Thursday, October 16, 2008

A bogus mediator?

From the "truth is stranger than fiction department," the Arizona Republic reports that a man who posed as a lawyer and mediator was convicted of 23 counts of theft and one count of fraud.  The story can be found here.  

The individual had been disbarred by the states of Vermont and Maine.  He moved to Arizona, set up an office called "Divorce with Dignity" and apparently held himself out as a mediator and "legal-document preparer".  

It turns out he dated at least one client during that client's divorce proceeding, filed frivolous lawsuits against that client's husband, and seems to have charged clients a lot of money.  One client reported paying the mediator $87,000.00 in one year (must have been a heck of a divorce!).  

Sentencing will take place on November 21.  

This raises a good question.  How do you know that the mediator you have hired is "legitimate?"  I think what got this person in trouble is that he was holding himself out to be an attorney and associated with a law firm when he wasn't.  There are a number of mediator credentialing organizations out there (here's the website for the Texas Mediator Credentialing Association).  But those are voluntary and I know some mediators who do not want to join such an organization simply for cost-based purposes.  So how do you know? 

For those in Texas, I'd offer these suggestions.  The concepts may be applicable in other states as well:
  1. If the person mentions or suggest they are a lawyer, check with the State Bar of Texas, on its website, to see if the person is in good standing.  
  2. Ask if the person has taken the 40 hour mediation course established by the state legislature as part of the Texas Civil Practice & Remedies Code.  This course is not required to call oneself a mediator, but it is required for court-appointed mediations.
  3. Ask in the community--your friends especially--if they used the person.  Try to get a recommendation, in other words.
  4. Google the person's name.  It's amazing what you can find out.
In the end, I suppose it's difficult for us to know whether those we deal with are really who they say they are.  How do we know that the plumber, roofing contractor, minister, accountant, or doctor have the credentials that they claim?  

Verse of the Day

"You quarrel and fight.  You do not have because you do not ask God."

--James 4:2

Wednesday, October 15, 2008

More on Conflict Resolution Day

Here's an excellent article from the Colorado Springs Gazette about Conflict Resolution Day. You can view my earlier blog about CRD here.

Monday, October 13, 2008

Foreclosure mediation

The New York Times featured a Connecticut program that requires lenders and borrowers to sit down and mediate prior to foreclosure. Interestingly, representatives for both borrowers and lenders emphasized that the specialized mediation process is beneficial because lenders have a hard time talking to borrowers and borrowers say that lenders are impossible to contact.

Look for more states to require this type of program. Even if modification of the loan terms isn't possible, resolution may still be possible--lenders and borrowers can reach an agreement on "short sales" that will save the lender future foreclosure costs and save the borrower the hassle and expense of fighting the lender.

The cost of workplace conflict

Our good friends across the pond just released a report showing that the

"average British employee is spending more than two hours a week dealing with conflict. This adds up to the loss of more than 370 million working days a year, costing UK employers more than 24 billion pounds."

While heavy caseloads and stress were responsible for about one-third of workplace conflict, personality clashes and warring egos were responsible for almost half of workplace conflict.

Do you think that workplace conflict will increase in these economic times? With speculation (or not) of layoffs, lack of credit, financial institutions failing, and severe fluctuations in the stock market, will we see higher incidents of workplace conflict?

Mediation tactics

I just came back from a fascinating luncheon presentation by the Dallas Bar Association's ADR Committee. The luncheon was entitled "Mediation Issues & Tactics From the Plaintiff, Defense, and Mediator Perspectives". While this was a public discussion, I am not going to name the panelists' names or specifically identify their comments.

The panel consisted of an attorney who practiced plaintiff's work, an attorney (and mediator) who practiced defense work, and a full-time mediator. It was surprising to me to see the divergence of views in how to present your case at a mediation with the hottest topic being whether to have an opening joint session.

One of the attorneys listed his top ten items for a mediation. They are, in abbreviated form:
  1. Mediate as soon as possible.
  2. Always send a packet of information to the mediator. Consider meeting with the mediator before the mediation.
  3. Have an opening session and hope that both sides will lay out their case. (This speaker advocated laying your case out because everyone will know the strengths and weaknesses of the cases).
  4. Get to realistic offers and counters quickly.
  5. Listen to the mediator.
  6. Make sure the other side has adequate authority to settle the case.
  7. Bring a form of a settlement agreement with you.
  8. Talk with the other side prior to the mediation to see if they are serious about settling the case.
  9. The mediator needs to work both sides; don't be a mouthpiece merely exchanging offers.
  10. Bring someone other than the accused wrong-maker to the mediation--you will need a "clear head" to negotiate (this applies in commercial-type cases).

The other attorney raised two points:

  1. Evaluate how much you want to tell the other side in the joint session. You can describe your entire trial strategy in opening session, which this speaker thought was a bad idea.
  2. Don't have joint sessions. They are bad because they increase the emotions in the room, it results in finger-pointing, and he stays away from them.

The mediator's points:

  1. Joint sessions are critical to the success of the process. Mediation time can be reduced by having a joint session, being emotional is part of the process (but one that attorneys don't like because they are no longer in control), but the neutral facilitator's role is to allow folks to vent and get emotional. Then, they can get realistic.
  2. Mediation ought to be the "day in court" for the parties. The mediator sees more and more mediations where the parties don't get to talk and so they don't get satisfaction out of the process. Along these lines, the mediator encouraged parties to provide background information prior to the mediation so the mediator can be prepared.
  3. There's too much mediation, in terms of multiple mediations in a case as well as too many half-day mediations. Lawyers have come to see the mediation process as a mechanical process and believe most disputes ought to be resolved in three to four hours. That's just not the case.

An interesting point that was raised is the fairness of the joint session. Is the joint session "fair" when one party reveals its theory of the case and the evidence to support its theory but the other side does not? That's not a fair use of the joint session, which could leave the parties unsatisfied. The counter is that during the mediation the other side's theory and facts will come out--it will be later in the process, but it will come out.

The mediator also promoted the idea of client-to-client meetings early on in the mediation, even before proposals are made. Why go through the hours of agony if the clients (and it is their case, after all) can sit down and resolve the situation themselves quickly?

What do you think? Should we ditch or encourage joint sessions? Should we encourage clients to talk outside the presence of counsel (but with the mediator) early at the mediation?