I now know why I traded in the very uncivil world of civil litigation for mediation; it is destructive… and nothing really good comes out of it.
I say this because I just mediated a post settlement dispute that was about to end in court the next morning as an ex parte motion to enforce a settlement agreement before a judge of the Los Angeles Superior Court (who is already overburdened and under staffed); the dispute should never have gotten this far, but did, because counsel’s emotions were solely in control. All civility was out of the window.
Several months ago, I assisted the parties in settling a lemon law case in which the defendant manufacturer agreed to repurchase a used vehicle. As part of the settlement, plaintiff agreed to return the used vehicle in good condition, normal wear and tear excepted. Thus, plaintiff would be responsible to pay for any damage to the vehicle beyond normal wear and tear.
When plaintiff returned the vehicle, the manufacturer claimed there was several hundred dollars’ worth of excess damage and wanted plaintiff to pay the cost of repair. The manufacturer would not deliver the check representing the purchase price to plaintiff until the plaintiff delivered her check representing the repair costs.
Plaintiff disputed the excess damage claiming that the damage was there when she purchased the vehicle- it was used! Evidently, neither side was willing to budge; the matter was at impasse.
To bring the matter to resolution, plaintiff’s counsel gave notice to defense counsel that she would be filing an ex parte motion with the court to have it enforce the settlement. The ex parte was to go forward the next morning. I was copied on that e mail. So, I picked up the telephone to see if I could help the parties avoid court the next morning.
What I heard from each party was less than civil. Neither side trusted the other and were attacking the other’s professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation. Each was disparaging the intelligence, integrity, ethics, morals and behavior of the others. The ad hominem attacks were flying!
Out of desperation for the settlement funds, the plaintiff finally agreed to pay a compromise sum (i.e. less than the full amount sought by the defendant) for the repairs. However, the check from the manufacturer had to be delivered to plaintiff’s counsel that afternoon to avoid the ex parte hearing set for the next morning. Despite this time crunch, as the manufacturer’s check was for the full amount, initially, defense counsel advised that she would deliver the check ONLY after she received a return check from plaintiff’s counsel representing the cost of repairs AND the check cleared. (Did she not care about avoiding court?). Why? She did not trust plaintiff’s counsel whatsoever! As the check representing the cost of repairs was being written by plaintiff’s counsel, I suggested to her that counsel would not risk being disciplined by the state bar and possibly losing her law license over this. Defense counsel reconsidered and agreed to send a messenger that would deliver one check and pick up the other.
What struck me was the hatred and absolute distrust that each attorney had for the other to the point that one would not trust the other to provide a “good” check. These attorneys were no strangers to each other; they had worked on many cases together since the lemon law legal community is a small one. They knew each other.
In July 2009, the State Bar of California created the California Attorney Guidelines of Civility and Professionalism. The second FAQ asks:
Why are California Attorney Guidelines of Civility and Professionalism necessary?
Uncivil or unprofessional conduct not only disserves the individuals involved, it demeans the profession as a whole and our system of justice. The Guidelines promote both the effectiveness and the enjoyment of the practice of law and economical client representation by providing best practices of civility in the practice of law. (page 1 of FAQ’s)
I am very much concerned that due to the complete lack of trust and relationship that these counsel have, each will be ineffective and uneconomical advocates for their respective clients during their next lemon case together.
As a mediator, I learned long ago, that it is all about trust and relationships: It makes the world go around and gets cases settled. Without them, civil litigation (or any dispute for that matter!) will be extremely uncivil, uneconomical and quite ineffective.
… Just something to think about!
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