A Little Horn Tooting

I am told I am not enough of a self-promoter, so I thought I’d share a wonderful testimonial email I received today from a recent mediation client.  No, he’s not a relative and I didn’t pay him off!

I am truly very humbled that he took the time to write such wonderful things about me.

Thank you, Jay.

Blog Roundup

Here is a short list of interesting posts/blogs I’ve read this week:

A new (to me) blog called re:solutions by Dallas attorney-mediator Gene Roberts.  One of Gene’s recent posts asks “Is mediation killing big law firms?” I’ll respond in more detail sometime later, but my answer is “No.  BigLaw is doing a great job of pulling a Roman Empire all by themselves.”

Marvin Schuldiner has a post about an interesting bill in the NJ Assembly banning abusers from receiving alimony or inheritance.

And Geoff Sharp posts a link to 11 new ADR research papers out of Australia.

Off to mediate a homeowners dispute.

Website Updates

Hello all.  Please take a look at my website for newly updated and revised content.  The layout and look remain the same, but the content should be more user-friendly and informative.

Please stop by and take a look.  And please, tell your friends, colleagues and enemies!

Chris

If the site doesn’t look any different, hit the “refresh” button to clear your cache.

New RSS feed

I switched from Feedburner to the new Google/Feedburner. They say it will redirect traffic automatically, so if the three of you who actually read this blog have trouble with your RSS feed, let me know.

I want my day in court.

Ryan McKeen of A Connecticut Law Blog illustrates one of the common barriers to settlement – a party’s insistence on having their day in court.   I see this very frequently during my Monday sessions with a local small claims court.    One party will put a meaningful offer on the table and despite my best efforts, the other party will say “Let the judge decide.”

What drives this?  Is it the fear of confrontation?   I would expect that for most lay people arguing to a judge would seem daunting.  On the other hand, people have been telling their troubles to complete strangers (bartenders, shrinks, Dr. Phil) since the dawn of man.  Telling a black-robed stranger may seem easier than confronting their own issues and discussing the matter calmly with the person with whom they have the problem.

At some point after hearing those words,  I typically ask people a variation of this question – “The last time you made a big decision in your life (get married, have kids, buy a car, buy a house), did you let a total stranger decide for you?”

It doesn’t always work, but it makes them think.

House Calls?

A New Jersey mediation provider is now offering “in-home” mediation services for divorcing couples.  Ahh, yes.  I can see it now.  One conniving spouse hiding the baby monitor in the ficus tree so they can hear what’s going on in caucus….

Tip o’ the hat (and a welcome back) to Diane Levin at Mediation Channel.

A Case For Maintaining Mediation Notes?

Back from his aborted summer vacation, Geoff Sharp brings our attention to an interesting article from Australian mediator Michael Creelman.    Mr. Creelman argues that the practice of destroying notes after mediation “could eventually be the downfall of those particular mediators.”

The argument seems to revolve around two situations – the mediator as witness in later proceedings and the mediator as defendant in a malpractice action.

I’m not sure that the former situation presents a compelling argument, at least here in the Great State of Georgia.  Under our rules,the mediator for a court-annexed or court-referred mediation cannot be

subpoenaed or otherwise required to testify concerning a mediation in any subsequent administrative or judicial proceeding.  A neutral’s notes or records are not subject to discovery. Notes and records of a court ADR program are not subject to discovery to the extent that such notes or records pertain to cases and parties ordered or referred by a court to the program.

That would preclude any necessity for maintaining notes.  If they are not subject to discovery, and are not admissible, then why maintain them at all?

It remains to be seen whether this rule would protect the mediator in a strictly private mediation.  If not, then Federal Rule of Evidence 408 may provide some protection for a mediator, as the communications during a mediation can be considered “conduct or statements made in compromise negotiations.”  Further, while there is some ambiguity in the law, the Georgia counterpart to Rule 408, OCGA 24-3-7, states, in part, that “admissions or propositions made with a view to a compromise are not proper evidence.”  Either way, I see no compelling reason to keep my notes, and like Geoff, I make sure to tell my clients that I destroy all notes upon completion of the mediation.

