If I had to list one thing that is a must for mediation, it would be “preparation.” I raise this again for the umpteenth time because I just conducted another mediation in which the lack of preparation by the plaintiff attorney controlled  both the process and  the outcome.

            Plaintiff claimed she was laid off from her blue collar job due to a work injury disability. She had previously been injured on the job and claimed that while still injured, her supervisor required her to perform tasks that she was unable to do because of her injury; when she could not do them, she was laid off. As part of this claim, plaintiff alleged that although she was cleared by her doctor to return to work, it was with restrictions. Allegedly, her supervisor ignored the restrictions and made her perform tasks as though she were 100% well.

            Defendant contended that the plaintiff was hired solely to work on a particular project and when the project was almost completed, the plaintiff, along with several others, was laid off.

            Although trial is set to begin within the next five months, plaintiff’s counsel has conducted no discovery and so, while defendant’s counsel told plaintiff’s counsel of its position early on in the case, plaintiff’s counsel has done nothing to investigate defendant’s claim or to determine its veracity.

            So, the parties came to mediation. Naturally, plaintiff told me what occurred from her perspective. I then held a separate session with the defendant and her counsel who told me what occurred from the defendant’s perspective asking me to share that perspective with plaintiff and her counsel. Instead, I suggested that counsel for both parties and I meet alone which we did. Defense counsel shared her information with plaintiff’s counsel who then requested to see documentation. For the next 2-3 hours, defendant had documents faxed to the mediation to be shown to plaintiff’s counsel. Then, counsel met together to discuss the documents; then plaintiff’s counsel met with her client to discuss them and then met with defense counsel once again with additional questions and requests for documentation. Defense counsel then met with her client to obtain the requested information and documents. Defendant then requested her office to fax more documents which her office did and so on and so on.

            Finally, after about three hours of conducting “discovery,” plaintiff’s counsel realized that the “facts” were far different than what her client  had told her, to the extent that the value of the case was far less than originally envisioned. However, plaintiff’s counsel realized that her client  also had to process this sudden turn of events as well as the “truth” that her case has minimal value. So, after defense counsel responded to plaintiff’s monetary demand by offering far, far less money than anticipated, plaintiff’s counsel suggested that the mediation be continued to allow her client to process and come to grips with all of the “new” information. So, after more than 4 hours, the mediation session ended with a second session to be scheduled in the next week or so.

            However, complicating this process is the fact that defendant intends to file a motion for summary judgment and must do so within the next two weeks. Unfortunately, the calendars of the parties are such that no one is available until after the date by which the motion must be filed.

            Will defendant be inclined to settle after it has spent the time and money in preparing and filing the summary judgment motion? I do not know, but no doubt, defendant’s incentive to settle will be a lot less.

            So while plaintiff’s counsel now realizes that the case needs to be settled, if a second session is held, most probably, the defendant will be inclined to pay even less to settle than it was willing to pay at the mediation (given the attorney’s fees and costs it has just expended on the motion for summary judgment).

            Needless to say, plaintiff’s dilemma could have been completely avoided with preparation. Had plaintiff’s counsel conducted the necessary investigation/discovery prior to attending the mediation, the mediation process would have flowed smoothly rather than turning into a “discovery” or “information gathering” session, and the matter probably would have settled. But now, it is quite a quagmire.

            Preparation, preparation, preparation,. . . I cannot say it often enough! It will make or break both a mediation and a settlement!

            . . .Just something to think about.

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          The Los Angeles County Superior Court is the largest county court system in the United States. Unlike many other jurisdictions throughout the country, it provides free mediation services. The mediator provides preparation time plus three hours of actual session time for free. Thereafter, if the parties wish to continue, they may do so but must pay the mediator her market rate.

            For many years, I have been a member of the court’s “free” panel as a way to give back to the legal profession. And, for the same number of years, I have debated with myself, whether I should remain on the panel. While I am quite willing to provide my services for free to those who truly cannot afford to pay for mediation, this has rarely been the case; more often, my idealistic motivation for being on this panel has been abused and misused by litigants and counsel who earn more than I do!

            Last week’s mediation was another example. The mediation was set for 10:00 a.m. At 9:00 a.m., plaintiff’s counsel called to advise her client did not want to appear and asked if we could reschedule. However, both defense counsel and the defendant were already on their way to my office and they said “no.” So, plaintiff’s counsel appeared without her client. Counsel did not even offer to make plaintiff available by telephone. However, counsel told us that she knew what were the plaintiff’s parameters in settling, had “authority” to settle, and so would negotiate to see if the matter could be resolved.

