What a Strange Mediation This Would Be?

//What a Strange Mediation This Would Be?

On February 19, 2015, CBS published the following story. It is so intriguing that I reprint it in full:

 An unusual lawsuit in Utah is raising eyebrows among some legal and financial experts: A woman is suing herself in a wrongful death case.

Earlier this week, the Utah Court of Appeals ruled that Barbara Bagley could indeed begin legal proceedings against herself. Bagley wants to charge herself with negligence in a 2011 car accident that killed her husband.

She was driving the vehicle in the Nevada desert at the time when she hit a sagebrush and flipped the Range Rover over. Her husband was thrown from the car and later died from his injuries.

Bagley claims she was negligent for not keeping control of her vehicle and for “failing to maintain a proper lookout” while driving.

A state Third District judge dismissed the lawsuit last year, but it was reinstated last week in a unanimous ruling by the Utah Court of Appeals.

Bagley’s attorneys say she is advancing this lawsuit for the benefit of her husband’s estate because creditors will have to be paid before the widow can receive any money as her husband’s only heir.

But other lawyers are looking to once again dismiss the suit, saying if it is allowed to continue, a jury would then be called upon to figure out if Bagley’s negligence caused her own trauma.

“The jury would be asked to determine how much money will fairly compensate Barbara Bagley for the harm she caused herself,” attorneys Peter Christensen and Kathryn Tunacik said in their motion. “The jury will be highly confused — it cannot order a person to compensate herself.”

John Holcomb, professor in the Department of Business Ethics and Legal Studies at the University of Denver’s Daniels College of Business, told CBS MoneyWatch the lawsuit is “quirky and also clever.”

Bagley, he noted, plays multiple roles in this legal drama. She may be the two plaintiffs in the case, as heir and representative of the estate, but she’s also the defendant.

“Bagley as the two plaintiffs is really trying to get Bagley’s insurance carrier to pay for Bagley’s negligence,” Holcomb said. “You can see why several states would see such a suit as unjust, as a victory would allow the plaintiff to be rewarded for her own negligence. That raises an ethical question of unjust reward and lack of deservedness.”

He also observed that the Utah Court of Appeals issued a unanimous decision for the lawsuit to proceed, basing its opinion on state law. But that doesn’t necessarily resolve the bizarre legal wrangling the case presents.

“Yes, the creditors will have first call on any money in the estate,” Holcomb continued, “but they would in any case, so any damages paid would probably mainly benefit Bagley as heir, depending on debts owed by the deceased.”

“Had there been a disinterested or less interested party appointed as representative of the estate, and that party had brought suit,” he said, “there would be fewer questions raised about an unjust lawsuit and one not based purely on the enrichment of Bagley.”



Assuming that this matter could even be mediated (a big assumption!), what would the mediation  look like? This question brings up a lot of ethical issues.

For a guide to ethics, I turned to the ABA Model Standards of Conduct for Mediators. While there are nine standards, I think three of them  bear consideration.

(http://www.americanbar.org/content/dam/aba/migrated/dispute/documents/model_standards_conduct_april2007.authcheckdam.pdf )

The first standard, Standard I, is “Self-Determination”. That is, a mediator shall conduct the mediation “on the principle of self-determination.”  The standard defines this term as the “act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Id.)

Considering that only one party is involved- as both plaintiff and defendant- it is difficult to imagine how each party will make a free and informed choice as to the outcome. It seems to me that there will be an internal   struggle going on within the brain of the plaintiff/defendant (similar to Freud’s Id vs. Ego!) If nothing else, there is a huge conflict of interest.

Another Standard- Standard V- is more troubling. It is “Confidentiality” and requires that a mediator “… maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.”

Imagine how those conversations will go… especially in “separate” sessions (that is, with the plaintiff alone, and then with the defendant alone)?  Typically, in a separate session, I will learn things that without disclosing to the other party,   I will use as a “reality check” with the other party.  I will point out the “bad stuff” to each side. I can only imagine how such a process would work in a mediation in which one party is playing all of the roles!

Another Standard- Standard VI- may pose issues only because of the circumstances of the mediation.   Entitled “Quality of the Process”, it provides that a “… mediator shall conduct a mediation …in a manner that promotes ….presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.”

Again, I can foresee difficulty in complying with this standard.  Are all of the “appropriate“ participants, indeed, present? Can there be “procedural fairness” when all of the parties are, in fact,  one and the same party.  And- it is not clear from the news article whether each “party” has separate counsel.  Will there be party competency by the very fact of the huge conflict of interest existing between plaintiff/defendant and/or counsel?  And… will there be mutual respect?


While mediators around the world have no doubt handled a lot of intriguing matters, this by far, has to be high on the list. It would be  challenging  to say the least!

…. Just something to think about.

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By | 2017-05-13T07:46:10+00:00 March 13th, 2015|Actual Mediations|0 Comments

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1700 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.