To Avoid a Claim for Malpractice, California Court says Keep Your Mediator Present at All Times

Both the mediation and legal communities in California are abuzz about the Court of Appeals decision in Cassel v. Superior Court (Cal. App. 2 Dist. November 12, 2009)which held that attorney client communications are not protected from becoming evidence when they take place at mediation if the mediator isn't in the room at the time of the communication. Apparently, a well respected lawfirm, Wasserman, Camden and Comden, strongly urged it's client, Mr. Cassel, to accept a $1 million settlement during a private meeting at the mediation. Mr. Cassel agreed and the settlement was drawn up. Now Mr. Cassel is claiming his lawyers coerced him into the settlment and in doing so, breached their fiduciary duty to him. Not only does he seek to unravel the settlement, but seeks additional damages from his attorneys. The Court created a judicial exception to the confidentiality statue where the communication was solely between lawyer and client. Lesson? Lawyer beware. Never let the mediator out of your sight lest your advice, if accepted, maybe subject to later challenges. And your settlement may be unenforceable. Sounds like a good deal for mediators, and a raw deal for mediation confidentiality. Lots to think about on this one.

Mediator's Ethics: Does it Include a Just Outcome for the Disputants?

Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice. Although the talk was billed as "Ethics for Mediators", Professor Robinson provoked us to question whether mediator's have a heightened duty to make sure that whatever agreements we "broker" have legitimacy, integrity and meet legal standards. The legal standards would, of course, include only those agreements which were not entered under duress or coercion, were based upon informed consent and entered into by a person of sound mind and capacity. Robinson suggests that this is all the more important because if a party enters into an agreement in the context of mediation, he or she can never establish that the agreement was unfair and therefore set it aside later. Hmmm...This puts a burden upon the lawyer mediator that I'm not sure I'm willing to accept. I was pretty satisfied being staunchly "impartial" and allowing the parties to exercise their self determination. And yet....It's noteworthy to point out that there are Model Standards for Mediators, which are a little different from those adopted here in California, that require both self-determination and fairness. Occasionally, these contradict one another. I have frequently presided over mediations in which I believed that one side was getting an unfair "deal"--but did not intervene to re-balance the terms of a deal which both sides agreed to enter into. While I routinely "test" whether there is money left on the table, for example, I typically refrain from interfering in a negotiation which seems to me to be imbalanced. I assume that each party, always acting through their attorneys in my case, have their own reasons for doing what they are about to do--even if it doesn't make sense to me. There is something driving them to reach the deal that they strike--and I'm generally satisfied that I need not safeguard the "outcome", just the fairness of the process. Robinson's lecture suggests otherwise. I'm still examining...

Do Mediators Do Justice?

I mediated a couple of tough sexual harassment and wage and hour cases this past week. At the end of one, the owner of the company asked me a probing question: "Is there no justice in this Country?" I had to step back and contemplate that one. Our California employment laws are particularly protective of employees. They have the right to rest and meal breaks, regular hours (or paid overtime subject to very specific pay rates) a workplace free of what used to be called "flirtation", particularly by their supervisors, and on it goes. And yet...the result can cost the employer much more than the employee would have earned, based upon penalties, attorneys fees and tort damages. So is it justice to settle a case for that kind of payment even in this tough economy? I maintain that what I do is it's own brand of justice: I help parties reach deals which roughly reflect a careful analysis of what a jury or judge would do, tempered by the ability to pay and the savings of avoiding a trial. Is it fair? Is there justice in this Country? These are hard questions. Sometimes I'm glad I'm not a Judge and don't have to bear the price of justice on my shoulders.

Duty to Clients or Country?

It is about to happen to me. Next week, I anticipate receipt of a subpoena to testify in Federal Court about a mediation over which I presided 18 months ago. I have already received the Court order telling the parties to request my declaration (which I refused to do.) Here's the deal: U.S. District Court civil rights action. No offers made and the case did not settle before me. 18 months later, the case went to trial and the Plaintiff got a "modest" verdict. The parties are now fighting about attorneys fees. The court seems to be persuaded by the Defense's position that the case could have been settled for the amount of the verdict at the mediation. (But of course, it wasn't!) I discarded my notes a year ago, but have orally communicated with both lawyers that my recollection is that no offer was made. Certainly, the case didn't settle--so what difference does it make? It's a perilous position for the court or the attorney's to take: if you fail to accept a low-ball offer, you may not be able to recover your fees if you do better than that at trial unless it's huge. While up until now I considered the attorneys and their clients to be "my clients", I intend to refuse to testify under the confidentiality protections. I guess I feel a little differently about my "duty to country" in the face of a Subpoena to testify to a Federal Judge about matters I consider to be strictly confidential. I'm left feeling angry that the Court may determine this in ways that contravene the policies favoring mediation through confidential communication. I'm lefting feeling angry that I will have to go through the expense of refusing to comply with a Federal subpoena in order to safeguard this process.

