Twelve Angry Men (and Women)?

Even though it is considered a civic duty and essential part of the Anglo-American Common Law system since 1215, nobody sane really enjoys jury duty.  You are paid a measly stipend to be treated like a mushroom. And now it seems the mushrooms are revolting.

Faced with the financial burden of taking off from work several days, or even weeks, to sit on a jury some jurors are acting out in passive-aggressive ways.

Spurned in his effort to get out of jury duty, salesman Tony Prados turned his attention to the case that could cost him three weeks’ pay: A Los Angeles County sheriff’s deputy was suing his former sergeant, alleging severe emotional distress inflicted by lewd and false innuendo that he was gay.

Prados, an ex-Marine, leaned forward in the jury box and asked in a let-me-get-this-straight tone of voice: “He’s brave enough to go out and get shot at by anyone but he couldn’t handle this?” he said of the locker-room taunting.

Fellow jury candidate Robert Avanesian, who had also unsuccessfully sought dismissal on financial hardship grounds, chimed in: “I think severe emotional distress is what is happening in Haiti. I don’t think you could have such severe emotional distress from that,” he said of the allegations in the deputy’s case.

The litigants in that case dismissed the jury and converted their case to a bench trial.

I will not insult your intelligence and suggest that every jury is going to rebel against the system or claim that the only way to fairly resolve your case is through ADR.  But the current economic crisis is something that lawyers should take into account when assessing the strengths and weaknesses of their case.    As one Los Angeleno juror put it,

“Money is such an issue and to give money to someone for results of a case, it’s really important that they’re getting it for a real reason, an important reason.”

A lawyer preparing for trial should ask herself: Is the jury going to sympathize with that PI plaintiff or see a malingerer out to score on a dubious claim?  Are the jurors going to care about the corporation going after a “little guy” struggling to make a living or will they see a defendant trying to cheat the system?  Will the jury pay attention to several days or weeks of evidence and testimony when they are thinking whether they can keep the lights on or feed their kids with their $25 a day stipend instead of their regular paycheck?

If you really can’t answer those questions, then mediation or arbitration presents a better opportunity to limit those risks and get the case resolved.

A tip o’ the hat to Steve Mehta.

If Anyone Needs a Mediator, It’s These People.

Two sides sit across a table.  They are faced with a major problem.  Both are adamant that their position is the strongest.  They’ve bickered and argued for months, creating a stalemate that has caused considerable damage to their business, their reputations, their relationships, as well as their future ability to work together.

Sound familiar?  Sure.  It probably sounds just like many of the cases with which you deal.  If this were a business dispute, someone would probably suggest mediation.  Having a neutral go-between could ease the tensions and sort out the issues, identifying some common ground on which to build.

But it isn’t.

Who needs a mediator more than anyone else in our country right now?  The boobs Solons running our government. Partisanship on both sides of the political aisle has caused a stalemate in the debate over health insurance reform.  It’s a particularly sad day when the putative leader of the Free World utters the phrase, “”I don’t know that those gaps can be bridged.”

Unfortunately, as Sen. Bayh recently pointed out, the deal makers, the moderates, the pragmatic members of our government have abdicated any role to the demagogues on the fringes.It doesn’t matter what side you support.  Both sides need to move from their entrenched positions and discuss real options, not just talking points prepared by pointy headed people in Ivory Towers or tucked inside the Beltway.  Having a mediator involved would be very useful.

Please forgive my foray into politics but the analogy seemed quite obvious to me.

The Latest CKA Mediation and Arbitration Report is Online.

I released my latest report/newsletter yesterday to several hundred friends, clients and prospective clients.  You can find a web-based version of it here.   I hope you find the tips useful the next time you mediate.

-Chris

Barking Dog Mediation on the Rise

I recently came across this article noting that “there has been a 30 per cent rise in the number of mediations between neighbors over animal nuisance problems” in the Australian province of New South Wales.   On the one hand, I was glad to hear that parties are turning to mediation to solve disputes and realizing that mediation often creates more stable solutions than a court ruling because “the parties themselves have had input into them and have had a better understanding of the issues between them.”

