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Get it in writing, whatever “it” is!

Occasionally in mediation, a resolution will be proposed that both parties agree with, but one party can’t commit to at the time of the mediation session.  This often occurs where a defendant has less financial authority than the proposed settlement amount and needs to go back to a superior for an additional amount or where a plaintiff is awaiting the outcome of medical or other evaluation, which hasn’t come in prior to the mediation.  For whatever reason, the parties have reached what appears to be a good resolution in principal, but it will take a little more time to “seal the deal”.

A mistake that counsel often make in this situation is refusing to put anything in writing unless all parties are similarly bound by it.  There are a number of reasons to reconsider this position.

First, despite the hard work of their counsel and their agreement and understanding at the mediation that the proposed resolution is acceptable, and despite the rules of confidentiality, most parties leave a mediation and immediately discuss it with friends and/or family members who weren’t present and don’t understand the process through which the resolution was reached. Frequently, those who engage in these kinds of post-mediation discussions develop “buyer’s remorse” and question the proposed resolution.  Under this circumstance, if they are not bound to it, it can take a great deal of work to get the settlement back “on track,” even though it may be the best result under the circumstances.  It is very helpful to these parties (usually, plaintiffs and private party defendants) when facing pressures from external sources to be able to tell themselves and others that “it’s done.”  It is important for them to feel that they have made their final decision, and that the resolution is out of their hands.

Additionally, it is of great value to get the written commitment of the party unable to finalize the resolution, that they will take specific, enumerated steps to do so, within a specific time period, including a statement that they will recommend the proposal as the appropriate resolution and will use their “best efforts” to see it approved.

Another valuable effect of this kind of writing at the end of an incomplete mediation, is that it always seems to be far easier to get a financial commitment beyond the present authority or evaluation of a defendant, if it is clear that their taking that step will guarantee final resolution.

While the argument can certainly be made that this kind of agreement may be illusory, it seems to provide some kind of moral, if not legal, obligation on the parties, to bring the matter to resolution on the proposed terms.  If the matter does not conclude on the proposed terms, the momentum of the mediation is not lost and the parties can more easily return to discussions without losing face or know that they have done all they can to resolve the matter short of trial and feel more comfortable in moving forward to that end.

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In the expert driven case, that case in which the decision made by the trier of fact is likely to be based on the testimony of experts, as much or more than that of the parties or other witnesses involved, it may be of significant benefit to have a mediation day focused on your experts only.

This is not a day for the squeamish, but one to get it all out on the table, and is most practical where all parties truly want to resolve the dispute or narrow the issues before trial.   In most cases, this usually won’t be able to happen until trial is imminent, when discovery is complete, expert designations have been made, expert evaluations have been completed and depositions, if any, have been taken.

The intent of this session is to bring the experts together to see what they can agree on and reach resolution on those issues prior to trial.  This is particularly valuable where you are involved in a case with highly complex issues that could confuse a jury or will take significant time at trial, resulting in significant expense.  When counsel goes to the effort and expense of using experts in mediation, it is a solid indication that the case is being taken seriously, and often will result in full resolution.  If you must go to trial, the simpler and cleaner the case is when it gets there, the more likely you are to end up with a fair result.

Consider gathering the experts together and mediating the strengths and weaknesses of their positions just as you would mediate the strengths and weaknesses of the positions of the party litigants.

 

Last Friday I was at a CLE at the Alluvian in Greenwood and one of the speakers, Professor Debbie Bell of the Ole Miss Law School raised the question:  Is removing information from Facebook or other social media spoilation of evidence?

Since this followed on the heels of the “going viral” incident that I experienced in a mediation last week, I thought I’d follow up and here is what I found in a short (5 minute or so) search:

http://www.jetlaw.org/?p=9624  a link to an article in Vanderbilt’s Journal of Entertainment and Technology Law about a very noteworthy case from Virginia:  Lester v. Allied Concrete Co., No. CL 08-150 (Va. Cir. Ct. Oct 21, 2011)

http://www.jdsupra.com/post/documentViewer.aspx?fid=52718076-2e7f-4016-8caf-6e0d9dd6fa4e  an article by a member of the firm Fraser Milner Casgrain, a Canadian business litigation firm

http://www.metrocorpcounsel.com/articles/18347/facebook-page-worth-your-job-e-discovery-and-spoliation-age-social-media an article by the Metropolitan Corporate Counsel (Stradley Ronon Stevens & Young, LLP)

The moral to the story is that social media evidence is a type of electronic evidence and different courts are weighing in on the issue in a variety of ways.  We simply need to pay attention for reasons of discovery and/or the tort of spoilation.

