A Halloween Joke

I’m tired of nightly news.  I’m tired of the election.  I’m tired of the constant barrage of misleading ads from all sides.  I’m tired of meaningless and vague rhetoric.  I’m simply tired.

So, I laughed pretty hard when this hit my inbox this morning:

A cabbie picks up a Nun.  She gets into the cab, and notices that the VERY handsome cab driver won’t stop staring at her.

She asks him why he is staring.  He replies: “I have a question to  ask, but I don’t want to offend you.”

She answers, ” My son, you cannot offend me.  When you’re as old as I am and have been a nun as long as I have, you get a chance to see  and hear just about everything.  I’m sure that there’s nothing you could say or ask that I would find offensive.”

“Well, I’ve always had a fantasy to have a nun kiss me.”

She responds, “Well, let’s see what we can do about that:  #1, you have to be single and #2, you must be Catholic.”

The cab driver is very excited and says, “Yes, I’m single and Catholic!”

“OK” the nun says.  “Pull into the next alley.”  The nun fulfills his fantasy with a kiss that would make a hooker blush.

But when they get back on the road, the cab driver starts crying.

“My dear child,” said the nun, “Why are you crying?”

“Forgive me but I’ve sinned.  I lied and I must confess; I’m married and I’m Jewish.”

The nun says, “That’s OK.  My name is Kevin and I’m going to a Halloween party.”

Happy Halloween.  Eat too much candy and have some fun tonight.

Mediation Tips for the Practitioner from a Savvy Plaintiff’s Attorney

Vickie Pynchon is taking a break from blogging while campaigning for one of the Presidential candidates.  In the meantime, she has asked some guest bloggers to post content.  On Tuesday, Brian Herrington, a plaintiff’s lawyer from Mississippi offered some useful tips on preparing for mediation from a practitioner’s perspective.

After a mediation fell apart on Tuesday because the ultimate decision maker did not attend and was not privy to the discussions necessary to allow him to make an informed decision, I could not agree more with Brian’s assertion, “Make sure the money person is there.” Brian states that he

will no longer attend a mediation unless the individual authorized to write the settlement check is present.   None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only.

Good stuff in Vickie’s absence.

Is blogging a cry for attention?

Among the comments on the recent story of the $300k/year Harvard Law grad who burned his diploma on YouTube, was the following:

“since he is a BLOGGER, mabye he is just looking for ATTENTION.”(emphasis supplied)

I ask you, is blogging a cry of attention?  Are we bloggers simply looking for approval in the form of comments, trackbacks and link-love?

I think not.  But I may simply be deluding myself.  Now, pardon me while I post a video of me blowing up my three-piece suit, wingtips, briefcase and blackberry with an M-80 in symbolic rejection of BigLaw life.

Just a question…

Can you maintain a litigation practice and remain a successful and dedicated mediator?

I’m just wondering.  When I started this new phase in life, I decided it was best to focus exclusively on mediation in order to best serve my clients.  I saw that the most successful mediators on the larger panels practiced mediation exclusively. Maybe I should have asked that question on my market survey (which is in progress – 12 responses on counting)

Thoughts?

What, exactly, does the mediator do? Part Deux.

A few days ago, I posted the somewhat rhetorical question, “What, exactly, does the mediator do?” It was really meant as a comment on Tammy Lenski’s post, “Mediation in the mainstream: the problem of observability.”

I realized, however, that some people might actually wonder what mediators really do. I believe that the common misperception that mediators don’t really “do” anything lies in the fact mediators do not dictate, instruct, mandate, or order the parties to do anything.

Litigants choose mediation for a variety of reasons, but most in the ADR community believe mediation works because it provides the litigants their last and best opportunity to take control of the outcome of their dispute. ADR professionals will tell you that it provides litigants with a sense of autonomy, empowerment, or control; that mediation is all about self-determination. The parties agree to a solution because they become involved in the process. They are asked their opinion. The get to provide ideas, suggestions, and alternatives. Parties need to feel that they reached the solution themselves.

So how exactly do mediators help parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, discuss settlement options, and ultimately (hopefully) reach a solution?

Good mediators ask the right questions . . . which is much harder than it sounds.

• The mediator may ask questions about the case that the parties have been ignoring;
• The mediator may explore the true causes of the dispute;
• The mediator may act as Devil’s Advocate;
• The mediator may ask the parties to make tough decisions they have been avoiding;
• The mediator may have to get the parties away from tangential issues and focus on the heart of the matter; and
• The mediator may have to control heated emotions

. . . all without making either party feel like the mediator is taking sides.

As British philosopher, mathematician and Nobel Laureate Bertrand Russell once said, “The greatest challenge to any thinker is stating the problem in a way that will allow a solution.”

The Domino’s Pizza School of Mediation

When I first started mediating, I signed up for several court-ordered lists.  Some allow me to charge my full market rate, others pay a very modest stipend.  I knew I wasn’t even going to pay for my gas with the stipend I received from one particular small claims court, but I go every week and mediate cases waiting on the calendar. My thoughts were: a) while “small,” the issues are the same as those in “larger” cases, and I could use the experience; and b) many of the parties are represented by counsel who might later refer cases to me.

Last week, however, the Chief Judge spoke with the Mediation Coordinator (who does an excellent job wrangling the mostly pro se parties and the mediators) about a perceived “issue” with the small claims mediation – they take “too long.”   So we are now under direction to “evaluate” the chances of reaching resolution within 30 minutes.  If we don’t think resolution is possible,  we are to declare an impasse and return the parties to the court.

It’s the Domino’s Pizza School of Mediation.