On the other hand, I really have to wonder whether this improves the public image of mediators or simply causes the average person to think of a mediator who helps parties resolve mundane, trivial matters.

Just thinking out loud.

The Joys of Dealing With the Pro Se Party – Part 1

Sometimes, my job is somewhat humorous, which is a relief because a lot of the time I am dealing with people in stressful situations.  Every time I come home with one of these stories, my lovely wife suggests that I save them and write a book.   Maybe someday I will do that.  Until then, I will tell them here.  Of course, there is always the difficulty of maintaining confidentiality with respect to these stories and I will try my best to obfuscate a few facts to protect the innocent those who need protection.

I should have known that it was going to be a weird one when the ADR office emailed me within 15 minutes of sending out the Notice to tell me that the Plaintiff’s attorney had withdrawn.  My second hint should have been the letter from the defense counsel to the now pro se (unrepresented by legal counsel) party.

What really drove the point home was a phone call with the pro se that went something like this:

ME: This is Chris Annunziata.  I am the mediator assigned to handle your case.  I just want to confirm that you will be attending the mediation on Tuesday.

PRO SE (“PS”):  Yea, but I ain’t gonna pay you.

ME: Well, then, we have a problem.

PS:  No.  There’s no problem.  I ain’t paying you.  I don’t see the point in having mediation.

ME:   Do you understand that the Court has ordered the parties to participate in mediation and appointed me to mediate this case?  This is your opportunity to try to discuss a settlement with the other side and try to resolve this case before appearing before the judge.

PS:  I don’t care.  I ain’t paying you.

ME:  Are you telling me that you want to mediate, but refuse ot pay me or that you don’t want to mediate and want to cancel?

PS:  No, I don’t want to mediate.  And I don’t have any money to pay you.

ME:  OK.,  Then we’re going to cancel the mediation because you refuse to appear and I will file a report with the Judge that you failed to appear at mediation.

PS:  Wait.  I’m gonna be there. But I ain’t gonna pay you.  They took all my money.   [Mind you, this is a personal injury dispute, not a theft or fraud case]

ME:  The court imposes a fee for the mediation and I am entitled to my compensation for mediating this case with you.  I suggest you discuss your complaint with the Court or the ADR office, but if you appear tomorrow, you will be responsible for one-half of my fee.  Otherwise, I’m canceling the mediation now.

PS:  I’m coming, but I ain’t paying you.  You better be there.  Do I gotta go through a metal detector?

ME:  Yes.

PS:  Then I’m gonna have to leave my guns at home.

ME:  Yes, you will.  You cannot carry a firearm in the Courthouse.

PS:  Yes, I can.

ME:  You will have to take that up with the deputies at the security desk, but there will be a metal detector.

PS:  OK.  I’ll be there.  You better be there.  And I ain’t paying you.

——–

Not Every Mediated Settlement is a Good Settlement.

A little caveat for this post.  I am stepping slightly outside my bounds as a neutral here.  Some might say that it is not my place as a mediator to comment on the reasonableness of a settlement.  I agree. When I am the mediator on that case. The rest of the time, I am entitled to my opinions. I certainly don’t disagree with attorneys being fairly compensated for their work. But as an objective observer and as a consumer, this case doesn’t seem right.

Last week, business hardware company Pitney Bowes announced a mediated settlement of a class action “blast fax” lawsuit originally filed here in Georgia.  The suit arose when Pitney Bowes purchased a smaller supplier of printer products and used that customer list to solicit business from the supplier’s customers. The “blast fax” law prohibits companies from sending solicitation faxes without permission of the recipient or an existing business relationship.  Even though the supplier Pitney Bowes purchased had a relationship, the law prohibits companies from buying customer lists to circumvent this prohibition.