Do you speak the same language?

Mississippi has a population of about 3 million people.  The Hispanic portion of this population is reportedly 3% or 90,000 — but we all know that there are lots more Hispanic individuals in Mississippi than a mere 90,000.  Hispanic citizens often do not respond to census because of fear of deportation, harassment or for other reasonable or unreasonable theories about what it might portend to respond.  But because this population is growing, it is very likely that every litigator will face language barriers in their practice, whether with an opposing party, a witness or his own clients.

One of the greatest mistakes counsel or a mediator can make with a client who doesn’t speak the same language is not to use a professional interpreter when interviewing the client and at every critical phase of the litigation process.  Trusting language interpretation to a family member, friend or other non-professional is a risky business, particularly when that same interpreter won’t be the one interpreting at deposition or trial.  Professional interpreters understand the difference between interpretation of language and the interpretation of questions and answers.  If you don’t have someone who understands this difference and is professionally obligated to translate language only, the question you ask may be very different from the one that’s answered.  It could make the difference in your evaluation when accepting or litigating a case.

Most litigators understand and accommodate the need for professional interpreters at trial and in deposition, but for some reason, this is largely overlooked when it comes to mediation.  Mediation is perhaps not only your best opportunity to resolve the matter to your client’s satisfaction, but is also your most valuable opportunity to solidify the partnership and understanding between attorney and client for the future of the litigation if it does not resolve.  If there is a language barrier or you are speaking through someone who is providing loose translation, as almost all non-professional translators do, you will likely loose both opportunities.  Even if your case does settle, you may find out once it’s too late for anything but a malpractice action, that your client did not understand the nuances of the settlement and is not resolved.

If you are faced with an opposing party who has a language issue, you may want to hire your own interpreter for these same critical phases, if the other party is not using a professionally certified interpreter.  It’s imperative that you know if the translation is not being conducted correctly.  You may choose to use that information as you wish, but it’s valuable information to have.

Regardless of the side of the table on which you are seated, if you’ve come to the table, you are already expending your most valuable resource, your time.  Don’t allow it to be wasted by overlooking this simple detail.

 

You learn something new every day!

I had never had a mediation go viral before last week.  I don’t know how carefully you define “confidential” in your Agreement to Mediate, but obviously I didn’t define it carefully (or clearly) enough because shortly after we concluded a 9 hour session, one of the parties was on facebook placing confidential information out there for all the world to see.  Amazing!

Which has led me to believe that I need to add an additional paragraph in my Agreement to Mediate that clearly deals with confidentiality as it applies to social media.  After I finish it, I’ll post it here in case you are interested.

In the mean time, if you are mediating, think about this lesson and try to prevent something as silly as social media from compromising an otherwise effective mediation effort.

In almost every litigated dispute, the credibility, likeability and capability of the parties and their counsel are critical to the success or failure of their case.  Fortunately or unfortunately, as the case may be, each of these items affects the others, and all of these need to be carefully considered and weighed in any settlement evaluation.

Credibility – the quality or power of inspiring belief; [1] whether testimony is worthy of belief, based on competence of the witness and likelihood that it is true. Unless the testimony is contrary to other known facts or is extremely unlikely based on human experience, the test of credibility is purely subjective.[2]

Likeability – having qualities that bring about a favorable regard; [agreeability] pleasing to the mind or senses especially as according well with one’s tastes or needs.[3]

Capability – having attributes (as physical or mental power) required for performance or accomplishment.[4]

Mediation offers the decision-makers the opportunity to get to know the other party and his counsel through group discussion.  Frequently, because counsel tend to conduct most discovery independent of their clients, mediation is often the first time that the parties and/or decision makers actually meet each other in the litigation setting.   Although there may have been a 6-hour deposition, which the decision-maker has read cover to cover, it is no substitute for personally listening to and watching each party in a narrative discussion of the issues that form the basis of the claim and defenses.  It is each party’s opportunity to impress upon the other, why a claim or defense is valid.  This is not the time for legal discussion, but human discussion.  Human issues are what your jury will understand the best and give the greatest weight.   This is the opportunity for the decision-makers to personally evaluate the presentation made by the other parties and their counsel and determine if they have what it takes.

