Friday, November 7, 2008

A sham arbitration?

I really enjoy Dan Slater's Wall Street Journal Law Blog. He recently wrote about a "sham arbitration" involving American Apparel and a former employee. AA agreed to pay the former employee 1.3 million dollars to settle a sexual harassment claim. As part of the settlement, the parties agreed to participate in a arbitration with a predetermined outcome so that AA could say there were no sexual advances.


The arbitration did not go forward, thankfully.

You can find the opinion from the California appellate court discussing this arrangement here.

Email negotiation

I'm old enough to remember my parents buying us a TI-994A back in the day. It was a computer that you hooked into a television, used cassette tapes for programming and backups, and allowed you to play a mean game of Pong.

How far we've come.

More and more people are using email to negotiate. I see that becoming more and more common in the legal community--attorneys will shoot off emails to each other to agree to scheduling deadlines, deposition details, and even settling cases. In my law practice, I've seen emails where folks will discuss the terms of contracts.

But should we negotiate over email? Maybe.

This issue is discussed over at the ADR Prof Blog. The problem with negotiating over email is that folks are more likely to lie in an email than using pencil and paper (and I'd be willing to bet, in person or over the phone). Citing an article in Scientific American, there's something different about email that either allows or encourages folks to lie. Students in a study lied 92% of the time in an email negotiation compared to 64% of the time using pen and paper.

Also, emailers tend to be less formal than when one drafts a letter. Folks are more willing to say whatever is on their mind in an email, while a letter encourages deliberation and thought. Can you say "Exhibit Number 1?"

Email may be a good way to confirm agreements and conversations; but as a negotiation tool, try talking to folks.

Wednesday, November 5, 2008

The perils of an attorney mediator

Can a lawyer enter into an agreement to mediate a divorce settlement, when the parties are not represented by legal counsel, and then prepare the divorce decree and other documents to effectuate an agreed divorce if the mediation results in an agreement?

That's the question posed to the Professional Ethics Committee for the State Bar of Texas.  In Opinion No. 583, the Committee answered "no."

Under the Texas Disciplinary Rules, mediation is not the practice of law, but it does constitute actions as an "adjudicatory official" meaning that the mediator acts as one serving on a tribunal in recommending or resolving of a dispute. 

Adjudicatory officials, or at least lawyers acting as an adjudicatory official, cannot agree to mediate a divorce and prepare documents for the parties, because such acts would violate Rule 1.11(b) of the Texas Disciplinary Rules of Professional Conduct, according to the Committee.  Rule 1.11(b) prohibits a lawyer who is an adjudicatory official from negotiating for employment with any person who is involved as a party or as an attorney for a party when the official is participating personally and substantially.

Furthermore, the Committee stated that if a lawyer is a mediator and chooses to act as a lawyer with respect to a particular divorce, the lawyer may represent only one of the two parties in preparing documents to implement an agreement for divorce.  This is because divorce is a litigation proceeding and in preparing documents for both husband and wife, the provision of legal services cannot be had because the lawyer cannot function as an intermediary for the parties (in violation of Rule 1.07 and 1.06 (a lawyer shall not represent opposing parties to the same litigation)).  

I find this opinion troubling, frankly.  I understand that an attorney in the role of mediator and attorney could have "undue influence" on the parties who are before the attorney/mediator in trying to effect a settlement for the earning of a fee, but there are many instances where divorcing couples do not have the financial means to pay for two sets of lawyers and a mediator, or where the issues are so limited that the economics of the case don't make sense to have two sets of lawyers and a mediator.  In those instances, it seems to me, with all due respect to the Committee, that an attorney/mediator would provide an enormous benefit to the parties, the judicial system, and the economics of the entire situation of the mediator/attorney can assist the couple in developing a settlement agreement and then providing legal assistance to the parties in drafting an agreed petition for divorce and an agreed decree of divorce.  It also seems to me that allowing attorneys to mediate the case and assist the couple with filing appropriate papers with the court would promote the good public policy of resolving disputes amicably.  

Until the Committee revisits the issue, or until the Disciplinary Rules are changed, attorneys in Texas are not allowed to serve as "both a mediator between parties in a divorce and as a lawyer to prepare the divorce decree and other necessary documents to effect an agreement resulting from the mediation."