I think it was perfectly reasonable for Pitney Bowes to assume it had the right to use the customer list, which is an asset it purchased and which had a distinct value.  It was likely itemized among the various line items in the settlement papers.  The people on the customer list bought toner from the old company.

In any event, the lawyers who specialize in suing for such violations got involved.  Classes were certified.  The case was removed. And the parties decided to go through voluntary mediation. After two days of “some of the most intense mediation [the Plaintiffs' lawyer has] been through,” the parties agreed to settle the claim.  Normally, I’d be all for this.

The final settlement provided that “each member of the class will receive a coupon worth $26 toward any $100 purchase of ink or toner from Pitney Bowes for each week they received one of the faxes, with a $2 million cap on redeemed coupons.”

So what about the plaintiff’s lawyers?  They got roughly $1 million.  In cash.

It just doesn’t sit right with me.  Again, I am not against the plaintiffs bar or for attorneys being fairly compensated.  I understand class actions can be quite expensive, but this just seems out of proportion, to both the length of time the case was active and the actual settlement agreed upon.  As Walter Olson of Overlawyered notes in a 2006 article, it has become quite the cottage industry for a small group of lawyers. Assuming Pitney Bowes is “out” the maximum $2 million in lost revenue from coupon use, the attorneys will have collected 47.5%  of the damages as fees.

In the abstract, I can see the benefit of laws like this.  By creating a civil liability enforceable through the courts, it transfers the power to police the behavior from the state to the individual.  The threat of a potentially crushing monetary judgment for violating the law is meant to deter the violator from engaging in the prohibited activity.  Whether it works or not is debatable.  My guess is that blast faxes have disappeared more from the simple fact that nobody faxes anything anymore when you can scan and email.

Back to the case at hand. Pitney Bowes sent blast faxes to customers of the business it just purchased. Apparently, some customers didn’t want to do business with Pitney Bowes, or just wanted the faxes to stop.  Those blast faxes violated the letter of the law and exposed the company to significant money damages payable to the aggrieved customers.

So what did the plaintiffs’ lawyers negotiate on behalf of the plaintiffs, who supposedly sued to stop receiving faxed coupons, and who were entitled to money damages?  Coupons for the plaintiffs.  Cash for the lawyers.

Of course, we don’t know what happened in this “intense” mediation.   Nor do we know whether the initial demand from the plaintiff’s lawyers was for a cash payout to the relatively small and easily identifiable class.  But it is hard to say that this settlement benefited the interests or needs of anyone except the plaintiff’s lawyers.

Happy Trails, Geoff.

I seriously doubt that any of you who read my blog do not read Geoff’s.  But in case you don’t, Kiwi Mediator and blogger extraordinaire Geoff Sharp is stepping down from his mediation blog, mediator blah…blah.

Geoff’s blog was one of the first I found as I was researching whether and how to dive into the mediation blogosphere.  I will definitely miss his informative, yet very entertaining, self-deprecating style.

Quite ironically, he was the first to try to talk me out of quitting blogging back in May.

Geoff’s posts will be missed and I wish him the best in whatever new challenges and family matters that are pulling him in different directions.

You Catch More Flies With Honey.

That’s what my wife always says.  Apparently Nancy Hudgins agrees.  Seems like common sense to me.  Who wants to deal with an abrasive jerk?

New Georgia Ethics Opinion Results in First Ever “De-Registration” of Mediator

As I have mentioned in the past, the Georgia Office of Dispute Resolution (GODR) oversees the court-referred mediation programs in the State of Georgia.  Georgia has minimum training and professional experience requirements for mediators that wish to accept court-referred cases.  They also have an Ethics Committee that reviews complaints against mediators.

Yesterday, I received an email alert from the GODR regarding a recent ethics opinion, only the third ever to be issued.  It is a particularly troubling case due to the numerous and egregious lapses in judgment made by this particular mediator.

In summary, the mediator, who was also a licensed psychologist, was referred a couple in need of counseling through a church program for troubled marriages.  After meeting with them jointly and individually in a vague and undefined capacity, he offered them a choice: continue marriage counseling with him or allow him to mediate their divorce.  This was the first mistake.

