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.

WhoCanISue.com – a sign of the Apocalypse?

Albert Einstein is said to have remarked, “It has become appallingly obvious that our technology has exceeded our humanity.”  I cannot find a source indicating to what he was referring (it was likely the atomic bomb), but it could just as easily been about WhoCanISue.com.

Time Magazine reports that this “innovation” is the brain child of Curtis A. Wolfe, formerly general counsel for Fort Lauderdale-based private equity firm Ener1 Group.  Apparently Mr. Wolfe thinks that traditional ways of finding a personal injury lawyer — the back of the yellow pages, daytime TV commercials, the sides of city buses — are insufficient.  He must also distrust state or local bar associations, most of which have referral services stocked with names of competent, qualified counsel.

Wolfe claims that his service is free to the consumer and offers “real-time access to attorneys.”  As opposed to, say, a phone call to a local law firm.  I have never met a reputable lawyer who charges for an initial consultation.

Why is access to the courthouse a bad thing, you may ask?  As prominent Miami trial attorney Richard Sharpstein “scoffs” in the Time article,

Our country’s courts are clogged with unnecessary and frivolous lawsuits which delay, if not obstruct, the access to courts of people that really need to get there, that have serious legal grievances.

Even a law professor sitting in her ivory tower at Uinversity of Florida law school agrees that this website “is likely to increase the number of lawsuits.”

Parties with legitimate grievances should have access to the courthouses.  I wonder, however, whether there are so many legitimate cases languishing because the plaintiff could not find counsel.  Is this really a service needed?   Unlikely.

See also, Overlawyered.

The Audacity of Desperation?

It started out like a normal, court referred medation.  A tenant on a month-to-month lease moved out of the property without proper notice, and owing at least one month’s back rent.  The landlord claimed it was two months, plus the month the law allowed her to claim for the tenant’s failure to provide proper notice.

During mediation, I learned that the tenants moved out because they heard, second hand, no less, that the landlord might put the house up for sale.   Since there is no use crying over spilt milk (they were out of the house several months and tied to a new lease), I did not press the tenants on why they didn’t call the landlord to see what her timetable was and find out how much notice they would have before closing occurred.  For whatever reason, they felt packing up and moving out was the best way to protect themselves. Long story short, we worked out an arrangement to settle the outstanding debt and security deposit issues.

On the way out, the landlord actually asked me, “Do you want to buy a nice house in Suburbia?”

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)

Maybe They Should Make ADR Mandatory at Michigan Law?

From Above the Law, everyone’s favorite gossipy tabloig, comes a cautionary tale of how not to handle a business dispute with your law school classmate:  Don’t send a passive aggressive “Uhm, it’s been six months where’s my cash” email to everyone on the Law School’s listserv.

The email from the seller is bad enough, but the response it provoked was worse.  The scary part is these students will graduate from one of the most respected law schools in the nation, not some US News and World Report Tier 4 school.  They may or may not get jobs in BigLaw.  Maybe they should make ADR (or anger management?) mandatory at UM Law?

I’m not sure you could pay me enough

to mediate Brit and K-Fed’s custody debacle.  Whoever did is a braver soul than I.

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.”

Europe moves to stifle free speech on the internet.

According to the ABA Journal Law Blog (quoting the WSJ), Europe has moved to ban so-called

flogs (fake blogs), AstroTurf (alleged grass-roots campaigns run by corporations) and lobbying campaigns featuring sock puppets (individuals who post under numerous aliases)

Is this such a rampant problem that European legislators have nothing better to do than prohibit this?  And how criminal of an activity is this that prison time is a possibility for violating this “law.”  What’s next?  Prison time for James Frey and Margaret B. Jones?

This would never abide here.  Or would it?

Is anyone else disturbed by the idea of a “Judge Judy” style mediation TV show?

This morning I found a post in my news alert advertising mediation domain names for sale. As I poked around further on the site, I found the following post:

Cases Needed for TV Show

For a new mediation-themed reality show, we’re looking for “Judge Judy” types of cases in Southern California — involving neighbors or family members or co-workers or a retailer-customer conflict or a landlord-tenant dispute or, well, you get the idea. If you know of such a situation, and the parties are willing to waive confidentiality in exchange for having their dispute settled for free, please let us know.

Does this disturb anyone else?  Reality shows, whether in a courtroom, a hermetically sealed house or a desert island, thrive on conflict and confrontation, two of the very things that we are taught as mediators to avoid so that the parties can reach an agreement.  This is ridiculous.

The Pants Judge Files Suit Again! But only for one measly “mil”.

It was bound to happen sooner or later. After being canned last year by the (in part for filing the infamous $54 million lawsuit over his pants), Roy Pearson is suing the District of Columbia for wrongful termination, seeking damages of a mere $1 million. Pearson claims that he is a protected whistleblower who was fired for exposing corruption within the Office of Administrative Hearings.

Never at a shortage for words hyperbole, Pearson claims to have suffered “‘humiliation’ and ‘physical illness’ as a result of his former employer’s ‘wrongful actions.’”

Between this suit and the appeal of the $54 Million Pants case, he’s the busiest unemployed lawyer in America.