Some Good Natured Ribbing

Reading Overlawyered today, I chuckled at Walter’s description of this story over at LegalBlogWatch about lawyers being fooled by fake Twitters.  Then I read the story.

Turns out that one of the mediation blogging community’s very own, Vickie Pynchon was one of those fooled.  Really, Vickie?  The name Beatrice Bitcher didn’t sound just a little unusual to you? Her posts claiming to demand an associate act as her personal slave all weekend didn’t sound fishy? C’mon.

I guess you can count yourself in good company as Star Jones was sucked into a Twitter conversation with Bitcher’s fictional law partner Prickman.

And, if it makes you feel better, Vickie, falling for the Bitcher posts is not as bad as the law professors over at Volokh Conspiracy (among others) who fell for the fake Twitter account the guys at Popehat created, claiming to be the official North Korean news agency.

Win-Win Thinking on YouTube

Mediators often speak of the win-win: parties working together to make the pie larger or construct a settlement or agreement that allows both parties to benefit.  This is often a difficult concept for many people to work, especially in the world of intellectual property.  The IP rights holder wants desperately to control the dissemination of the property, be it a patent, a film or in the case of the current You Tube viral sensation, the Chris Brown song “Forever”.  They believe that they can only maximize profitability by limiting access or usage.

Upon learning that a YouTube video contains non-licensed music, most record labels will contact You Tube and demand that the offending video be removed for infringement.  Chris Brown’s label or his publisher could have easily done so with the wedding video making the rounds.

Instead, they recognized an opportunity when the saw it and included a Click-to-Buy link within the video encouraging users to buy the song on Amazon or iTunes.  As a result,

over a year after its release, Chris Brown’s “Forever” has again rocketed up the charts, reaching as high as #4 on the iTunes singles chart and #3 on Amazon’s best selling MP3 list.

That’s creative win-win thinking.

Roy Pearson Loses Again.

It’s Friday, and what would it be without a good laugh.  Thankfully, my favorite laughingstock, Roy Pearson, is back in the news.  If you don’t recall, Pearson was a ALJ who sued a dry cleaners for $50 million over a pair of pants.  He got his ass handed to him by the Court for that one.  I even think that the king of moronic lawsuits, Jonathan Lee Riches, found Pearson’s first suit laughable.

Not content to turn the other cheek after the first benchslap, Pearson also sued his employer, the District of Columbia, for wrongful termination after his contract as ALJ was not renewed.  Last week, Judge Huvelle of the DCDC benchslapped Pearson yet again, dismissing his lawsuit for failing to plead “enough facts to
state a claim to relief that is plausible on its face.”

Hat tip to Lowering the Bar.

Negotiating Tips from a Country Lawyer

Very good tips from Patrick at Popehat.  While he may have meant many of these tongue-in-cheek, or as a criticism of a specific person, the underlying truths remain the same.  For example:

In general, never tell anyone that you are well-versed in the law, even if you are an attorney.  But most especially, do not do this when you are not an attorney.

or

Assume that the party with whom you are negotiating is himself knowledgeable, or act as though you do.

Talk to Your People, They May Surprise You.

In this uncertain economic climate, with competing camps claiming the economy is exhibiting “green shoots,” “stagflation” or is still miles from “rock bottom”, many employers are cutting costs by terminating workers.  Sure, sometimes it is a convenient reason to eliminate dead weight (and we all know most companies have that), but sometimes hard decisions need to be made about good employees.

Management often makes these decisions in a vacuum, without consulting the rank and file.   But this story out of Scotland illustrates that when you discuss difficult matters with your staff and give them a choice, they will probably act rationally.  When given the choice between layoffs and an across the board 10% pay cut (with added vacation days), the employees voted overwhelmingly to keep their jobs and take less pay.

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.

More Divorcing Couples Utilize ADR.

A recent survey of Certified Divorce Financial Analysts (CDFA) indicates that a vast majority of those polled stating that the number of clients unable to continue to afford their services in this economy has increased since the previous year.   They further commented that this will result in more clients seeking a more cost-effective alternative to litigation, such as collaborative divorce and mediation.

I only recently became involved in domestic mediation, and I cannot specifically ascribe any increase in the frequency of my domestic mediations to the economy, but this makes sense to me.  Couples who generally see eye-to-eye but have some disputes over a few assets or maybe visitation and custody issues, are not well served by the adversarial process.  Litigation tends to escalate matters, driving up costs and delaying the finality of the divorce.

Hat tip to NJ Lawyer and mediator Donald Vanarelli.

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.

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.