After the couple chose to have him mediate, but before the mediation occurred, the wife/mother requested that the mediator conduct psychological testing on her son for some educational problems.  The mediator agreed. Mistake number two.

Sometime later, the couple participated in two mediations, after which the husband/father terminated the mediation relationship and filed a complaint against the mediator. The husband/father alleged that the mediator was biased against him and pointed to several statements made by the mediator during the mediation, the educational testing performed by the mediator on behalf of the mother, as well as the fact that mediator allegedly “spent an extra hour counseling his wife alone after the second mediation session ended.”  The mediator claimed the “extra hour” was simply a caucus and part of his policy to give “equal time” to the parties.  He also claimed that the alleged bias was part of his technique to help diffuse tension and I guess, reality test.  The explanations he provided seem like ex post facto excuses, but not clearly “red flag” mistakes or ethical violations.

After the mediation relationship was terminated, the wife/mother asked the mediator to continue counseling her children for educational and behavioral issues, and he met with both of her children several times.  Mistake number three.

But we still haven’t reached the piece de resistance.

Sometime after the counseling session, the wife/mother filed a motion in conjunction with the divorce proceeding and for whatever reason, the mediator was called to testify.  rather than refuse to testify, as spelled out in his own Guidelines for Mediation and the ADR Rules, the mediator willingly testified about “how he came to mediate for the couple and the result of the mediation.”  While the Ethics Committee found that these “matters in themselves are not confidential in a court-connected mediation,” they also found

no evidence that he refused to testify or fought to quash a subpoena.  There was no evidence that he sought a waiver of confidentiality from the family. Respondent did voluntarily what he could not be required to do under the rules.

Mistake number four.

Even the judge recognized this mediator’s suspect ethics and wrote in an Order that he

“found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

Then, in the bonehead move to top all bonehead moves, the mediator responded to the Court’s written opinion challenging the mediator’s professional integrity by filing an eight page affidavit, in which the mediator

described [the husband's] disruptive and uncooperative behavior during the mediation and quoted angry and insulting statements [the husband] made in joint session, as well as in caucus.

In his defense, the mediator claimed that the court needed to know “the true reason for the failed mediation,” and that he “sought only to clear [his] name.”  Mistake number five, six, seven . . .

The Ethics Committee Opinion reads like a laundry list of “What Not to Do As A Mediator”.    Of the major issues, the Committee found that the mediator violated the Ethical Standard for Mediators by serving the family in three different professional roles within three months’ time – counselor, mediator, educational consultant.

The Committee also found that the mediator’s act of

testifying voluntarily in open court about the mediation and [Mediator's] voluntary submission to the court of an affidavit detailing [the husband's] behavior and words in the mediation constituted multiple violations of the confidentiality rules.

But then, of course, you already knew this because you have common sense. The Ethics Committee felt that this man committed such egregious errors that they removed his name from the roster of approved mediators. Apparently, the first time that penalty has ever been invoked.

My only issue with the Committee is that the Opinion does not name the mediator.  I believe this is a mistake. Ineptitude of this magnitude should be exposed.  While he can no longer accept court-referred cases, he is allowed to continue working with private parties.  In order for the marketplace to function properly, information such as this should be shared or made available to all potential consumers.  And if I knew who he was, I’d expose him in a heartbeat.

Why mediation works.

I came across this interesting quote the other day:

We are generally the better persuaded by the reasons we discover ourselves than by those given to us by others.
- Blaise Pascal

I think this effectively illustrates why mediation works. As I discussed before,

[Mediation] 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.

An effective mediator, even an evaluative mediator, is one who can help the parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, and discuss settlement options by asking the right questions.   When parties are asked their opinions, when they are asked to present options, when they are forced to confront issues head on and look objectively at potential outcomes, when an agreement is reached, they come to believe that they reached the solution themselves.