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

A little horn-tooting.

I’ve heard it said that it is a sad dog that doesn’t wag his own tail, so here I am wagging.  I just posted some new testimonials on my site.  Here are some excerpts:

“I was amazed we accomplished what we did.”

“Chris’ calm and confident demeanor helped my clients and the opposing parties avoid the emotional outbursts that had frustrated all prior settlement discussions”

and

“I was really impressed by how quickly Chris understood the issues and personalities that had been a barrier to settlement, and how he brought to the table, not just an understanding of the law, but some practical solutions that neither side had considered.”

The Joys of Dealing With the Pro Se Party – Part 2

When we last left our hero (me), I was dealing with the pro se party from hell.  It took three different conversations with both me and the ADR office just to confirm whether he would even appear at the mediation.

The only two things he made clear were that he wasn’t gonna pay me and he wanted to come strapped.  That is, for the street-impaired, carrying a pistol.

I’m not sure his question about carrying in the Courthouse was a threat, more of a practical question from a man likely used to carrying a concealed weapon. This is Georgia.  Besides, in my experience, the people that make threats are the ones least likely to actually follow through with them.  Despite this, I alerted court security (and the insurance company lawyer).

The appointed time finally arrived.   The Sheriff’s Department quite generously, cautiously, and turns out, unnecessarily, assigned quite a large, armed deputy to shadow me.

The particulars of the mediation aren’t really important except to say it didn’t last very long.  For one thing, after I handed him the court referred mediation guidelines to review and sign, he told me he was illiterate.  I had no real reason to question his veracity, but when the defense told us the amount of the medical bills for this personal injury claim, he had no trouble quickly tripling that amount in his head to come up with a damages demand [Some lawyers use that as a very loose rule of thumb in Georgia to calculate damages].

Second, he had nothing with him.  I mean nothing.  No bills, no receipts, no records, no radiology reports, no police report.  Nothing.  Just the Notice telling him when and where to be, which he apparently figured out despite telling me he was illiterate.

Finally, he was either sadly mistaken or completely untruthful as he repeatedly claimed that he had not been compensated for his property damages.  The defense had all the necessary paperwork showing that he filed a claim but was not paid because he owed about as much on the truck as it was worth.

I am always wary of dealing with the typical pro se for various reasons.  First and foremost, just about anything I say can be wrongfully interpreted as legal advice or undue influence.  Secondly, as an experienced attorney, I am distrustful of anyone who can’t find a single lawyer to take his claim. I’ve seen some very dubious claims asserted by some very dubious attorneys.  But this guy took the cake.  He a) didn’t want to mediate the case in the first place; b) steadfastly refused to pay me; c) made a not-so-veiled threat about carrying a gun into the courthouse; and d)  claimed to be unable to read and sign any documents.

Thankfully, my practice of late has avoided any pro se parties.

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.

——–

The Return of the Blog.

Having recently been cited as one of Mediation Blogging Maven Diane Levin’s “24 Blogs to Follow“, I guess I owe it to any new readers to produce some new material.

I am caught at a loss, because I wasn’t really planning on doing that, and haven’t seen anything come across the various news/blog/web sources that I read that inspired me to write.  And I certainly could not write about the very difficult, emotionally draining mediation I had yesterday.

I will be thinking about a topic or two and try to put something up later today or tomorrow.

Thank you again to Diane for the recognition and I hope to have some new material soon.

C

Wherein I Stopped Being A Mediator and Started Being a Businessman.

Quite plainly afraid of confrontation, he always calls in the 7:00 hour, morning or night, wholly unaware that my office line rolls to my cell.  Like the other conversations, it beings with the exhortation that he is trying to pay me and isn’t avoiding me.  At first, I took a soft, conciliatory, mediator-like  approach.  I listened.  I understood his problems.  I told him I was willing to “work with him.”  I foolishly reduced the amount he owed by about 30%.  I gave him until his next paycheck.

Weeks passed.  No checks in my mailbox.

This call was more of the same.  This time I had had enough.

“Times are hard,” he said.  Times are hard all over, I replied.

“Can you work with me?” he queried.  No, I’ve already “worked” with you, I told him firmly.

“I’m not not trying to pay you,” he exclaimed quite dubiously.  No, I said, your failure to pay me for over 6 weeks now shows me that you really aren’t trying to pay me at all, I sternly replied.   If I don’t receive payment, in full, in the next X days, I’m off to Small Claims Court to file suit.  And I will ask for far more than the fee I offered to accept as a compromise, including my attorney’s fees, court costs and interest.

And so it goes.  I really don’t expect to be paid.  I will absolutely file suit, but I don’t expect him to show up.  I will take a default, but I will likely find it hard to collect.  I take it as a hazard of working court-referred cases.  While I’ve never had a client with an attorney fail to pay and I’ve even had some attorneys pay when their clients haven’t,  I guess I shouldn’t expect much from pro se parties being sued for unpaid credit card bills or held in contempt for unpaid child support.

What brought you here . . . and will there be a blog for you to read anymore?

Every now and again, Popehat (one of my favorite blogs) examines the “Road to Popehat“, that is, the search queries that bring random guests to their blog.  Of course, I have far fewer readers than the Ken, Patrick and Ezra, but I thought I’d do the same thing.

It’s an odd assortment of phrases that you might expect would bring one to a (quasi) mediation themed blog:  my name, “arbitration”, “mediation”, “what does a mediator do”, “ridiculous lawsuits” (even though others have that well covered).  Some are odd, but related to some key words in stories on which I commented, like “tricked out Mustang GT,” or “cheetah chasing gazelle“.

But one recent query really jumped out:

“how to screw spouse in mediation”

Of course, I had to run the search myself to see what would bring such a despicable person to my blog, because I am 100% certain I have never written an article about how to “screw” anybody.  Turns out that Google search picked out keywords from my recent re-post  “How to Screw Up A Mediation.“  Phew.

One thing I did notice, though is that my most recent search queries are long on queries regarding my more humorous posts and short on anything substantive. I need to do some serious thinking about whether a) I need to spend some time ruminating and writing about mediation again or b) scrap the whole blog, as I have seen absolutely no real benefit to my practice, which was the real purpose of the blog (well, secondary to my own narcissism).  I should be focusing on more face-to-face marketing efforts.  I think “Web 2.0″ (especially twitter – which is a real time bandit) rarely bears fruit.

I’m leaning toward scrapping the blog and leaving it to the professionals like Diane, Vickie, Geoff, Nancy, etc.

We’ll see.

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.

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?

If Lawyers Dump the Billable Hour, Are Mediators Far Behind?

Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, recently called for firms to “get rid of the billable hour.”  There have been other similar calls , one notably by noted lawyer/Hollywood author Scott Turow, as well as other obituaries about the death of the billable hour.

If this catches on, can ADR practitioners be far behind?  Should we be looking for alternative billing arrangements? What would they look like?  Plaintiff lawyers have long assumes the risk of a case for a percentage of the outcome, but this would be unethical for a mediator.

Some insurance companies try to get their outside counsel to use flat fee, task based structures,  but is this really realistic for mediation?  A repeat user of mediation might not mind paying $1000 flat fee for a one-hour mediation one week and the same $1000 for a nine-hour case the next, but how would the one-time user feel?

I’d love to hear your ideas.  What would be a fair way to price mediation services other than hourly?