Probate Mediation

I ran across an excellent essay today by Rikk Larsen about mediating the estate case. Rikk suggests that mediation is underused in the estate planning and settlement field. He makes three suggestions to increase the use of mediation in this area:

1) Convince entrenched professionals, the lawyers, financial planners and CPA’s, that mediation is not a threat but a positive team option that can help make their job easier and not diminish their billable hours.

2) Continue to work with probate courts to include mediation as a formal court approved option that judges understand and embrace. Presently only a few courts have formal programs like the one New Hampshire is introducing this year on a statewide basis.

3) Continue general marketing to the public by word of mouth, print articles, other media pieces and professional association support.

What do you think? Are courts, attorneys, and financial planners using mediation in estate settlement procedures?

Health care

Like most folks, I'm interested in the debate on health care that is going on in this country. Being the good neutral, I'm not going to let you know my preferences.

But I got to thinking this morning on the way back from the courthouse: how would I mediate the health care debate?

The health care debate has all of the issues relating to a really sophisticated piece of complex litigation: opinions on all sides from authorities in the field and interesting legal issues (the Wall Street Journal has run pieces discussing the constitutionality--rather, unconstitutionality of the federal government regulating or requiring health care--see WSJ stories here and here and related stories here and here).

If you were appointed to mediate the health care debate, how would you approach the mediation? How would you try to get the parties to "settle" the issue? How would you set up the mediation? How would you help the parties frame the issues?

I'm interested in your thoughts.

Being you

How many times have we heard someone say (or that we've said), "Oh, that's just the way that I am." We usually say that when trying to explain behaviors that are not productive (or some would say annoying).

Marshall Goldsmith, blogging for Harvard Business Publishing, asks the question, "Do You Have an Excessive Need to Be Yourself?" The post can be found here.

Goldsmith's analysis, and questioning that he provided to a CEO, are terrific for mediators and ADR professionals. Part of our goal, in my opinion, is to help lead people from one place to another. This often means candid and uncomfortable conversations. But those conversations are necessary.

So the next time that we say, "Oh, that's just the way that I am," let's ask ourselves not only why are we that way, but also, what effect does our behavior have on other people? What effect do we have on people by focusing on ME instead of THEM?

ADR and the Recession

An interesting article in today's Wall Street Journal got me thinking.

What effect is the recession having on the mediation-arbitration-alternative dispute resolution markets?

The reporting by Paulo Prada and Corey Dade analyzes funding cuts in the Georgia state court system. According to the authors, the court system's funding was cut by almost 15% last year, and future cuts are expected. One state judge is reported to have said that temporary hearings (for family custody cases) are now taking 60 days to reach instead of the usual "few weeks at most."

What does this mean for ADR professionals? I'd suggest it means opportunities.

It seems that we're told from day one in our training, and almost all of us market ourselves and the ADR process as a methodology that is cheaper, more efficient, faster, and more creative than the court system.

Now is our opportunity to prove that what we say in our training and marketing materials is true.

As ADR professionals, don't we have an opportunity--and perhaps an obligation--to assist those who are trying to access the court system to help them resolve their disputes in a less expensive, more efficient, and quicker way instead of waiting for overworked and understaffed courts to reach the case? Why can't we step in early and help folks discuss and structure the temporary orders in family cases? Why can't we help parties who are in the midst of a discovery dispute? Why can't we help the parties to resolve all of conflicts that occur during litigation, instead of just focusing on the final resolution of the entire case?

I'd like to know your thoughts.

Is mediation killing big law firms?

Maybe.

According to this blogger, one of the reasons leading to Heller Ehrman's demise (you can view its website here, which doesn't contain fancy graphics, just the firm news about its bankruptcy filing) is that within a 45 day period in 2007, Heller lost 25% of its litigation work due to settlements.

You don't have to be a managing partner to know that's bad news for a firm's bottom line (unless you are on the plaintiff's side of things and obtain a big settlement in favor of your client).

Settlements are tricky creatures. From a firm perspective, a settlement means that there are no more billable hours. So no more firm revenue. From a client perspective, settlement means certainty as to its future budget, a conclusion to uncertain outcome in court, and creativity in how the case is resolved.

This inherent, well, conflict, between the firm's bottom-line financial pressure and the client's goals has always been something that confronts me.

With the proliferation of alternative dispute resolution, and fewer and fewer cases going to trial, will we see a demise of big firms--because too many settlements in a quarter can zap the firm's cash flow?

Mediating dog bark cases

Ever heard your neighbor's dog bark. And bark. And bark.

Or was it your dog?

Arizona is sending dog bark cases to mediation, according to this article.

Having handled a dog-barking case before, I know that these cases are ripe for mediation and resolution by sitting down with your neighbor, instead of fighting with your neighbor.

Peace.

A court mediator?

The Advertiser-Tribune.com (out of Ohio) writes about a program involving a "court mediator", someone who appears to be working full-time for the court system (here for six judges in four Ohio counties). The mediator's fee is paid through the court's budget, which is supplemented by a mediation fee charged by the court, according to the article.

