Category Archives: News in Mediation

A good example of a family matter that should have been mediated.

There really is not much that needs to be said after reading this straightforward appellate court decision about a divorce (click here to access the document). This is a public record, just like all divorce records.

The dollars involved in the dispute do not merit the legal fees that had to be expended to resolve these issues through the legal system, including a dismissed appeal. Worse, if the lawyers worked for free (pro bono), the valuable legal and judicial time that was spent on this dispute could have been spent on something more productive.

I am not suggesting that the parties did not deserve a resolution. They just should not have had this dispute made public and consumed their resources on it. It is an easy read so I hope you will just read the decision. Too bad we now know the former husband is homeless, etc. Confidential mediation works and could have saved these people time, anguish, and expense while keeping their situation private. It is hard to understand why more people do not mediate their divorces to take advantage of these benefits of mediation.

Rhonda Smiley
Resolution Guru
Mediators To Go
smiley@mediatorstogo.com

Employment disputes are best mediated.

The confidentiality of mediation makes it particularly appropriate for employment disputes.  Employees and former employees are attuned to the need for them to resolve their disputes quickly and confidentially because they need to return to the job market with their employability in tact.  There are very few employment disputes where the claimant receives enough money to retire!  Most disputes are far less valuable to the employee than many expect.  This is partly due to the limits placed on such claims by state and Federal law.  But, also partly due to the pre-dispute earnings of the employees who make claims.   Economic damages are limited by those earnings.

Employees typically are eager to mediate their claims once they understand they have an opportunity to mediate confidentially and that they will not be forced to resolve their case if they do not want to resolve it based on the terms offered in mediation.   One very successful employment law attorney who generally represents claimants had three mediations of lawsuits already in Federal Court in December.  Not a single one was resolved in mediation.   Since mediations are confidential, we do not know why.

What we do know is that the employers and the employees are still struggling through Federal Court litigation.  We also know that those cases ultimately are 98% likely to settle before they are tried because Federal cases just do not get resolved by juries very often.   The parties would benefit by resolving the cases sooner rather than later.

I offered to mediate those same cases again for exactly one-half of the fee charged by the original mediator because of my belief that I can resolve the toughest cases.  I would consider making the same offer to others who fear the cost of a second mediation just to demonstrate that the mediator and the mediation techniques can make a difference.  Call me if you would like to explore this option.

Rhonda Smiley
Resolution Guru
Mediators To Go
www.mediatorstogo.com
smiley@mediatorstogo.com

How can my business benefit from mediation?

Most business owners are sold on the benefits of mediation. What they don’t know is how to use this tool in their business. Some suggestions:

First, require mediation.

Every business has written agreements with some people and entities that are part of its business model. Employees, customers, contractors, agents, suppliers, affiliates, and others have some form of business agreement with your business. Every business could have a dispute with any of these elements of its business model. Each business can and should adopt a mediation position that it incorporates in each of these written agreements with its business “partners.”

How?

Let’s look at employees. Employees start out as job applicants. They submit written job applications. As soon as your business announces a job opening, there are obligations under state, federal, and local laws not to discriminate or infringe civil rights, among others. Job applications are the natural place to state your commitment to mediating disputes and require the applicant to agree to mediate before filing claims or suing your business. The successful applicants and the unsuccessful applicants will be bound by this promise to mediate first.

What about customers? The variety of customer “engagement” communications in which a mediation first requirement can be inserted is vast. Let’s take a simple one, a job proposal for a construction project. There are countless varieties of forms and formats for these common contract documents. Every business has developed some language that describes its terms for offering to perform services. That proposal “boiler plate” may not be something the business even thinks twice about now but it includes obligations that carry through to the end of the project. It could just as easily include a requirement for pre-litigation mediation as anything else it includes. Supply orders can include pre-litigation mediation requirements too.

Businesses that operate on the web can include the pre-litigation mediation requirement in their terms of use of the website, which everyone routinely accepts in order to do business efficiently on the web.

The opportunities are endless once you have made the commitment to mediate before allowing your business to be sued.

Rhonda Smiley
Resolution Guru
Mediators To Go
www.mediatorstogo.com
smiley@mediatorstogo.com
(c) 2011

How to get an enforceable mediation resolution agreement.

