Saturday, March 23, 2013

Use Caution in Meetings Where Lawyer and Client are not in Agreement

It may surprise you to know that not all clients follow their attorney's advice and not all lawyers anticipate non-cooperation from their clients.  Generally, lawyers don't like surprises.  After years of law school and months of handling a particular lawsuit, usually the lawyers believe they know whether it's in their client's best interest to settle the lawsuit and at approximately what level.  This week, I had one such lawsuit which resulted in a mediator's proposal at the end of the sixth hour at a level which both lawyer's indicated they could agree upon.  To the Plaintiff's lawyer's chagrin, his client did not agree.  This took a good deal of diplomacy and consideration to reach an ultimate resolution.  Afterwards, I remarked to the lawyer that I thought she had performed magic by gaining her client's compliance.  She thought it was my explanation that did "the trick".  The dilemma could have been avoided had the client and the lawyer carefully and realistically evaluated the claim and the expenses and risks of not settling before or at the outset of the mediation.  Instead, I spent about an hour conducting that evaluation.  I wrote out the range of values in the event the Plaintiff won a verdict (Hypothetically $75-$100,000).  Then I wrote out the odds of overcoming a Motion for Summary Judgment.  (Hypothetically 50/50).  In the scenario of a 50/50 loss on a motion for summary judgment, the settlement value became $37,500-$50,000.  But I couldn't stop there.  Even overcoming a Motion for Summary Judgment, the attorney and I agreed that Plaintiff had only a 50/50 chance of winning at trial.  This reduced the settlement value to:  $18,750-$25,000.  After I articulated the costs of going forward, which would be recoverable to Defendant if they became the prevailing party (about $5,000), settling the case at something in the range of $13,750-$20,000 became "reasonable).  When I was able to show the Plaintiff that if he settled, he could also be paid that amount within one week, he understood why his lawyer was recommending he accept my proposal. 
     Occasionally, a mediator has to step in to mediate between a lawyer and his client.  Diplomacy is paramount at that moment.

Sunday, March 17, 2013

The Flip Side of an Apology: Forgiveness

I had the pleasure of hearing Azim Khamisa deliver a Keynote address at the Orange County Mediation Conference yesterday.  His topic was "Forgiveness".  Mr. Khamisa lost his only son at the age of 20 to a random act of gun violence by a 14 year old gang member in San Diego.  Ironically, he had brought his son here to the U.S. to raise his family in the land of opportunity and security.  The pain, I'm sure, was unbearable.  What was most remarkable, though, is that within months, he met up with the perpetrator's grandfather (pictured at the left) and together they initiated a foundation dedicated to teaching youth in America about the risks and consequences--for both victim and perpetrator of a momentary act of violence.  Five years after Tariq's death, Khamisa met his murderer at Folsom Prison.  By that time, Tony was 19 and working towards his GED degree.  Mr. Khamisa looked deeply into the eyes of this young boy, still younger than his own son had been at the time of his death.  He thought he'd see a murderer.  Instead, he saw a tortured young man who expressed his regret and remorse.  He saw a young man who was paying for his crime in prison for his entire adolescence, and who did not see himself worthy of forgiveness.  Still, Azim forgave him his crime and offerred him a job with the Institute, teaching kids how to avoid violence and gang affiliation.  In fact, Khamisa is working on getting his sentence commuted so that he can put him to work.  That way, Khamisa believes Tony can begin paying his debt to humanity and forgiving himself now that the family of his victim has forgiven him. 
     In mediation, we often counsel clients to engage in apologies and explanations, but seldom get to the other half of the equation:  forgiveness.  Forgiving the other is only one part of that side of the equation:  the other is forgiving yourself. 
     Every member of the audience was emotionally moved by Azim's story...but when he went to the place of forgiving ourselves, the crowd of about 100 mediators was, in a word, breathless.  None of us will soon forget these wise words and Azim's message.   I wanted to attempt to capture them here.

Saturday, March 9, 2013

Identify the Underlying Interests of the Parties

The true believers in Mediation understand that most disputes are not just about the money.  Sometimes before a negotiation of monetary damages can even begin, it is important to tease out what is really driving the complaint and attempt to address those needs as the hearing proceeds.  In a case I handled this week, a staff member of a synagogue brought a lawsuit for wrongful termination.  After she was let go, she could not understand why the Rabbi did not reach out to her when she suffered a devastating loss in her family.  For his part, the Rabbi could not fathom that she chose to bring a lawsuit against the synagogue after so many years of friendship and loyal service. 

Before any negotiation could begin, the two opposing parties came together in a joint session--which was punctuated with tears and laughter, an exchange of photos via IPhone of grandchildren and weddings, and a true re-opening of a longstanding relationship that later facilitated the settlement of the legal dispute.  Lawyers are adept at making demands for monetary damages and offers in exchange.  Mediators, from my perspective, need to do more if they are truly to bring closure to legal disputes.

Monday, March 4, 2013

Inquire About Each Disputant's Agenda Before you Begin

     Litigation is typically a well-orchestrated process which is initiated by a formal "complaint", which includes several distinct "Causes of Action", together with a list of "remedies" and a "Prayer" for damages resulting from whatever misconduct is claimed.  In response, Defendants file a formal "answer", usually denying all misconduct and perhaps adding a few "affirmative defenses" to the mix.  By the time the case gets to mediation, it is usually less well-defined.

     Between the initial filing and the mediation hearing, both sides have engaged in both formal and informal discovery.  Both sides have felt the discomfort and stress of both the litigation and the attendant expenses of bringing or defending a lawsuit.  Both sides have necessarily had to evaluate both their realistic chances of success and the broad range of damages that may be available.  Each participant has had the chance to gauge his/her opponent and their counsel.  In short, by the time of mediation, there may be much more on the agenda than just monetary damages.

     For example, last week I mediated a medical malpractice case in which the Doctor really wanted a chance to explain the medicine to me and, failing that, to a jury.  He was quite confident that a jury would understand that he bore no liability, and willing to pay his lawyer to get what he considered to be "Justice" at trial.  This week, I'll mediate an employment dispute where a teacher was terminated from a religious school.  The religious leader wants to explain the school's decision, and I have faith that he can do that better than a jury would.  Before we can discuss monetary damages, I think it will be critical to both parties to have an explanation delivered in a way that a religious leader can do with sincerity, truth and clarity.

     This is not a blog post about non-monetary damages as a substitute for money.  It is about honoring the purpose and objectives of each disputant before discussing damages.  It is, in my practice, the exception rather than the rule that the lawsuit is "only about the money".  It's worth exploring the other aspects before making the assumption that the pleadings rule.