confirm the session and discuss the case with me.  But there are ramifications for leaving too detailed a message.

What if a spouse/child/live-in lover is sheepishly withholding the fact that they have been sued from their spouse/parent/live-in lover?  What if this is a work phone and messages are retrieved by multiple people?  I could not be certain.

I’m not sure there is one clear answer on this.  In the end, I made the split second judgment that the lawsuit itself is a matter of public record and is not confidential.  I announced myself as a mediator and asked that they return my call.  I avoided mentioning the words “court” “lawsuit” or “defendant” and hoped that my unique name might trigger a memory of receiving the Notice of Mediation.

Prof. Murray Responds to Vickie Pynchon (Sort of).

Over at Settle It Now, Professor Murray has obfuscated the issue responded to Vickie’s thoughtful commentary on his polemic, Privitization of Justice.

I’ll try to be frank without sounding like I’m making an ad hominem attack on the Professor.

Prof. Murray’s vague comment simply confirmed the belief that I had of him and his piece in the first place – his problem with mediation is not one of justice or due process (substantive or procedural).   It is ideological.   Murray’s comment that having mediation

provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution,

sounds like the beliefs of a old fashioned, 1960’s liberal who hasn’t met a problem the government can’t solve for us.  Or more accurately, he hasn’t met a problem that private enterprise can fix.  (As an aside, what happened to “Ask not what your country can do for you . . .“?)

It does not sound like he wants to reform the process.  Instead, he sounds like he wants to put it back into the hands of the people that drove litigants to seek alternative dispute resolution in the first place – the judicial system.

Why?

I can’t answer that question.

The point that I think Prof. Murray misses is that judicial review is wholly appropriate when a judge or a jury wrongly decides an issue of fact or law that affects the liberty or property rights of another; but it is not appropriate when parties freely enter into a negotiated agreement.

People should be free to make “bad” decisions.

What might seem “bad” to you is “fair” to me.  Who better to make that call -  the party herself or some government apparatchik?

Would he also suggest that non-facilitated settlement agreements be reviewed by the courts as well?  Pro se parties or parties represented by ineffective counsel may agree to enter into really “bad” agreements.  Who is providing “judicial oversight” of those agreements?

As for the “kind of insidious corruption that undermines the integrity of private dispute resolution”, i.e., mediators who might influence decisions in the hope of obtaining future business, mediators don’t “make” deals.  Sure, some mediators exert more “pressure” than others.  In the end, if the market learns that Jane or John Mediator exerts more “pressure” on plaintiffs than he or she does on defendants (or vice-versa), that will sort itself out.

My $0.02 on the “corruption” of the civil justice system by mediators.

In his most recent post, Geoff Sharp calls for further comment on Prof. Peter Murray’s polemic, The Privatization of Civil Justice, published in the summer edition of the American Judicature Society’s Judicature magazine.  I have not yet had the opportunity to read the entire article, but Geoff quotes liberally here, and Vickie Pynchon discusses it at length here and here.

Based on these excerpts, it appears that Murray claims that private dispute resolution mechanisms such as arbitration and mediation erode the civil justice system because arbitrator and mediators handle cases in a self-serving manner without the benefit (?) of any oversight.

I had written a lengthy piece excoriating Professor Murray’s article (and to an extent, Professor Murray), which I now realize is quite unfair, since I have only read the excerpts published (well within the bounds of Fair Use) by Geoff.  So, I will throw my support behind Vickie, whose thoughtful commentary my own comments echoed.  I will simply say that I am deeply offended by his characterization of mediators as money-grubbing whores who would prostitute their beliefs solely to generate repeat business.

I’ll add to John DeGroote’s surely swelling head….

I am constantly amazed how small a place the ADR community is.  At least the part I have on RSS feed.  So, when both Nancy Hudgins and Diane Levin wrote in high praise of John DeGroote’s new blog, Settlement Perspectives, I had to swing by and check it out.

John has already posted several extremely entertaining and informative posts on negotiation, touching on such ideas as managing expectations and the power to walk away.  This promises to be an excellent resource for a broad audience, from young BigLaw associates to inside counsel to mediators.

It also reminds me that I should be a little more serious now and again and provide real value to my readers.