What would the process look like if courts had full-time mediators on call, paid for by the court system, to help resolve disputes? Would the number of cases that settle increase or remain the same? Would settlement rates vary, depending upon the location of the mediation? Does it matter if the mediator is already at the courthouse, as opposed to a more-traditional method of mediation at the mediator's office?

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."

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?

It's raining mediation

An interesting mediation tidbit from another blogger:

The state of Iowa has a flood mediation program to help consumers and their insurance companies make sure flood claims are being handled fairly. As you may remember, there was significant flooding in Iowa this past summer, resulting in governor declaring 83 of Iowa's 99 counties disaster areas.

Nobel Peace Prize

Congratulations to former Finnish President Martti Ahtisaari on claiming the Nobel Peace Prize. While perhaps not a household name, Ahtissari, a life-long diplomat, has worked to solve international conflict all over the world, including Northern Ireland, Aceh, and Kosovo.

In the article published by DW-World.DE, Ahtissari is quoted as saying that his interest in peace mediation began as a child when his hometown was "seceded" to the former USSR during World War II.

He also noted that "mediation is 'an art' rather than an established practice."

I've seen that in my practice, both as a mediator and as an advocate for a party in mediations. One can read all of the literature about mediation and conflict resolution that they can--and I think they ought to--but the great mediators have "it". The "it" is the combination of savy, personality, temperment, skill, and experience that is rare. And, great mediators really love what they do. Peacemaking is not a job to the great ones; it is a calling.

Copper Mine Mediation

The Sahuarita Sun reports that the US Institute for Environmental Conflict Resolution, in conjunction with a private mediator, will facilitate a working group to analyze thousands of comments on the Rosemont Copper mine proposal.  The goal is to help clarify comments made by citizens for the benefit of the Forest Service.

Got meds?

Is this a legitimate question to ask someone at a mediation?

That's a question tackled by Perry Itkin. Mr. Itkin references an article in the National Law Journal pointing out that, because of the number of Americans taking medications, jury consultants are starting to ask jurors about their medication usage.

Did you take your meds today?

Mr. Itkin notes that the Florida Rules for Mediators provides that, if a party is unable to freely exercise self-determination, a mediator shall cancel or postpone the mediation. The mediator is also to adjourn or terminate the mediation if any party is unwilling to participate meaningfully in the process.

As professional mediators, what role do we have to inquire as to the mental or psychological state of a party? Should we ask if they are on medications? Or if they should be on medications? How, as a neutral, do we evaluate if a party is free to exercise self-determination?

The Association for Conflict Resolution, the American Arbitration Association, and the American Bar Association adopted Model Standards of Conduct for Mediators. Under those model standards:

• "A mediator shall conduct a mediation based on the principle of party self determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise
  self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes." (Standard I. A.)

Standard VI.A.10 states:

• "If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination"

What do you do to make sure that the parties don't have a difficulty comprehending the process, issues, or settlement options, or participating in the mediation when it comes to a party's psychological condition?

A rise in mediations

Whether or not we are in a recession is a debate best left to economists. But most of us feel like there's a slowdown of sorts. What is a business to do when the economy is down, financial pressures are placed on officers and directors, and folks owe money.

Litigate. Or mediate earlier.

Joanne Birtwistle writes in Crain's Manchester Business that companies are doing more these days to chase debts. In addition to litigation increasing, mediation is proving to be popular and companies are using mediation earlier than they normally would.

The reasons for "early mediation" are (1) creditors want to preserve cash; (2) risk reduction; (3) improve cash flow earlier in the process; and (4) the flexibility in reaching decisions, compared to the win/lose outcome in courts.

Peacmaking with religious brokers

A wonderful article in The Economist highlights the role of religious organizations as peacemakers. The article may be found here. Make sure to read the comments section, as well. You should also read the companion article in the Economist about the "discreet charms of the international go-between that can be found here.

Religious institutions may be best suited as peacemakers, according to the article, and it lists several instances in Latin America, Europe, and Africa.

What makes religiously-based peacemakers unique? According to the author,

• Neutrality, impartiality, and the ability to be an outsider acting as a guarantor of an eventual deal;
• Long-term commitment and presence on the ground;
• Contacts with local religious leaders; and
• Moral and spiritual authority.

I've attended a Christian-based mediation training put on by Peacemakers. It was a wonderful session put on by committed men and women. I'd recommend it. I will say that Peacemakers showed me something more than what I've found in my "secular" conflict resolution training--that it pleases God for us to live in peace with each other.

I'm not sure that all of the reasons for religious-based peacemaking are so very different than secular peacemaking. Being committed to the process, to the parties, and having knowledge are certainly common to both groups. What do you think? Are religious-based mediators better equipped to handle conflict than secular mediators?