Although most mediators provide the opportunity for group discussion at some point in mediation, if not at the outset, far too many parties, counsel and even mediators, allow this opportunity to pass under the mistaken belief that, through discovery and informal discussions among counsel, the parties have seen all they need to see or told all they need to tell.   Don’t underestimate the value of this opportunity.  Group discussion in mediation is often your first and best opportunity to make or form a strong impression of the credibility, likeability and capability issues that will guide the resolution of your case.

 


[1] Merriam-Webster’s Online Dictionary, 10th Edition, http://www.m-w.com/. Last indexed: 15Mar2003.

[2] Law.com Dictionary, http://dictionary.law.com/. Last indexed: 27Jan2003.

[3] Merriam-Webster’s Online Dictionary, 10th Edition, http://www.m-w.com/. Last indexed: 15Mar2003.

[4] Merriam-Webster’s Online Dictionary, 10th Edition, http://www.m-w.com/. Last indexed: 15Mar2003.

 

Although counsel are comfortable in confrontation with each other, it is surprising how many attempt to avoid confrontation between the parties at all costs.   Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe.  It’s about resolving disputes.  Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution for your clients.

In this case, rather than calming down the client, another approach his lawyer could have taken was to allow him to vent, with some basic ground rules, such as limiting abusive language and no physical contact.   In addition, once a plaintiff airs his emotion, it helps to have a response from the defendant.  In this situation, where the defendant is far less emotional, a well thought out and empathetic response to the plaintiff’s emotion may do more to calm a plaintiff and redirect a mediation than any lawyer or mediator is likely to accomplish.  It is often helpful for defense counsel to speak with plaintiff’s counsel and their mediator prior to the mediation to try to anticipate some of the plaintiff’s concerns.  This will give defense counsel an opportunity to help his client frame a response to those concerns which, while giving the plaintiff the understanding he may need to diffuse emotion, does not concede liability.

Once the minefield of emotion has been crossed, the mediator can focus on the goals of the parties to determine what resolution is possible.  In the case of our plaintiff who was terminated during his medical leave, it was easily determined that he desperately needed to maintain his medical benefits.  What was less obvious was that he had not ever received an explanation of the facts that led to his termination and that this was critical to the redemption of his self-respect.  For 30 years he had worked hard to support his family and was threatened and embarrassed when he lost that ability.  Once he had worked through the emotion to a point where he could discuss his personal goals, rather than the financial aspects of litigation, the parties were able to work together to craft a true resolution to the dispute.  His position with the company was restored, he received a reinstatement of his benefits, some back pay, and most importantly a lunch was held at the company in his honor, at which he received an award for his years of valued service to the company.

In the case of the young woman who lost her position after her maternity leave, the issues were very different.  Although the restructuring of companies and the resultant loss of specific positions is a legitimate business practice, it is also a frequently abused method of terminating long-standing employees who otherwise are not susceptible to termination.

In cases like this, in addition to the economic issues, there is likely to be an undercurrent of emotion on both sides, particularly where the employer is a smaller company, as each party may feel that they are a “victim” in the dispute.  Plaintiffs see themselves as the aggrieved party and defendants, because they often believe they are involved in the dispute needlessly, feel abused by the plaintiff and the dispute process, particularly when facing the burdens of litigation.

In this case, again it is imperative to diffuse the emotion, but because there is likely to be emotion on both sides, both parties should be prepared beforehand to listen to the other.  Again, a meeting or telephone discussion between the mediator and counsel can prove to be invaluable in setting the stage for effective mediation.  Once both parties had aired their anger and frustrations, discussion of the business situation was possible.  To the plaintiff’s great relief, there was evidence to support the fact that the restructuring of the company had been planned in advance of her maternity leave and had nothing to do with her personally.  It was also explained to her by her prior manager that he had questioned her about returning to work, not because of any ulterior motive, but because his wife had gone through that when she was pregnant and decided not to return.  Rather than malice, his questions were a misunderstood, and perhaps misguided, attempt to make friendly conversation.

Even with the best of clients, the early guidance of a mediator can be invaluable in helping them begin to accept that there may be more than one rational perspective to the situation.  Once this occurred in this case, it was resolved in addition to being settled.

Early mediation in the litigation of employment disputes provides the parties an excellent opportunity to explore resolution and accomplish their true goals through diffusing the emotional and adversary nature of the dispute.

