Sunday, June 29, 2008

Independence and Interdependence: The Good Side of Court-ordered Mediations

This week marks the largest settlement I've ever "brokered" and the longest mediation over which I've presided thus far. A month ago, a compelling wrongful death and bad faith case came before me at the strong urgency of the Court. The case had a trial date of June 30, 2008. It was mediated back in 2005 (unsuccessfully and by a different mediator) and then had proceeded to a Motion for Summary Judgment which was granted in favor of the defendant and later reversed on appeal. While the mediation in May got a lot closer, the parties were still millions of dollars apart. Then came the daily phone calls, the true "negotiation", and the framing, re-framing, evaluating, re-evaluating for a full month. After one such conversation, the Defense lawyer advised me that he was instructed to put out his top dollar offer in a statutory offer. The negotiation continued. Last week, on the morning of the Final Status Conference, the Plaintiffs accepted the Statutory Offer which had been submitted 4 days before. While I take some credit for working with both parties to get to a number that would ultimately settle the case, I'm quite clear that the timing created by the Court (through both a trial date and a Statutory Offer) allowed the parties to finally end the negotiation and settle the case.

In another case, I was the presiding Arbitrator. The parties had spent hours and hours disputing and debating the claims, the damages and the discovery in advance. Finally, when they came before me last week, my preliminary ruling was to overrule the Plaintiff's objection to the Statutory Offer being used in an arbitration. Then I simply queried: "Would the parties like to take a few minutes to discuss possible settlement in light of that ruling?" Within 2 hours, that case also settled. It was only the urgency created by the actual "trial" (there were about 6 witnesses and an interpreter in the Office prepared to testify that day), that facilitated that settlement. The Court's process (allowing a Statutory Offer to create the threat that the Defendants may have been able to recover their costs if the Arbitration favored their side) facilitated a serious negotiation which ultimately settled the case without the full evidentiary hearing.

My conclusion is that in both cases, the Court process had the paradoxical effect of urging the "independence" of settling these two cases outside the Courthouse. I thought it fitting, on this week of Independence Day, to draw these analogies. Independence is a prize to be cherished, but our partnership with the institutions and organizations that protect and demand accountability sure help to foster true independence!

Now back to last week's comments. Many of you were confused by the "apology"--so let me explain. After commenting upon the "debate" which was reported by the Daily Journal before the L.A. County Bar Association, I heard privately from Charles Parselle, who demanded a correction and apology. Since I had not correctly or completely reported the event, I simply offered the apology that Charles had asked me to insert. I agree that it should not be a debate, and I had no intention of entering into the debate, but rather commenting upon the sad fact that the matter had to be debated in that way.

I wish you all a Happy Independence Day--but one that is mindful that independence cannot be celebrated without interdependence in its shadows.

Sunday, June 22, 2008

Court Ordered Mediations: Is it Time to Be Honest about their Efficacy?

There is an on-going controversy in Los Angeles County about "court ordered" free mediations. On the one hand, the ADR Committee has steadfastly maintained that Los Angeles is under a specific State requirement to make pro bono mediation available in all cases. On the other hand, mediators have experienced frustration in both the challenge of settling these "ordered" cases and the challenge of building a private practice when all cases are afforded an opportunity to mediate in L.A. County for free. This all came to a head this week at a meeting of the Los Angeles County Bar Association.

According to the Los Angeles Daily Journal article which covered the debate: "Though the debate was civil, Bendix lashed out at the two mediators in a hallway after the meeting. She told Parselle she thought he had been "disingenuous" in the debate when he said low-income litigants would still be able to get free mediation through the court's fee-waiver process if the resolution passed. Bendix told him that his position reflected a "profound misunderstanding" of the fee-waiver process. "I don't want to participate in these discussions with you if you're going to be dishonest," Bendix said sharply. "This is so wrong."

*Let me take this opportunity to apologize to Charles Parselle for suggesting or implying that he made any accusatory or
untoward remarks. On the contrary, the Daily Journal article made it very clear that he was quite puzzled by what had just happened. I have had the opportunity to speak with Mr. Parselle, and he confirms the accuracy of the Journal report and add that in response to the judge's remarks to him, he did not make any response other than to express his puzzlement and repeat that the legislative amendment contemplates that free mediation should remain available to indigent litigants who have obtained a fee-waiver from the court."

Although the Southern California Mediation Association officially took no position on the pending legislative changes when President Nikki Tolt was asked by the reporter for the Daily Journal, the position articulated by Mr. Parselle at this meeting was generally supported by the SCMA last year, when I was the organization's President. I was not present for the LACBA presentation, but I am very familiar with this longstanding dispute and agree personally (and as Past President of SCMA) that change is needed and many cases are "ordered" to mediation and offered free services when the litigants could well afford to pay a mediator for her work. What's more, it is my personal opinion that this would result in higher settlement rates and actually be of greater service to both the court and the litigants!