Many people want to know how Mediators To Go sends them away from the mediation with an enforceable mediation resolution. There are two ways.

Unambiguous Written Agreements.

We help the participants write down what they have agreed to do or not do. As part of that process, we help them explore the meaning of their agreements so that there is less chance of a court refusing to enforce the agreement because it is “ambiguous.” Ambiguity is the bane of written agreements, whether they are mediation agreements or ordinary contracts. We ask “what do you mean by that?” a lot to be sure the parties are setting forth their intentions.  We say “what do you mean by that? a lot too.  We delve into their answers to be sure they have captured the contingencies in the words they have agreed to.

Video Proof

Then, when they are fully satisfied with the terms, we offer them the opportunity to discuss their agreement on video camera with the other party. When they put their agreement into their own words on video, and both parties are saying that this is what they agreed to, it is much more likely that a court asked to enforce the agreement will find it enforceable.

It is much more difficult for a party to later claim that they did not understand the agreement when they are on video saying they do understand it.

Trust but Verify

Usually by the time parties reach mediation there is a low level of trust.  Some parties start the mediation saying something like this: “why should I trust him to live up to this agreement when the reason we are here is because he didn’t live up to his first agreement?”   The mediation process explores the trust issues and seeks to resolve them.  The video documentation of the agreement is an added bonus strengthening the new relationship going forward.

No Added Charge.

Consistent with our one flat fee mediation promise, there is no additional charge for the video proof of the agreement.  Because both parties are there, they are able to testify as to its authenticity.  We also provide a certification should the video need to be introduced into evidence to enforce the agreement.

We look forward to resolving your dispute soon.

Rhonda Smiley

Resolution Guru

Mediators To Go

www.mediatorstogo.com

Judge Judy, Judge Joe? It’s just binding arbitration.

You know a lot more about alternative dispute resolution than you think.  Most people do not think about what they are seeing when they watch one of the television shows where a robed “Judge” resolves people’s disputes. The participants have to agree that they will abide by the “Judge’s” decision. So, that means they have voluntarily submitted their dispute to binding arbitration by a neutral third party, the “Judge.”

That this is such popular entertainment to have multiple shows with different “Judges” is a very good sign for our culture. That the “neutrals” impose their will on the participants is part of the process of “binding arbitration.” It is a great way to quickly and efficiently resolve disputes.

But, you don’t have to go on TV to get a neutral to decide your case.  Mediators To Go also provides binding arbitration services. Many matters are disposed via telephone conferences and emails.  Others require face to face meetings.   The smaller the dispute, the smaller the fee.  The arbitrator helps you write down what is decided so you both can understand your obligations clearly and concisely.  You finish the process with a binding agreement that both parties agree to fulfill and that can be enforced by a court if it is violated.

Have you ever thought about how nice it would be to have that lingering dispute resolved once and for all? Will the other party in your dispute agree to accept a neutral third party’s decision?  Is it worth an email or phone call to find out?

We are here to help.  The best part of our arbitration process is it is not on TV.  It is entirely confidential unless you have to enforce the binding agreement in court later.

Rhonda Smiley

Resolution Guru

Mediators To Go

866-381-8609

Lawyers, claimants, mediators note new Medicare fines.

There was a time when potential Medicare liens we easy to negotiate away so the claimant and the claimant’s attorney received more money from settlements.  Those days may be over.

As part of health care reform, Medicare has new teeth in the duty to report payments, settlements, and commitments to pay medical bills.  $1,000 per day for failure to report.  The reporting obligation began in 1989 though.  The reporting obligation is broad.

One should presume that this new emphasis on reporting will lead to Medicare’s reduced willingness to waive liens in order to funnel more money back into Medicare.

For more on this legal update, see:  Work Comp Cost Management Group News LinkedIn.

Rhonda Smiley

Resolution Guru

Mediators To Go

Don’t hand over your personal information to identity thieves.

The title of this blog entry may seem silly but it isn’t. Last week I tweeted the suggestion that those who are divorced might want to check what personal information of theirs is available for free in their public courthouse divorce file. I wrote that because I visited a random courthouse last week and read through a dozen or so divorce files to learn what part mediations have played in that jurisdiction. There were no mediations referenced in my random sample.