Consider the case in which a man in his mid-50’s sued his former employer after he was terminated for abandonment of his employment.  He had been a loyal and valued employee with this company for over 30 years and had taken a medical leave for some minor surgery.  It was his initial intent to return to work in a week or two, but due to complications during surgery, he was unable to return as scheduled.  In order to determine when to anticipate his return at work, the personnel director contacted his surgeon and primary physician and found that he was released from the surgeon’s care after the first two weeks.  Mistakenly assuming that the release from the surgeon’s care was a general release and that the employee was thus cleared to return to work, and without contacting the employee directly, the company terminated him when he didn’t return at that time.  Angry, confused and suddenly without a stable income, the employee immediately contacted a lawyer and headed into litigation.

In another case, a young woman employed by a large company for 8 years, became pregnant.  Although he had no indication to believe that she intended to stop working, her manager began to question her about whether she’d really come back after her maternity leave.  In doing so, he repeatedly referred to other prior employees who had made the decision not to return to work after having children.  When she returned from her maternity leave, she was not offered her previous position back, but a different position with equal pay and benefits but lesser responsibilities and far less opportunity for advancement.  She refused the position and her employment was thus terminated.

In its defense to her lawsuit for wrongful termination and discrimination, her employer relied upon the fact that during her absence, the company was restructured and her position was absorbed into several others.

Both of these cases went directly into litigation, and came to mediation early in the litigation process.  Both involved a very high degree of emotion and the loss of a stable income during a time of personal uncertainty for the plaintiffs and by the time they came to mediation, both plaintiffs had lost sight of their needs and personal goals in pursuing litigation.

In the case of the plaintiff who had been terminated after his surgery, mediation began shortly after the filing of the litigation, after only a minimal amount of discovery.  Although he came into mediation demanding damages for back wages, loss of benefits, emotional distress in addition to punitive damages, it turned out that money wasn’t the key to resolution for him.  It was just the only resolution that had been presented to him at that point.  At the outset, he was very angry and aggressive with his employer.  His lawyer was trying to keep him calm and telling him that this wasn’t the appropriate behavior for mediation, even removing him from the room at one point to calm him.  It became apparent to the mediator that unless this man was permitted to work through his emotion, resolution would not be possible.

A vital value of early mediation is the ability of the mediator to facilitate a release of emotional turmoil as well as the early identity of those issues which remain viable and important and those which can be stipulated factually in order to streamline the ultimate litigation.  And who knows?  After adequate discovery, a mediation session may be appropriate again.

Let’s pull back and refocus on our plaintiffs next week…

My husband, who has a business and commercial practice and is therefore often doing work with AAA, sent me a link to an article in the Los Angeles Times. This article, published on May 1 and authored by David Lazarus, suggests that as a result of the Dodd-Frank Act, which indicates that the Consumer Financial Protection Bureau is able to “prohibit or impose conditions and limitations on the use of arbitration clauses” if it determines that restricting such provisions “is in the public interest and for the protection of consumers.”

Does the Act trump recent Supreme Court decisions? Lazarus asks.  This is a wait and see question, I”m sure.  But I just wanted you to know that it’s out there.

Although I mediate and also arbitrate for FINRA, I am often concerned about those who are obligated to arbitrate rather than face a jury of their peers.  It’s my concern about the sub rosa judiciary system that has resulted from a lack of funding and other ills that have caused users of the judicial system to search for a quicker and more economical way to resolve disputes.  As long as the judiciary is funded to 1% or less of the total budget (Mississippi is a good example), the 3rd branch of government will never be able to catch up with the demands of litigants.  This concerns me, and I am sure that it often concerns you.  The judiciary holds the reins protecting society from the excesses of the executive and the legislature.  No wonder the legislature doesn’t want to fund it!

Just food for thought.

Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe.  It’s about resolving disputes.  Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution for your clients.

 

In some cases, settlement itself may be enough, but in most, in addition to the economic or performance related issues, there is an undercurrent of emotion, and both sides often perceive themselves as a “victim” in the dispute.  Plaintiffs are the aggrieved and defendants, because they often believe they are involved in the dispute needlessly, feel abused by the plaintiff and the dispute process, particularly when facing the burdens of litigation.

 

Your clients may wish to avoid confrontation at the outset but may find, as the process continues, that they want to express themselves to other parties.  Make sure your mediator is willing to allow this flexibility and is comfortable handling confrontation.  In a truly meaningful mediation, in addition to providing valuable information to you about the dispute, your mediator will guide your clients safely through confrontation of the conflict to resolution.

–Laurel Kaufer

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