An uphill battle against the stigma of being “court-appointed.”

I recently received a call from an attorney scheduled for a court-referred mediation:

“Chris, this is Lawyer X.  We’d like to cancel the mediation.  Don’t take this personally, but we’ve decided on another mediator.”

Of course, I took it personally, expressed my disappointment and politely pressed the issue with the lawyer.

What I learned shouldn’t have surprised me.  This lawyer, a sophisticated end-user of mediation, had a bad experience with a court-appointed mediator and did not want to repeat that.   While the specifics of the occurrence were not shared, there was distinct frustration in the lawyer’s voice.

The sad truth is that I understood what this lawyer meant and what I had to do.  If I wanted a shot a keeping the mediation, I had to prove that even though I was  “court-appointed,” I was competent enough to handle the case.

There is an unfortunate perception among many practicing attorneys here in Atlanta that the mediators on the court-appointed lists are simply not up to snuff.   I do not fully share this opinion.  Like any other vocation, there are some very good “court-appointed” mediators and some not-so-good “private/professional” mediators.

I do not think that licensure is the answer.  I just need to be ready for an uphill fight and start marketing a little more heavily to ensure that when an attorney reads my name on a “court-appointed” notice, she recognizes that I am a professional, competent mediator she would like to use.

I hate technology sometimes

My newfangled Blackberry Curve erased ALL of my calendar entries prior to the date I got it. ALL OF THEM. So, now I have no idea where I was in 2008. And the auto archive happened to run in between the LAST auto archive and the glitch that erased everything prior to March 2, 2009, so that is empty as well.

I need a drink.

What, exactly, is a Kumbaya Singing Mediator?

Seriously?  I recently found myself telling someone that “I’m not a mediator that wants everyone to sing ‘Kumbaya’”.  Having never actually sung “Kumbaya,” I realized that I am not sure I know exactly what that means.  I simply picked up on the term from an article that Geoff cited.   I actually had to Google it.

And I learned that Kumbaya is apparently one of the most annoying and repetitive songs since “Row Row Row Your Boat”, so  I can see why you don’t want to be known as a Kumbaya Singing Mediator.  On the other hand, the annoying repetitive nature of the song might be effective at putting your parties in a suggestible trance-like state.

Georgia and South Carolina Courts Favor ADR.

Every once in a while, someone will ask me, “Can you really make a living mediating full time?”   Despite any lingering doubts (especially that one month early on when I made $75 on mediation), I would always respond, “Yes.”  Well, the Augusta (GA) Chronicle recently reinforced something I already suspected knew: Georgia Courts favor the use of mediation and there appears to be lots of mediation to go around.

The Chronicle spoke with the director of  the Georgia Office of Dispute Resolution,  Shinji Morokuma.  He estimates that in 2008, nearly 38,000 cases were referred to mediation by the State and Superior Court system (our trial level courts) resulting in approximately 20,000 cases being resolved through ADR.  By the GODR estimate, it would take 17 full-time judges to work through that case load.

Now, the ODR has about 2400 registered neutrals, but in reality, I doubt that even 5% practice mediation “full-time”.   Even if 200 mediators bill themselves as “full time” and are trying to make a living at it, there’s gold in them thar hills.  We just have mine it.

Hi Ho! Hi Ho!

Am I THAT Out of Touch?

In the past few weeks, I’ve run into some head scratching cases in the small claims court.  Cases that make me wonder, “Have I completely overestimated what the average lay person understands about the law?”

I’m not talking about the Rule Against Perpetuities, ERISA, or arcane sections of the Tax Code.

I’m talking about one of the most basic aspects of our legal system. A foundation of what used to be our capitalist economy – the corporation.

The first head-scratcher case involved a young man who brought his car to a well known, franchised auto repair shop to have a part replaced.  The part was either incorrect or incorrectly installed and the engine blew. This really isn’t important to the story other than to illustrate that he had a legitimate claim.

Care to take a guess who this guy sued?

“The parent company of the well known, franchised auto repair chain?” Nope.

“The franchisee corporation that owns the local auto repair shop?“  Guess again.

“God?“ Nah.

He sued the Service Manager.  Personally. The hourly employee who stands at the front desk, greets customers, fills out orders and invoices, passes car keys to the grease monkeys and accepts payment.  The guy wasn’t even an owner. To make matters worse, when the case came to trial, the Service Manager was no longer the Service Manager.  He was unemployed.

I called impasse within 5 minutes of being handed the case because I was not going to even suggest that the ex-Service Manager make a settlement offer.  It seemed ridiculous.

I also tried to explain to the aggrieved customer (who looked like he had a case, since the part they installed was for the same make vehicle but apparently a different model) why the case would go back to the judge and what might happen there.  I asked him,. “If you went to Home Depot and bought a drill, and that drill caught fire when you plugged it in, would you sue the cashier?”  All I got in return was a blank stare.

Is the corporation really that difficult a concept for the average person to understand?

What about insurance?  Everyone is supposed to have it.  Shouldn’t everyone have a vague idea how it works?

Yesterday, I was handed another head-scratcher case.  We never even got to the mediation room.  As I walked from the Courtroom to the mediation room, I read the file.  Turns out that the plaintiff’s car was somehow damaged and the plaintiff filed an insurance claim.  The insurance company contracted with an independent adjuster/appraiser to assess the damage.  For whatever reason, the insurer then denied the claim.  That really isn’t relevant to the story.

Care to take a guess who this person sued?

“The person who caused the damage?” Nope.

“The insurance company?” Too easy.

“The U.S. Government, which is well on it’s way to nationalizing the banking and insurance sectors?“  Guess again.

The plaintiff sued the independent adjuster, because, as the plaintiff put it, “He refuses to fix my car.”  Ninety seconds with the adjuster confirmed that he wasn’t in any way responsible for the damage, wasn’t an employee or representative of the insurer and had no settlement authority.   I didn’t even bother trying to explain this to the plaintiff, who kept telling me, in subtle variations,  “That man won’t fix my car.”  I sent them right back to the Court.

Is insurance such a foreign concept?  Is the concept of “independent contractor” that complex?  Didn’t this person speak with an insurance agent or broker?

Am I that out of touch with what the “average” lay person knows and understands?

Fordham Law Symposium – “Against Settlement”: 25 Years Later.

One of the worst things about being 900 miles from my law school alma mater is that I typically cannot attend the excellent events they hold.   Case-in-point:  Against Settlement: Twenty-Five Years Later. The Fordham Law Review has assembled an impressive roster of well-known professionals from the ADR, complex litigation, and public interest communities to discuss the role of settlement and adjudication in civil litigation, including Owen Fiss, the author of the seminal article Against Settlement, Kenneth Feinberg, and Michael Moffit of ADR Prof Blog, as well as distinguished members of the Fordham faculty and family.