            As both defendant and her counsel were here already, they decided to give it a try rather than simply walk out. So, we started negotiating.

            As you might guess, as of the end of the third and final “free” hour,  the matter had not settled. (Naturally, plaintiff’s counsel did not want to continue on).  Why – the plaintiff was not here. Throughout the mediation, the plaintiff’s attorney had to keep calling the plaintiff to discuss the latest proposed offer and to obtain authority and/or wait for plaintiff to call back. Despite counsel’s comment that she had “authority” to settle, in truth, she did not have “full and complete” authority! As always happens at mediation – proposals different from those envisioned beforehand are made, necessitating a call to the client and a lot of waiting for the “callback” from the client. Not an ideal situation!

            Why did this situation occur? Because it was “free.” I learned a long time ago that when folks do not have to pay for something, they do not become invested in it and thus do not take it seriously. As they have put no money into the deal – they believe they have lost nothing by sloughing off the appointment: if they had to pay a cancellation fee, they would think twice about not showing up. They do not see other people’s time – especially the mediator’s – as a valuable commodity, and so they make light of it!

            While granted – no one forces me to be on this panel, I have stayed on it for those one or two litigants who are truly improvised and cannot afford to pay. But so far, out of the 200 or so “free” mediations I have conducted, I have run into such litigants less than 10 times. Most of my experiences, unfortunately, have been like last week’s in which one or more parties do not take it seriously.

            So. . . the morals of the story: (1)  mediation can be extremely frustrating when one or more parties do not show up at a mediation and makes it difficult to resolve the matter; and (2) I am going to seriously re-think my commitment to “give back to the legal profession” via “pro bono” mediations for court!

            . . .Just something to think about.  

  Post Script: I learned the next day, that the matter, indeed, settled, later that afternoon on the same terms as plaintiff’s counsel had declined as she walked out of my office at the end of three hours. So, while my services helped plaintiff settle the case, for plaintiff to pay for even the additional half-hour of time it would have taken to settle this matter was too much to ask!

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“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights,  that among these are Life, Liberty and the Pursuit of Happiness. . . .” (Declaration of Independence, July 4, 1776).

With these words, one of the biggest disputes in history began: the thirteen colonies in far away America severed their relationship with George III and Great Britain by declaring their independence. The date: July 4, 1776.

In truth, by the time this Declaration of Independence was adopted, the relationship between the thirteen colonies and George III had deteriorated beyond repair and to an all time low. In fact, the first battle of the Revolutionary War occurred at Lexington and Concord in April 1775 or more than a year before the colonies adopted this Declaration of Independence.

Yet, prior to April 1775, many of the colonists hoped for reconciliation with  King George III and Great Britain. As we all learned in grade school, the relationship between Great Britain and the thirteen colonies began deteriorating many years before when as result of the Seven Years’ War in 1763, Great Britain found itself deep in debt and so needed to generate revenue quickly. To do so, it imposed a series of tax revenue measures on the thirteen colonies. While Great Britain believed these taxes to be fair as the colonies should pay their way, the colonies had a contrary view ( as is typical in any dispute) believing they should not be taxed by an entity (i.e., Parliament) in which they were not represented. Underlying this “taxation” dispute was the true one:  Should Parliament, situated thousands of miles away, really   have any authority and control over the thirteen colonies and their inhabitants? Remember- this is long before telephones, e mail and other means of instant communication existed; rather, communication took weeks and months – by horse and ship! (As is typical in a dispute, often the true issue lays hidden.)  Although many colonists were still hoping to reconcile with George III in 1775 even after war had erupted,  by January 1776, it became clear that George III was not inclined to negotiate or to be conciliatory in any way.

(See, United States Declaration of Independence at: http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence)

But, what if a really good peacemaker (aka an ADR professional) had been invited to the table to mediate the dispute between the thirteen colonies and George III before the relationship was beyond repair, let’s say in 1763 when the dispute first arose?   Could he ( I doubt there were any women neutrals at the time.) have worked his magic and gotten George III to see that it was in his best interests to reconcile with the thirteen colonies so that Great Britain would continue to have an incoming  source of revenue? Suppose the mediator could have gotten George III to acknowledge and accept that one of the underlying needs of the thirteen colonies was to be represented in Parliament – to have a voice in their own governance. Would this have been so bad? Would this have been a really terrible concession for George  III to make ? He certainly, did not do a risk analysis or determine how much he had to gain by giving up a little.