I will admit that a large part of this perceived problem is my fault, though the coordinator will deny that.  I work efficiently, but I am patient with the parties because it is their case.  They must come to terms with resolution.  Of the more than 50 cases I’ve handled in the last year, I can only think of one instance where the judge was ready to leave the bench and I asked for additional time because the parties were close to settlement.

I’m not certain how I feel about this new policy.  I understand that the court wants to operate efficiently and schedules cases it believes it can hear and resolve during its 3 hour sessions.  Lengthy mediations on cases arguing over $1200 do not help the parties or the courts.

But it does not feel like true mediation if I get to decide within 30 minutes whether the parties can reach a resolution.  For one, I’d be a terrible mediator if I wasn’t confident in my skills and didn’t believe I could get most cases to settle.

I’m going to have to wait and see how this works.  I suspect that once a few parties complain that a mediator either gave them the short shrift or pushed them to settle in order to satisfy this new rule, it will go the way of the dodo.   If not, I may stop taking these cases.  Like I said, the stipend they pay isn’t going to be the difference between making my mortgage payment or not.

How to Help Your Clients During Challenging Times.

As a seasoned litigator, you understand that litigation filings actually increase in trying economic times. Businesses seeking to protect the bottom line file lawsuits against non-paying customers, IP infringers, and employees who violate restrictive covenants.  Home sellers sue to enforce sales contracts.  Divorces increase because of the stress of financial difficulties.

At the same time, however, your clients (and potential litigants) are looking for ways to cut expenses.  Somewhere in the back (or maybe the front) of the client’s mind is the thought that litigation is costing them more than the case is worth.  It becomes more challenging for you to show that you are providing value.

That is why mediation should become an important aspect of any successful litigator’s practice.  Your clients will thank you when you suggest mediation because:

1.  Clients Feel Involved.

Clients are used to the attorney calling the shots.  During mediation, the clients get involved.  They tell their story.  They are asked their opinion.  They present ideas, suggestions, alternatives.  When clients mediate, they feel involved.

2.  Clients Understand Plain Talk.

While it seems familiar to us lawyers, the legal process is daunting and unfamiliar to most law people.  But mediation is plain talk, and everyone understands plain talk.  When clients mediate, they will understand the result and how they got there.

3.  Clients Save Money.

One study by the Justice Department showed that U.S. Attorneys who mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in direct costs compared to taking the matter to trial.  When clients mediate, they appreciate the fact that you actually saved them money.

4.  Clients See the Value in Your Services.

You work hard preparing a case, but most of what you do takes place in a “black box” the client never sees.  Mediation allows you the opportunity to open up the black box and demonstrate all that you actually do for the client and the value of all that hard work.  When clients mediate, they see value.

5.  Mediation works.

Finally, mediation works.  When clients mediate, you are giving them the best opportunity to reach a successful resolution.

New ADR Blog – Practical Dispute Resolution

Please visit the new ADR blog started by Barry Edwards, the General Manager of Cobb Mediation, a private ADR company on whose panel of mediators I sit.

Celebrate International Conflict Resolution Day with Blawg Review #181

The Godmother of ADR blogging Diane Levin is this week’s Blawg Review host.  As Diane explains to the uninitiated:

Hosted each week by a different blogger, Blawg Review highlights noteworthy legal blogging, sharing the pleasure of discovery of insight, news, and commentary sampled across the spectrum of legal practice.

Diane takes a spin around the world, highlighting posts on ADR, law and other miscellany from the US, France, New Zealand and Canada as well as posting a hilarious video from Monty Python’sFlying Circus. Check it out.

What, exactly, does the mediator DO?

I’ve been thinking about this issue for a while, toying with the idea of a post. I simply couldn’t think of an opening until I read Tammy Lenski’s post, “Mediation in the mainstream: the problem of observability.”

Tammy writes that while she was prepping for her mediation class at Woodbury College, she read aloud to her husband an excerpt from Daniel Bowling and David Hoffman’s Bringing Peace into the Room which delved into the perceptions of the mediator from the perspective of the participants. In a nutshell, when the parties were asked what they actually observed the mediators doing, they responded:

“Opening the room, making coffee, and getting everyone introduced.”

Unfortunately, I think this is a common perception among mediation participants – that the mediator is passive. I haven’t done any research studies but I think there are three possible explanations for this opinion:

First, many lay people are simply not familiar with mediation. They hear the words “neutral” and “facilitate”, and are told that a mediator doesn’t decide a case in favor of one party or another. They ask, “Then what, exactly, does the mediator do?”

Second, there really are some useless mediators out there. They do little else than greet the parties, offer coffee and walk around going, “They’re at $X. Are you willing to make a counter offer? You know, litigation is risky. You might lose, and spend a lot of money getting there.” Since I frequently hear complaints from clients and colleagues about these ineffectual “water carrier” and “errand boy” mediators, I know this to be true to a certain extent.

I also know some very good mediators. So the explanation that Tammy puts forth is probably equally true. As Tammy puts it, “When we’re good, when our work is seamless, and when we’re not strutting around to stroke our own egos, we and our contributions may be invisible.”

So, the question Tammy asks is, “What do good mediators do about it?”

Need we do anything? If you are a good mediator; if you provide value to the settlement process; if you manage the personalities, ask the tough questions, coax the right responses, can you really do anything else? Likely not.

I agree with Tammy that “Credible observability doesn’t come from us talking about ourselves. It comes from others talking about our work and successes.” I’ve been fortunate to have some good lawyers say some nice things about me on my website and to others. It’s a hard road to hoe, but I think you must trust that when you do a good job, the parties and advocates will remember and will spread the word.