What I found though was full tax returns with visible social security numbers for both parents and two children in one case.  SSNs for just the husband and wife in another.  There were full investment account numbers in other related records. More than enough information for an identify thief to cause harm.  Mediation would keep that kind of information out of the public record.

Worse, one divorce file had some spicey allegations about sexually transmitted disease and adultery.   The creative attorney filed and served discovery requests (interrogatories, request for production of documents, and request for admissions) with the complaint so they were in the file. Discovery requests are not normally filed with the court. They often get filed if they are pertinent to a motion or other proceeding though.  And, once filed, they are open to inspection.  So, when the attorney asked the spouse to admit that the spouse committed adultery, contracted an STD and transmitted it to the other spouse without telling the other, that became part of the public record.  Mediation would keep these allegations confidential.

The confidentiality that mediation offers is one of its key attributes. There are provisions for filing confidential materials in divorce files, but they are often disregarded or inadvertently overlooked.  And, as noted, discovery responses often have to be submitted to the court as well.

The really sad part of the situation of the file with the information on STDs is that the couple later reconciled.  They did not conclude the divorce.   I doubt their friends and family are aware of these allegations.  This information is still in the public record though.  It will be publicly available unless they take specific steps to have the file sealed.  Usually, once documents are filed with the court they cannot be removed.  So, if I sound like a zealot for confidential mediations, I have made my point.

Rhonda Smiley, Esq.

Resolution Guru

Mediators To Go

It happens. You lose the case you should have won.

Jim McElhaney’s column in The American Bar Association Journal is always a humorous well-needed lesson in lawyering.  The November article starts with the following conversation teaser:

“What’s the matter?” I said. “Bad verdict?” “That’s the understatement of the day,” she said. “Lost a case I should have won.”  The full article is here http://www.abajournal.com/magazine/article/lawyer_fatigue?.

The take away lesson for me is that juries remain unpredictable.  The information available to jurors is phenomenal.  They are bombarded by television shows depicting an incredibly unrealistic view of how case preparation and jury trials actually work.  Their expectations are being shaped in a manner that is difficult for lawyers to meet in the constraints placed on them by the jury system.

What do lawyers say to their clients when they lose the case they “should have” won?  We’ll appeal.  That is a whole other topic.  What they should say is, let’s mediate again.

Both sides have seen the full proof.  Just because one jury ruled in favor of one side, that does not mean that the next jury would.  Sure, appeals are even harder to win.  But, courts make mistakes all the time.  Even the trial victor knows that some cases are reversed for trial error all the time.  The only way to avoid another two years of litigation is to resolve the case now–while everything is fresh in mind, and while everyone is exhausted from the burden of trial.  That is when everyone is most motivated to resolve the case.

Do not expect that the victor is oblivious to the problems they might have on a re-trial.  Mediate the case as soon as possible after the trial.

Rhonda Smiley

Resolution Guru

Mediators To Go

Lead story from ABA Section of Litigation Journal=Mediate.

The latest issue of the American Bar Association’s Section of Litigation Journal arrived on my desk this week.  I love this journal so I usually get to it right away.  The “Opening Statement” starts with this acknowledgment: “statistics show that currently only about 1 percent of cases filed in our courts are actually resolved through trial.”   Go here to read the full article for free:  http://www.abanet.org/litigation/journal/opening_statements/LitMagSum10_bass.pdf.

If you have a lawsuit, you will have a mediation.

As we have said before in this blog, court rules require nearly all cases to be mediated with an objective third party before the courts will set them for trial. The author observes that changes in our judicial system have led “many litigants [to] make a well-reasoned, rational decision to resolve their dispute by entry of a voluntary pretrial agreement.”

Preparing for a mediated result is different from preparing for a jury result.

The impact on case preparation is enormous.  When parties and their attorneys are working toward the best possible pre-trial resolution rather than a trial they do things differently.  An example.  As trial attorneys we routinely planned the cross-examination at deposition of the opposing side’s expert witness so that the “gotcha” was not revealed until trial.  Why?  Because a clever expert and a clever attorney will change their positions  to take the wind out of what would otherwise be a grand gotcha moment before the jury.  You only get one chance to make that winning impression with the jury.