If George III was a savvy negotiator, he could have leveraged this value item by requesting something of value in return, perhaps, additional revenues.   In this dispute, did George III lose sight that he was still the sovereign, and so would always have the ultimate vote and ultimate veto power?  Did he, in essence, lose sight of the forest for the trees?  What if, he hadn’t allowed his ego get in the way?

Certainly, if this dispute had been resolved through mediation, the United States would not be here, today and would not be the great nation that it is.  It would not have accomplished all that it has (good and bad) and each of our lives would have been very different. .  . as citizens of the British Empire.

So while my goal as a mediator is to resolve disputes, I must admit that there are some disputes left best unresolved. . . . (Perhaps, it was a good thing that George III was so bullheaded!)

Happy Birthday America!

Happy July 4^th to Everyone!

. . .Just something to think about.

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In my February 19, 2007 blog, I discussed the unconscious assumptions that each of us makes about someone upon meeting him/her for the first time. That is, within seconds of meeting a new person, we “assume” certain things about that person.

I re-visit this topic because it hit home with me in a recent mediation. To set the stage, I am mentoring a mediation student, Liz, who, as part of her training, sits in on my mediations.

The other day I conducted a mediation. The plaintiff was seemingly very shy. When I asked her to tell me what the dispute was about, she deferred to her attorney, requesting that she (the attorney)  present the issues. When I asked plaintiff a question, she said as little as possible. Although I tried to engage her in pleasantries, she would not participate.

Consequently, I mistook her shyness for lack of experience, and I assumed that she was neither sophisticated nor worldly wise.

The mediation proceeded. Even in separate sessions, plaintiff had very little to say in my presence. We eventually settled the matter.

Because it was lunchtime, plaintiff had gotten herself something to eat and had brought it back to the conference room to eat it. After the settlement agreement was signed and her counsel left, plaintiff remained to finish her lunch.

At this point, my mentored student, Liz, sat down with plaintiff just to chat with her. What she learned was that plaintiff was highly educated, highly intelligent, foreign born, and married to a foreigner of a different nationality. Further, Liz learned that; plaintiff has so little faith in the United States education system that she is sending her children abroad to be educated; she teaches a foreign language in the local public school system; and she is just a few units shy of obtaining her master’s degree. Liz also learned that plaintiff’s hesitancy to speak during the mediation was due to her unfamiliarity with the legal process in general, with the mediation process in particular, and the somewhat formal office setting of the mediation. Liz also opined that (1) she may have deferred to her attorney to speak based on the legal shows she may have seen on television; and (2) there may have been some cultural mores at work as she was born elsewhere!

In short, my assumption that she was unsophisticated was totally wrong. What I took for shyness was hesitancy due to situational unfamiliarity.

After the mediation, I discussed this notion of “assumptions” with Liz. In response, she told me about Hedley Scales. When Liz was working in clinical psychology in Chicago, she stepped over a homeless man every day in the street on her way to work. (She had gotten a job as a psychologist and had to work with “clients.”) Lo and behold, her first client was Hedley Scales, the homeless man she had stepped over many times in the street. She listened to his story: he was an extremely intelligent person who had owned a well renowned pharmacy on the west side of Chicago. Those in  the community revered him and always came to him for his compounded medicines. He had been well respected. Further, he had served in the U.S. Army and had been recruited to serve in intelligence during the Korean war. He had been taken prisoner and tortured. He bore the scars of cigarette burns on his arms as proof of the torture. Mr. Scales had an indelible memory and was brilliant.

Unfortunately, the ravages of war emotionally debilitated him: he turned to alcohol and became an alcoholic. Slowly, he lost everything – to the point that he became a homeless man that Liz stepped over every day on her way to work.

Everyone has a story to tell. . . . We cannot even begin to know what it is simply by looking at a person and “assuming” their story. There is so much more to each of us than meets the eye. . . ! In our own way, we are each a Hedley Scales.

. . . Just something to think about!

