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.

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.

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.

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.

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)

Mediation “Reality” TV Revisited

The concept of the mediation-themed reality TV show has reared its ugly head yet again. As noted by Geoff Sharp and Vickie Pynchon, Jerry Lazar and Richard Kilnger (who makes a guest appearance in my comment section to defend the concept but conveniently forgets to mention he has a “piece of the action”), have been shopping a show called The Peacemaker.

According to the article, “The show has not proved an instant winner with television executives. . . . Lazar said he tries to emphasize the personal drama of mediations – a combination, as he puts it, of “Jerry Springer” and “Dr. Phil” – but realizes it is difficult to explain. ”

I’m on record as thinking this is stupid idea. And it appears that Hollywood may agree (for whatever reason).

Reality TV shows garner ratings by creating conflict – whether naturally or artificially: Taking food from starving castaways; Putting incompetent chefs in with experienced ones; pitting gold-digging strippers in trumped up “contests” to win the bed of an aging hair metal star. It’s contrived and it’s meant to appeal to our baser instinct. Even a show with a laudable goal – helping morbidly obese individuals lose weight – creates conflict by dangling Snickers bars, lasagna and french fries front of the newly slimmed down contestants.

As a colleague of mine said when I described the concept, “This show will only get viewers, advertisers, and top ratings if it depicts and exploits the dark side of conflict. No one gives a shit about the feel-good resolution at the end.”

This show will not raise awareness of mediation as a legitimate dispute resolution process any more than Judge Judy has helped steer litigants towards arbitration or Dr. Phil (or Sallie Jessie or Montel or Donohue or Oprah) have helped people with disabilities or mental illness seek counseling.

Frankly, I don’t want to spend the next 10 years of my career telling people, “No, its not just like on The Peacemaker.”