The "companion" article is a fascinating read, also. It notes that, in the last 15 years, "military victories have resolved only 7.5% of conflicts, while negotiations have prevailed in 92% of cases....The challenge is thus not being a skillful warrior, but a skillful negotiator." Also, it notes that Kofi Annan, acting as a mediator in the Kenyan conflict, chose to have the parties work through another third party (to establish trust and calm) and had meetings at a secret location at a "game park" to avoid the scrutiny and pressures associated with the media. There are several lessons to be learned here: location matters, you need to get away from distractions, and the parties have to trust you. A mediator friend of mine will take the parties (separately) out to lunch at a nice restaurant to discuss the case and negotiations. He says that it's hard to be upset (he uses other, more colorful language) with someone when you are having a nice meal.

Litigation Costs

The Wall Street Journal's Sarah Rubenstein blogs today about a new rule being proposed by the Financial Accounting Standards Board. The proposal requires companies to provide a "best estimate of the maximum possible exposure to loss" when a plaintiff sues the company for unspecified damages.

The thinking behind this rule is that stockholders are entitled to know the risk of owning, and continuing to own, stock in a company.

Many companies who have a lot of experience in large products liability defense cases have corresponded with FASB making the case that this type of litigation cost estimate is, at best, difficult. Here's a copy of the letter.

What's this have to do with dispute resolution?

A lot.

This letter outlines the reasons why litigation is so expensive. Cases may take years to get to trial. Discovery is incredibly expensive. And the ultimate risk is found in a fundamental right in our justice system: the jury. The letter points out that in one Vioxx case, the range in value had a high of $250 million (jury verdict) to a low of $0 (overturned on appeal).

Parties certainly need to conduct some level of discovery to have a grasp of the facts and exposure a particular case provides. But the uncertainties of a verdict (whether one is liable or not) and the amount awarded puts control of one's fate in the hands of twelve folks who may or may not be your "peer." And even if you hit it big at the trial level, there's always the court of appeals that you may get to deal with.

Take control of as many of the risks as you can. Seek a qualified resolution specialist to help you manage the inherent risks in litigation.

Yo, you talkin to me?

Apparently not in New York.  Newsday.com's Michael Rothfeld and Melanie Lefkowitz report that family law mediation in New York lags behind other states.  The article quotes Hofstra University law professor Andrew Schepard as noting that the New York system places importance on "digging up dirt" on the soon-to-be ex-spouse instead of putting the child's needs first.  

Surprisingly (to me), New York judges do not have the power to order couples into mediation.

Despite these difficulties, the article goes on to explain that pilot programs exist in several counties.  The early findings are that cases are being resolved in a few months instead of several years, children are not used as "weapons in negotiations", and divorces are less acrimonious.  

Confidentiality in mediation

The California Supreme Court ruled that statements made during mediation cannot be used to bind a party to a settlement agreement she did not sign, according to the Metropolitan News-Enterprise.  

The facts are complicated (at least to me):

• Claim filed against a doctor.
• Doctor provided consent to her malpractice insurer to settle the case for no more than $150,000.
• Malpractice carrier, its attorney, and Plaintiffs' attorney agreed to $125,000.00 settlement.
• Doctor, learning of the settlement, reportedly said "Good, because I am revoking my consent."
• Mediator (a judge), plaintiffs, and their counsel signed the settlement agreement.  Neither doctor nor malpractice carrier signed.
• Parties battled for 15 months.  Doctor's attorney turned over to plaintiffs a copy of the consent form signed by the Doctor.

The California Supreme Court, overturning the decision of both the trial court and the court of appeals, ruled that there was no estoppel nor implied waiver exception to mediation confidentiality.  

According to the article, under California law (section 1122 of the Evidence Code) provides that a settlement agreement or other writing prepared as part of the mediation may be disclosed only if "all persons...who participate in the mediation expressly agreed in writing, or orally, in accordance with Section 1118, to disclosure."  Section 1118 permits disclosure of an oral settlement if the agreement is made in the presence of the mediator, agree that the agreement should be binding, and that it is reduced to writing and signed within 72 hours.  Section 1123 allows disclosure of a written agreement only if the parties agree or for the purposes of showing fraud, duress, or illegality.

Qualifications for Mediators

Law.com reports that New York established guidelines for court-appointed mediators.  The qualifications include:

• 24 hours of basic mediation training;
• 16 hours of additional training in specific mediation techniques that are case-specific;
• Five years of legal practice or service as a judge;
• "Substantial experience" in the types of cases referred to the mediator; and
• Continuing legal education of six hours every two years.

What do you think of this program?  Too much training?  Not enough?  What about the "background" characteristics for a court-appointment--do they make sense?  Let me know.

Monty Python Mediation

A terrific tidbit in the Telegraph.  Monty Python's John Cleese (also in a Fish Called Wanda, Fawlty Towers,  a couple of James Bond flicks, and many other entertaining programs) recently commented on his divorce to American psychotherapist Alyce Fay Eichelberger.  

Cleese claims that he will pay his ex 900,000 pounds a year.  A veteran of divorce mediations (Cleese has gone through two), he suggested they mediate this divorce.  Ms. Eichelberger refused.  He even suggested that she pick his lawyer and he pick hers--what a novel idea!  But "she wasn't interested" according to the article.