Never underestimate the power of a meaningless gesture.

When I first read the story of Ria Ramkissoon, I was horrified that such a story could still happen in 2009 in a civilized, modern society.  In short, Ms. Ramkissoon is a member of a whack-job cult.  At some point in 2006, the leader of the cult,  “Queen Antoinette,” decided that Ramkissoon’s one year old son was a demon because he refused to say “amen” after meals.  The “Queen” ordered that the boy be refused food and water.  Sadly, he died.   When the authorities caught up with these charlatans and fools two years later, the mother and several cult leaders were charged with first-degree murder.

As sad as the story is, it turns out that there is actually a useful negotiation and dispute resolution lesson to be learned from the plea agreement that Ramkissoon’s lawyer’s struck with prosecutors.

When confronted with what she had wrought,  Ramkissoon apparently insisted that her son would be resurrected per the “teachings” of “Queen Antoinette.”   She would only agree to enter into a plea agreement and testify against the cult leaders on the condition that all charges against her would be dropped if her son resurrected from the dead.

Apparently, being on the “losing end” the first case of resurrection since Jesus Christ was a risk the prosecutors seemed willing to take.  Sometimes, making a meaningless gesture, such as the “resurrection clause”, can induce a party to enter into an agreement they otherwise would not.

[Ken from Popehat (who gets my hat-tip) takes a different tack, arguing that her insistance on these terms illustrates that she simply isn't competent.]

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?

Fordham Law Symposium – “Against Settlement”: 25 Years Later.

One of the worst things about being 900 miles from my law school alma mater is that I typically cannot attend the excellent events they hold.   Case-in-point:  Against Settlement: Twenty-Five Years Later. The Fordham Law Review has assembled an impressive roster of well-known professionals from the ADR, complex litigation, and public interest communities to discuss the role of settlement and adjudication in civil litigation, including Owen Fiss, the author of the seminal article Against Settlement, Kenneth Feinberg, and Michael Moffit of ADR Prof Blog, as well as distinguished members of the Fordham faculty and family.

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?

Mediation Naysayers Abound Despite Popularity

The Des Moines Register recently reported that “Iowans, like many Americans, have turned increasingly in the last decade to out-of-court solutions such as arbitration and mediation to resolve civil disputes with less cost and hassle.”

I guess I should be praising the people of Iowa for embracing ADR and mediation as a means to unclog their dockets and negotiate mediated solutions that satisfy their needs and interests, but a few naysayers still want to talk about the so-called negative aspects of ADR.  One expert cites ADR as the reason for the “vanishing trial”, which means fewer precedents to answer legal questions and fewer chances for young lawyers to hone trial skills.”

This type of ridiculous argument unfortunately only reinforces the animosity and distrust between ADR and the law that Diane Levin recently discussed.  Really? Does the court need another “who ran the red light?” soft tissue injury case to establish “precedent”?  Does this attorney really think that a party with a unique set of facts and an issue of first impression is not going to pursue the matter to its fullest?  And maybe things are different in Iowa, but here in Georgia, very few young lawyers without an ADA in front of their name try cases anyway.

I join Diane’s call to the legal community.  Mediation is not your enemy.  Mediation is not going to cause a dearth of legal precedent and the end of the adversarial system. Mediation is a way to flex your problem solving muscle, impress your clients, and simply get things done.

Let’s move past this pettiness and find the common ground.

I want my day in court.

Ryan McKeen of A Connecticut Law Blog illustrates one of the common barriers to settlement – a party’s insistence on having their day in court.   I see this very frequently during my Monday sessions with a local small claims court.    One party will put a meaningful offer on the table and despite my best efforts, the other party will say “Let the judge decide.”

What drives this?  Is it the fear of confrontation?   I would expect that for most lay people arguing to a judge would seem daunting.  On the other hand, people have been telling their troubles to complete strangers (bartenders, shrinks, Dr. Phil) since the dawn of man.  Telling a black-robed stranger may seem easier than confronting their own issues and discussing the matter calmly with the person with whom they have the problem.

