Friday, April 18, 2014

Those Nightmare Stories: Are they Useful in Mediation?

Mediators and attorneys generally discuss the alternatives to a mediated solution in terms of risk analysis, cost analysis, investments of time and likely verdict potential in litigated cases.  But occasionally, a case goes awry in ways that seem unpredictable and aberrant.  Are these stories useful to help get cases settled or is it too easy to discard these as hyperbolic nightmares?

In a recent appeal from a Labor Board Commission ruling, both sides rejected a Mediator's proposal of the amount of the award plus 25% for attorneys fees.  The attorneys fees would only be awarded to the employee if the employer lost it's appeal--as a kind of penalty for appealing a Labor Commission ruling and incentive to simply pay the award.  The shrewd Employer in that case decided rather than to pay the award plus 25% as I had proposed, that he would simply dismiss the appeal and pay the Labor Commission award alone.  The employee's lawyer brought a motion for fees and costs crying unfairness and gamesmanship.  The Judge, however, was constrained by the letter of the law and dismissed the motion. No fees were awarded.

It is a bit of a nightmare, but maybe makes a good story as to the strange tentacles that come with the law.  Useful?