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?

Norwegian Copyright ADR

Norway's Consumer Council is recommending that ADR be introduced in copyright litigation so that parties can meaningfully settle cases instead of "being forced into settlement arrangements simply because they could not afford to defend legal action brought by copyright holders."

What an interesting concept--that lawsuits can be so expensive that a party feels forced into settlement simply because it can't afford the fight.

Perhaps an advantage of alternative dispute resolution methods is that it helps to level the playing field, in that the parties do not have the expense of a trial?

My experience is that the most expensive portion of litigation is the pre-trial work: getting the defendant served, discovery, and dispositive motions. After that, the trial preparation is certainly expensive, but I wonder how many people would willingly sit down pre-discovery and try to negotiate a settlement?

Verse of the day

Above all, clothe yourselves with love, which binds everything together in perfect harmony. And let the peace of Christ rule in your hearts, to which indeed you were called in the one body. And be thankful. Let the word of Christ dwell in you richly; teach and admonish one another in all wisdom; and with gratitude in your hearts sing psalms, hymns, and spiritual songs to God. And whatever you do, in word or deed, do everything in the name of the Lord Jesus, giving thanks to God the Father through him.

--Colossians 3:14-17

Happy Thanksgiving

I'm sitting on my comfortable couch, watching the Cowboys pummel the Seahawks (24-6 at the beginning of the second half), my stomach full of food. Last night, we had dinner with some long-time family friends and some of their friends and relatives. Life is good.

Having a crazy economy, people are losing jobs, credit is hard to come by, and all the news seems to be bad, so how can life be good? Because it is. We live in a country that values freedom. We live in a country with a history of rebounding. We know that no matter how bleak things look, at some point, things will get back to normal and even get better.

We have a lot to be thankful for.

With all of the bad economic news that has bombarded us for the last several months, when I went to the grocery store this week (several times) I couldn't get in. Al of the parking spaces were taken. That must be a good sign.

I've been to third world countries where folks don't have grocery stores or easy access to things like electricity, clean water, heat, or air conditioning. If you want something to eat, you better have planted something correctly some time ago so that you could eat it today.

We have a lot to be thankful for.

I've been places where the government watches every movement you take, and where roads are full of thugs and gangs that will kill you for no reason.

We have a lot to be thankful for.

I hope and I pray that at some point today you reflected on all that you have to be thankful for. Maybe it's not your retirement plan. Maybe it's not your job. Maybe it's not the amount of money you have available to spend for Christmas gifts this year. We have a lot to be thankful for.

May you all have a very happy Thanksgiving, and may we take more time each day, not just on the fourth Thursday of each November, to stop, reflect, and think about all the people and things for which we should be thankful.

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.

Amazing.

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.

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."