Don’t Mediate that Case??

Sandra Upchurch of the Florida-based mediation practice group Upchurch Watson White & Max discusses an interesting article from Human Resources Leader magazine entitled, “Don’t rush to mediate that employee complaint …” The article makes some interesting points about cases for which a face-to-face negotiation could be detrimental.

Some Link Love – The Strategic Mediator.

Diane Levin recently linked to a new mediation blog – The Strategic Mediator.  Written by the Florida based mediation panel of Upchurch Watson White & Max, it is a welcome addition to my Google Reader.

What, exactly, is a Kumbaya Singing Mediator?

Seriously?  I recently found myself telling someone that “I’m not a mediator that wants everyone to sing ‘Kumbaya’”.  Having never actually sung “Kumbaya,” I realized that I am not sure I know exactly what that means.  I simply picked up on the term from an article that Geoff cited.   I actually had to Google it.

And I learned that Kumbaya is apparently one of the most annoying and repetitive songs since “Row Row Row Your Boat”, so  I can see why you don’t want to be known as a Kumbaya Singing Mediator.  On the other hand, the annoying repetitive nature of the song might be effective at putting your parties in a suggestible trance-like state.

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 missed Lincoln’s Birthday yesterday.

But I love this quote, so I’ll post it today:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850?), p. 81.

It is interesting to see a glimpse into the legal mindset of 150 years ago. Apparently, lawyers in Lincoln’s time were just as fond of taking every matter to court, and there were voices in the wilderness crying “Settle it…….settle it……”

As a litigator, I recognize that sometimes parties must fight for their rights. Sometimes litigation is the last best option. But there are also times when communication, cooperation, and compromise are best employed to resolve a dispute, and the parties need an experienced mediator who understands litigation, can analyze the risks, can help break communication barriers, and can recommend creative solutions.

Is Co-Mediation an Option for You?

While observing mediations to meet the requirements of the Georgia Office of Dispute Resolution, I watched a very interesting employment case with a local mediator I know.  Because she engaged me in the process, we ended up sort of “co-mediating” the case.   I remember at the time thinking that it could be a very effective manner of mediating cases, but wondered whether what type of cases could sustain the $400-500 per hour needed for two mediators.

Arizona attorney-mediator Alona Gottfried recently explored the concept of co-mediation on her blog and concluded that co-mediation

may not cost more if co-mediation in fact results in the mediation being more efficient and less time consuming. Further, if co-mediation is what is needed to resolve the matter, then it is worth the cost.

Something to keep in mind.

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.