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Every week I write this blog, discussing mostly cases in court or published decisions. Such emphasis may give the impression that what I write about does not involve or apply to everyday events. Oh, but it does – very much so.

Case in point. In 1991, my husband and I moved to our present house. Being an exercise nut, I joined the local health club, which I will call “The Gym”. The annual dues were reasonable. Year in and year out, I paid my dues, even as they increased based on the cost of living index. But over the last few years, I have not really been going to The Gym; I get my exercise by walking my dog for 4 – 5 miles a few times a week and using my stationary bike on the other days. But, I kept sending in my annual dues (increasing each year) on the rationale that the rate was too low to pass up. (This is, if I quit and rejoined later, the rate would be much higher), and it had a pool which I sometimes used when swimming became the only exercise available to me due to injury (even though I dislike indoor pools!)

So, this past April, I received my renewal notice and promptly sent in my check. By doing so early, I was to be given two extra “free” months.

About six weeks later – in late May, I received a phone call from “Jane”, part of The Gym’s sales staff, asking if I was going to renew. I told Jane that I had sent the check in, in mid-April, giving her the check number and date. Jane said The Gym had not received it. I suggested she make inquiry again in the corporate office because in the past, The Gym had been slow in processing my payment. I told her that I would not be surprised if it was “lost” somewhere in the corporate office as I used The Gym’s self-addressed return envelope, placed a stamp  and a return address on it, and it has neither been returned to me nor negotiated. (I checked with my bank). Jane asked me if I wanted to put a “stop payment” on the check and write a new one. I told her that I really did not want to bear the $30.00 expense of a stop payment as that would mean, in effect, my renewal would increase by $30.00. I asked Jane if The Gym would bear the expense so that I could write another check for $30.00 less. Jane advised me that normally The Gym does not agree to such things, but she would ask.

The next day Jane called me to advise that she had asked the vice-president of sales who said “no”. Jane asked me if I wanted to put the renewal on my credit card. I said “no”; this fortuitous event made me stop and think about whether I really wanted to renew when I have not been using The Gym more than 3-4 times a year for the last few years. Upon reflection, I wasn’t inclined to renew. Jane said she would call me in a few days to see if I changed my mind.

A few days later, Jane called and told me that The Gym still had not located my check. I mentioned that while I had been a member for nineteen (19) years, I was not inclined to renew as I had not been using it that much. I stated that if The Gym found the check, that was fine, but if not, that was fine, too! (I was ambivalent).

When I hung up, I mentioned the call to my husband who asked if I told Jane that The Gym’s lack of loyalty to me really bothered me. I said “no, but you can tell her” and gave him the telephone and the number. He called Jane and told her how surprised he was that The Gym would not underwrite a $30.00 stop payment fee for a 19 year member and what a poor business decision it was.

And he is right. In their book, Beyond Reason, Roger Fisher and Daniel Shapiro (Penguin Books 2005) point out that all negotiations involve emotions and fall into one or more of five core concerns: Appreciation, Affiliation, Autonomy, Status and Fulfilling a Role.

By being a member of The Gym for nineteen (19) years, I have shown loyalty and appreciation to that organization. As Fisher and Shapiro note, “everyone wants to be appreciated.” (Id. at 26). I certainly did not feel any reciprocal loyalty or appreciation when The Gym refused to underwrite the $30.00 stop payment fee on my check but, instead, in a very cold and business like fashion, asked if I wanted to put the full amount on my credit card, leaving it to me to pay the extra $30.00.

In my conversations with Jane, she certainly did nothing to build affiliation with me, that is, attempt to work with me to find a mutually satisfying outcome. Rather, she just wanted my money for the twentieth (20^th) year.

And most importantly, Jane did nothing to acknowledge my status as a member of nineteen (19) years. As my husband pointed out, even the airlines do better. . . according  status – by way of certain privileges – to its loyal customers (aka frequent fliers)!

About an hour later, the phone rang.  It was Jane. Even though it was a Sunday of a holiday weekend, she “spoke” with the vice president of sales who now suddenly agreed to underwrite the $30.00 stop payment charge. I thanked her and gave her a credit card number as Sunday was the last day to renew.

I suspect my husband’s bluntness and directness provided her with an “ah-hah” moment. Perhaps, The Gym’s sales staff should be taught that good business is all about relationships ➔ appreciation, affiliation, autonomy, status and fulfilling a role.

. . . Just something to think about!

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