Lessons from the International Academy of Mediators

I attended an excellent Professional Conference this month in London, The International Academy of Mediators, "What Can we Learn from Each Other". During the conference, a full day's mock mediation was staged. It was the first I'd ever seen where professional actors were employed to demonstrate the raw emotionality that so often surfaces in civil mediation. So this week, I gave it a try. I facilitated two joint sessions in cases in which I would normally have kept the parties separate. In the first, the lawyer blew up and shouted in ways that were unexpected to me, her client and opposing counsel. Just as I had observed Avi Schneerson at the IAM do, I sat quietly and allowed that anger to boil over into the joint session. Within a very few minutes, there were huge concessions following that outburst and the case was settled within 30 minutes thereafter. In the other case, I spent over two hours preparing for the hearing by discussing the relative positions of the parties through their counsel. This one turned out to be more procedural than fact-based, but the lawyers weren't communicating with one another, rather they were busy advocating for their clients. So I took the chance to conduct that one with all lawyers together in a joint session for almost all of the negotiation. Lo and behold, they were much more civil to one another when sitting together in a room without their clients then I would have anticipated and the case was also settled in 4 hours. Thanks to my fellow IAM members, and a couple of paid actors, the theater of my mediation hearings proved to be a great laboratory for new lessons learned, including bravely allowing conflict and emotionality to be demonstrated publicly in order to truly allow the parties to get to a resolution.

Respect of a Man

My youngest son will turn twenty one tomorrow. This is a hat tip to Jordan, aka "Mr. Schau" of Mr. Schau.com. He is my webmaster and also the host of a site known as "PureNeeds.com". He is most certainly a rising "bon vivant". He leaves today for Las Vegas and then after he drops his bags at Columbia in New York, where he will be Junior in the Engineering Program at SEAS, he will meet his sister in Nice, France for a quick vacation abroad on Tuesday.
But this entry is not about Jordan, but about the two mediations over which I presided this week. Without revealing any confidential information, the first was the wrongful termination of a young, Hispanic kitchen worker and the second was a contract issue by a well known celebrity. Both cases were resolved, with hugely different results monetarily, but with a single commonality. Each of these men brought their legal claims because they were disrespected in the workplace and the only means to attain the respect to which each knew instinctively they were entitled was to seek legal redress. The kitchen worker was not represented by counsel, but the celebrity could also not get his point across without legal representation. In the end, once I was able to acknowledge and confirm their positions and contributions to the Companies to which they had dedicated years of work, the money part was easily resolved. The Companies they sued were not able or willing to acknowledge or value those contributions without engaging a mediator who could evaluate them with a degree of neutrality. I would conclude it was also a degree of humanity--which often times a corporate culture doesn't bring to the table.
So here's to you, Jordan, and to all good men: may you always act with integrity, work with intelligence and humanity to others and earn the respect of others and to acknowledge the contribution of your friends and colleagues.

Mediating Civil Rights Issues

I was struck by the latest bipartisan efforts at mediating civil rights. Yes, it's true, apparently Rev. Al Sharpton and Former Congressman Newt Gingrich are on a road trip promoting equal education in America! Bravo! I'm currently reading an excellent novel, "The Help" by Kathryn Stockett, which addresses civil rights in Mississippi. The shocking part of the story is not the tender discussion of disparities between the Southern White families and their African-American maids, but rather how recent this disparity existed! The story reads as though it's another century, but takes place in the 1960's. It's a story of a White woman writing the "stories" of a dozen maids about their experiences working for White families: they raise their children, nurse them when they are elderly and all the while attempt to maintain their own lives and families on limited income and unequal liberties and opportunities. Now, nearly 50 years later, the news in America is indicating the government is relying upon a partnership of Sharpton and Gingrich to bring this conversation forward once again with respect to education. It's shocking, and yet, so compelling. Partnerships, alliances, dialogue is the only way change can be meaningfully made. Bravo to Kathryn Shockett for taking on this raw conversation, and kudos to Sharpton and Gingrich for continuing the dialogue towards a better future for our kids--all of them!