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.

Brown Bag Lunch and Learn for Bay Area Lawyers – Mediation Advocacy

The San Francisco Bar Association is holding a brown-bag lunch and learn on March 12, 2009 entitled, Preparing for an Effective Mediation.  It should be interesting.

I am currently working on preparing a similar program that I hope to present here in the Atlanta market this spring.  I may end up shooting myself in the foot (ha ha), but most mediations would be far more efficient if more attorneys learned to prepare as if they were going to trial, rather than scan the file at red lights on the way to the mediation table.

The Importance of Having the “Decider” at Mediation.

No, I’m not actually talking about the decider, George W. Bush, but the ultimate decision maker.

While there is no authoritative definition of “mediation,” I think most would agree that a key to successful mediation is the meaningful participation of the parties.  All too often, I am asked to mediate cases involving businesses or insurers who send only their counsel to mediation.  And all too often, these cases don’t settle.

An adjuster, EVP or C-level officer “available by phone” doesn’t truly engage the other side.  They are not forced to participate in candid discussions about the strengths (and possibly more importantly) the weaknesses of their case.  They cannot look the other side in their eye and assess their credibility or whether they would make a sympathetic witness.  There are an infinite number of things that can occur in a mediation that change a party’s assessment of a case, few of which can be communicated “over the phone.”  Failing to send the ultimate decision maker also sends the not-too-subtle message that “your case really is not that important to us.”

To their credit, most of the attorneys I see in such mediations lament the absence of their corporate representative and do an admirable job without the person with final settlement authority; but it is very difficult to get the decision maker to move from an entrenched position unless they directly and fully participate.