But, how do you handle this differently if you assume you will settle before you get to the jury?  What do you do with that killer information in mediation?

The old rules don’t work for mediated resolutions.

Old school attorneys still counsel their clients to save it for the jury.   They may tell the mediator in confidence about their secret weapon against the opposing expert, but then hamstring the mediator by preventing disclosure to the other side that has the weakness.  This tactic robs the mediation of some serious power to produce a settlement.

What about the “gotcha” moment?

Mediation savvy attorneys maximize the value of such information during the mediation and increase the chances of resolution before trial.   The very best gotcha moment I ever saw at trial:  Trial attorney had the opposing expert on the stand swearing that the devastating event occurred at the hottest part of the day.   The witness’ position was the attorney’s client’s product was defective.  The trial attorney meticulously took the witness through his calculations.  Each time getting the witness to reaffirm the timing of the event.  Then, the attorney got the witness to admit that the weather report he relied on was based on GMT (Greenwich Mean Time) not the local time of the event.  The several hours time difference destroyed the witness’ argument.  More importantly, it destroyed his credibility with the jury on everything else he said too.   Just like cross-examination is supposed to do.   It was glorious.  The attorney won.

What happens when you lose the case your lawyer said you will win?

If you have a fact as devastating as this and your attorney can accomplish a cross-examination as masterfully as this, perhaps you should wait until trial.  If you have doubts, consider this.  This victory came at the end of the second trial of this case.  The first case led to a multi-million dollar verdict against the defendant.  Stark realities.   The witness’ reliance on his erroneous  time assumptions was already in his deposition and his expert report.  He was tied to it.  Even if he could change his opinion, there would be damage to his reputation and his credibility with the jury.  The opposing attorney was certainly smart enough to understand the potentially disastrous result of having his expert crushed at trial.  If this information were used in the mediation, it may have led to a resolution before trial.  Of course, a complete victory from a jury verdict could not have been achieved.  But the cost and risk of trial may well have been sufficient to get a mediated settlement.   Defense attorneys often discount the impact of the prospect of zero dollars on plaintiffs and their attorneys.   Mediators see that impact clearly and can help both sides get the resolution they want.

Prepare for mediation.

The Journal article concludes by musing:  “Perhaps our focus going forward should be on helping our clients resolve their disputes in the most expeditious and economic way–regardless of whether or not the result is a trial.”  Sounds good.  Trials are about lawyers.  Mediations are about you.

Read your real estate appraisal.

One reaction to the housing crisis was for the government to increase supervision of real estate appraisers. Appraisers are governed by the Uniform Standards of Professional Appraisal Practices (USPAP) too. No amount of regulation can replace the knowledgeable review of the appraisal by the property owner though. The reports are written in their own language but the “facts” they report relate to your property. Take control. Read it through and through. Check the accuracy of each fact.

Why? Because appraisers make mistakes. They overlook important aspects of the real estate. They are only human. Every feature about your property, or the “comparable properties” to which your property is being compared, matters. If the appraiser reports you only have 1 fireplace but you have 2, that matters. If the appraiser reports you have 7 rooms but you have 9, that matters. If the appraiser reports that you have average construction but you have granite counters, that matters.  Does this really happen?  You bet.

How much does it matter?  One recent appraisal increased by $50,000 after the property owner showed the appraiser the additional/correct facts.

Why didn’t the bank take care of that?  The lender may not have an incentive to adjust the appraisal.  That could be one reason.  But, also, lenders are less inclined to question appraisals now that the government is watching the housing market more closely. That means you have to do it.

The value of property set by the appraisal can make a huge difference in the lenders’ handling of a loan. Do not assume the appraisal is right, especially if you are losing your home in foreclosure. The process only works right if the true value of the real estate is used.  If you take this simple action, you will be better prepared to mediate a sound resolution to the foreclosure litigation with the lender.

Rhonda Smiley

Resolution Guru

Mediators To Go

www.mediatorstogo.com

smiley@mediatorstogo.com

Copyright 2011 MediatorsToGo.com & Rhonda Smiley All Rights Reserved.