At some point after hearing those words,  I typically ask people a variation of this question – “The last time you made a big decision in your life (get married, have kids, buy a car, buy a house), did you let a total stranger decide for you?”

It doesn’t always work, but it makes them think.

A Case For Maintaining Mediation Notes?

Back from his aborted summer vacation, Geoff Sharp brings our attention to an interesting article from Australian mediator Michael Creelman.    Mr. Creelman argues that the practice of destroying notes after mediation “could eventually be the downfall of those particular mediators.”

The argument seems to revolve around two situations – the mediator as witness in later proceedings and the mediator as defendant in a malpractice action.

I’m not sure that the former situation presents a compelling argument, at least here in the Great State of Georgia.  Under our rules,the mediator for a court-annexed or court-referred mediation cannot be

subpoenaed or otherwise required to testify concerning a mediation in any subsequent administrative or judicial proceeding.  A neutral’s notes or records are not subject to discovery. Notes and records of a court ADR program are not subject to discovery to the extent that such notes or records pertain to cases and parties ordered or referred by a court to the program.

That would preclude any necessity for maintaining notes.  If they are not subject to discovery, and are not admissible, then why maintain them at all?

It remains to be seen whether this rule would protect the mediator in a strictly private mediation.  If not, then Federal Rule of Evidence 408 may provide some protection for a mediator, as the communications during a mediation can be considered “conduct or statements made in compromise negotiations.”  Further, while there is some ambiguity in the law, the Georgia counterpart to Rule 408, OCGA 24-3-7, states, in part, that “admissions or propositions made with a view to a compromise are not proper evidence.”  Either way, I see no compelling reason to keep my notes, and like Geoff, I make sure to tell my clients that I destroy all notes upon completion of the mediation.

As for the latter situation, the Model Court Mediation Rules for Georgia state that

No neutral in a court-annexed or court-referred program shall be held liable for civil damages for any statement, action, omission or decision made in the course of any ADR process unless that statement, action, omission or decision is 1) grossly negligent and made with malice or 2) is in willful disregard of the safety or property of any party to the ADR process.

Again, there is no such immunity for strictly private mediations; however, I struggle to see any viable theory under which a mediator can be held liable for professional malpractice or negligence.   For starters, what is the legal duty?  And what would be the breach of that duty?  If the parties are represented by counsel, where is the causation?

Frankly, I got into mediation because I am terrible at record keeping.  I am not a pack rat.  I am not good at saving things (it drives my accountant – and my wife – nuts).  I relied on the abilities of my assistants to keep my files straight.  I really like the ability to shred my notes at the end of the mediation.  Personal predilections aside, I still think that the best way to maintain the confidentiality of a mediation is to shred the notes the mediator has taken.

This might present an opportunity to write an article for the State Bar Journal. Maybe I’ll put it on my TO DO list…..

Jeff Krivis’ Excellent New(ish) Blog.

I recently found Mediator Jeff Krivis’s new(ish) blog [Not to be confused with a Jewish blog].   Jeff has been a mediator in Southern California for almost 20 years and is a recognized leader in the field of mediation and negoiation.  I look forward to some great posts on negotiation, mediation and other ADR news.

UK Litigation “Boom” is a Dud?

UK-based website The Lawyer reports that

The number of cases being launched in the High Court has reached a six-year high, but the much-­anticipated litigation boom has yet to take off.

Fiona Walkinshaw, a litigation partner of a London based firm suggests that ADR is the reason.  She states,

Many financial ­institutions will want to stay out of the public arena and opt for alternative means to settle claims.

Ms. Walkinshaw further stated that “it would be difficult to gauge litigation activity with so many ­corporates looking for alternative means of settlement.”

Law Students to Compete in Arbitration Competition

This coming weekend, the National Arbitration Forum and the American Bar Association Law Student Division will be co-sponsoring an Arbitration Competition for nearly 200 law students from around the country. The participants will simulate an arbitration hearing involving a dispute concerning election campaign law.  Regional winners will advance to the National Finals in San Antonio in January 2009.

If you live near one of the regional sites, I would wholeheartedly suggest attending or seeing if they still require volunteer judges.  I enjoyed judged the regional ABA Negotiation Competition last year.