As for the latter situation, the Model Court Mediation Rules for Georgia state that

No neutral in a court-annexed or court-referred program shall be held liable for civil damages for any statement, action, omission or decision made in the course of any ADR process unless that statement, action, omission or decision is 1) grossly negligent and made with malice or 2) is in willful disregard of the safety or property of any party to the ADR process.

Again, there is no such immunity for strictly private mediations; however, I struggle to see any viable theory under which a mediator can be held liable for professional malpractice or negligence.   For starters, what is the legal duty?  And what would be the breach of that duty?  If the parties are represented by counsel, where is the causation?

Frankly, I got into mediation because I am terrible at record keeping.  I am not a pack rat.  I am not good at saving things (it drives my accountant – and my wife – nuts).  I relied on the abilities of my assistants to keep my files straight.  I really like the ability to shred my notes at the end of the mediation.  Personal predilections aside, I still think that the best way to maintain the confidentiality of a mediation is to shred the notes the mediator has taken.

This might present an opportunity to write an article for the State Bar Journal. Maybe I’ll put it on my TO DO list…..

The World’s Most Egregious Indian Giver?

You won’t believe what this disgruntled husband wants back in his divorce.

And yes, I am perfectly aware that the term “Indian giver” might, by some PC types, be considered offensive.  Well, it’s an effective and well-known idiom and I really don’t think anyone goes around muttering, or thinking,  “Those damned Indians (or Native Americans).  Always taking stuff back they donated.”  They are simply words that concisely and effectively communicate the issue at hand.

Exchange Your Bottom Line Blindly?

I’m sure that at one time or another, most mediation advocates have walked into mediations unsure whether the other side was in the same “zip code”, “ballpark” or even “universe”.   Even after a few rounds, even the mediator may be unsure whether that 8 figure demand is bluster or a serious number.

Over at the always interesting and practical Settlement Perspectives,  John DeGroote discusses a creative method of determining whether mediation might be useful in resolving the dispute – the “blind bottom line approach” or as John W. Cooley called it, “blind bidding enhancement.”

In this process, each side agrees to submit to the neutral their bottom line positions.  If the numbers are within an agreed upon range, then the mediation proceeds.   If not, the neutral informs the parties that they are not within range and keeps the numbers confidential.

Initially, I didn’t think that this would work unless the lowest demand was less than the highest offer.  But John explained to me that it is an issue of re-framing.  He believes that even though the plaintiff might say they won’t go below $4million (or $4,000 even), and the defendant says they won’t go higher than $3.5million (or $3500), once the parties realize the gap is small (relative to the total amount at stake), they will proceed with mediation.   This may be the case, but I’ve seen people fight over $10 in a small claims mediation.  Yes.  $10.

I think this can be a great idea for certain types of cases – high end PI cases and employment cases come to mind.  But I am not certain I would want to mediate the case knowing the parties’ bottom line positions.  I generally avoid this knowledge as  I think it can unnecessarily and perhaps unconsciously alter the way I approach the mediation.  Especially as the parties reach that “sweet spot.” But that is a “me” problem.

John has called on the mediation blogosphere to come up with an agreement that would memorialize this type of arrangement.  I’ve got some cases this week, but I promised him I’d put it on my To Do list!

It’s mine now, you whippersnapper!

It’s every 13 year-old boy’s nightmare.  Losing your football over the fence and into the “crazy old lady’s” yard. Now thrown in the arrest of the “crazy old lady” for doing her best Lionel Hutz imitation and citing the legal precedent of Finders v. Keepers when asked to return the football, add in the resulting lawsuit, and you’ve got the farce that happened in suburban Cincinnati.

While it would appear that the parents of the presumably “snot-nosed kid” initiated a call to the police or else the old woman would not have been arrested, they did try to meet to discuss how they “could peacefully coexist and how [they]  could retrieve anything that might land or blow in her yard.”

This one befuddles me.  Everyone suffers.  The young teen and his friends have to walk on eggshells when playing outside lest a stray gust of wind blow their ball or frisbee into the neighbor’s yard.  The 88-year old neighbor is forced to resume mowing her own lawn, which had previously been mowed by the boy or his father.

I really fault the elderly woman’s lawyer for this.  Frankly, he should know better.

Hat tip to Overlawyered.