UPDATE:  Vickie piles on the bandwagon.

Prepare for mediation as if it were trial.

As Geoff Sharp put it, New Jersey lawyer Donald Vanarelli “gets it.”  He understands that

since the great majority of cases are resolved before trial during mediation or in settlement negotiations while fewer and fewer cases are tried, attorneys should prepare for mediation with the same seriousness and discipline they display in preparing for trial.

I see the results of unprepared advocates far too often.  They mumble, babble, ramble and stutter through an opening statement that presents a weak case to the other side. They are “shocked” to learn facts of which they weren’t aware (typically because they hadn’t yet learned the file).  They spend precious time on “damage control” with their client because the client wasn’t prepared to put money on the table or accept less than the brass ring the attorney told them they were entitled to.

Mr. Vanarelli condenses some great advice from many sources into an effective checklist that any advocate preparing for mediation should read.

Oh, and don’t forget Nancy Hudgins’ fantastic resource, either.

Remember.

On this 7th Anniversary of the tragedy of September 11th, I offer only a short post.

Remember.

-Thomas E. Franklin / The Record – (Bergen County NJ)

Fr. Mychal Judge, O.F.M. – we miss you.

Just when you thought it safe to read my blog again….

Ex-Judge Roy Pearson returns!!!

It seems a District of Columbia Appellate Court has agreed to hear an appeal of this stupendously ridiculous case.   I’m not sure who’s more ridiculous – Pearson or these three judges.  Let’s only hope they granted appeal to slap Pearson with further sanctions for abuse of the legal process.

Couldn’t have said it better myself.

From the Long Beach Post (via Marvin Schuldiner’s Sanns Mediation blog) comes the following comment on mediation:

During my tenure as a lawyer, I found the mediation process to be more effective and rewarding than the litigation process. It gave the litigating parties a sense that they were “having their day in court” without the drawbacks of actually being in court.

This is one of the main reasons I became a mediator. Mediation provides the parties the only real chance to fully and meaningfully participate in the litigation process.

Why bother with mediation when you have the Internets?

Tomorrow, I start scouring the want ads in our local legal daily newspaper because a new website has rendered my mediation skills obsolete.   SideTaker.com is certain to revolutionize dispute resolution in the age of Web 2.0 and the Internets.

Fighting with your significant other? Who’s right and who’s wrong? Air it out anonymously while letting people of the world give you advice and make the decision on who should apologize.

I mean, isn’t dispute resolution all about proving you’re right and they’re an idiot?  And who better than to determine who “should apologize” than random strangers with nothing better to do than eat Cheetos in their underwear and surf the web?  I’m sure they’re even running the website through Google’s useful Klingon translator. Because we know how pesky it is to have read things in English.

And listen to this great advice:

Your girl is a skank. Move on and put this trailer trash skeezer out of your mind.

Stay with each other and never have kids. Remove yourselves from the gene pool.

[That woman] is crazy. Run for the hills, dude.

I can’t compete.  Wish me luck, because the legal job market is terrible.  I wonder if Starbucks is hiring?

Hat tip to Above the Law and Legal Blog Watch (where I saw it first), but also a nod to my friend Diane Levin, who scooped me 3 days ago.

To keep or not to keep….

A few weeks back, I had an interesting chat with a colleague about record keeping. I was observing a mediation for my domestic requirement and noticed that the mediator archived the notes from the session. I, on the other hand, destroyed my notes. When asked about it, the mediator responded that he kept the notes in case the parties had questions about the settlement. In many cases (especially where the parties are represented on both sides), the full agreement is drafted later and the parties may have questions about the settlement.

This is the exact reason that Malaysian Mediator Chan Kheng Hoe says he destroys his notes. I tend to agree with Mr. Chan Kheng Hoe. Maintaining files of notes from your mediations can open a Pandora’s box. As he puts it,

keeping notes can always come with the risk of the notes being subpoenaed. It would be absolutely unlawful for me to dispose of notes once they are subpoenaed, regardless whether I think the subpoena to be proper or otherwise.

Furthermore, don’t you run the risk of becoming the arbiter of the agreement (or the dispute itself) if the parties believe that you hold the Rosetta Stone?