This week I had the opportunity to co-mediate a case with a colleague who has not accepted a "court-ordered/free" case for five years. He began the day with the following reassurance to each side: "I think this is going to be the day we get this done. It really needs to happen today"...(and to one side: "Amazing things happen between 5 and 6 P.M."). Indeed, the case settled, although it was nearly 7:30 P.M. At its conclusion, he felt triumphant, relieved and tired. I felt something different, after the Plaintiff, who had gotten an excellent settlement, would barely shake my hand. I was left wondering whether we had done justice in achieving the litigators' goal of settling the case that day, but left the plaintiff himself extremely unsatisfied. On the following day, my colleague reminded me cheerfully: "Jan, that's why they hire us. They want us to settle every case, and in the main, I do. It's in at 10:00 A.M. and out with a settlement by 6:00 P.M."

It's taken me several days to process this, but I offer this observation. In court-ordered cases, the parties have no expectation that the mediation date is the day they will settle the case. Indeed, I often begin those hearings by inquiring: "Why are you here?" I do this so that both sides "buy in" to the notion that one possible outcome is settlement, but typically, we all know that there are many other possible outcomes--further discovery, further negotiation or a future settlement date. So it is no surprise that the statistics show that private cases are settled at an 80-90% rate, whereas court-ordered ones are barely more than 50/50.

I'm not so sure it's about who pays for the mediation, but if the parties (and their attorneys) are given free choice and mediation is truly voluntary, chances are greatly improved that the date they choose will be the date each party is ready to resolve the case.

Wouldn't that be a better use of resources for all concerned?

Sunday, June 15, 2008

Business and Life Lessons from My Father

The tributes to Tim Russert on today's morning television were so moving, I thought I'd take a shot at compiling a short list of my own favorite bits of advice imparted by my Dad. "Little Art", as he was known for many years to distinguish him from his cousin, Art Mac ("Big Art") was an enormously successful business man. He built an empire of discount stores and retired by the age of 60. He's now a healthy, tennis playing, travelling, driving 81 year old with a big heart and love of life. But bigger still is his love and support for his family, his friends, his synagogue and community. A broad-chested baritone, he sang as the Cantor for our local Temple while I was growing up; the same Temple where he served as Building Chairman, Brotherhood Chair and President. I imagine that my older sister and brother got a lot more business advice from my Dad than I did, as my sister was the eldest and my brother went into business with my Dad for many years. Still, it was always clear to all of us that we needed to challenge ourselves to do better than others. (All of us have both College and Graduate Degrees.) It was equally clear that family was critical: so each of us have three children and long marriages--ours for 29 years and my sister and brother each for 39 years and counting. My own parents will celebrate their 63rd this year. A lot of my Father's Advice, I think, not only serves me well, but informs the outcome in my mediation practice in so many ways. So here's my list (with my own interpretations):
1. Forget About it. (There's no point in holding a grudge.)
2. Your Handshake should be better than any written contract. (All of your business dealings should be built on trust and fairness.)
3. Once you're in a position where you need to hire lawyers, you're already in trouble. (Negotiation is always the preferred solution in business disputes.)
4. It's a small world, and people have long memories. (Don't do anything you'd be ashamed of later.)
5. Count your blessings. (Don't let the day to day stuff get you down.)
6. Never count anybody else's money. (Jealousy will get you nowhere.)
7. What difference does it make? (Don't be petty.)
8. You can be successful by being decent, honest and kind. (You don't need fancy degrees and a legacy of power or money to succeed in business.)
9. It pays to treat "your people" as you would family. (Everybody deserves to be treated with respect and dignity.)
10. Humor goes a long way. (When all else fails, crack a smile, or even a bottle of gin if you need to thaw cool relationships.)
11. Hard work pays off. (You can do what you set out to if you believe in yourself and work at it every day.)
12. Don't count on luck to get you out of a jam. (Luck is something you can only look at from hindsight. The rest is fortitude, and perhaps prayer (when it comes to health).)
13. Just show up and be there. (In the end, that is the most pure sign of loyalty and caring).

Happy Father's Day to all of my readers, and to my No. 1 subscriber, my Dad!

Sunday, June 8, 2008

Good Advice From the Next Generation

A friend of mine sent me a Commencement address given by Journalist, Samantha Power, this year in Claremont , Ca. (I'm an alumna of Pomona College, although this one was at our sister College, Pitzer). I found it particularly compelling. I attach the website here:

What does this have to do with Mediation? The part I loved was about taking time for silence. It is so true that this generation is more interconnected than any before. They have the capability and technology to be in constant communication with one another. And yet, is anyone giving them the advice of the value of taking a few minutes alone? Do any of them listen to their inner voice? Has the Ipod, the Blackberry, Face Book and text messaging supplanted the need for interaction and introspection?

I attended a funeral today where the Rabbi spoke of a concert where Itzhak Perlman broke a string on his violin. Apparently, rather than struggling with the leg braces and crutches he had just removed in order to walk off stage and replace the string, he performed the entire concert on just 3 strings. When asked how he'd accomplished this, and why, his answer was simple: "I'm a musician", he said, "We make music where nothing was there before". My synthesis of these two stories leads me to the conclusion that both participants and mediators can greatly benefit from taking a few key moments during the course of a difficult hearing to themselves. Some quiet, self reflection can unlock the inner yearnings both driving the conflict and blocking it from being resolved.

Next time you feel stuck, try taking a time out by yourself and see!