Tag Archives: court ordered mediation; contract dispute mediation

News in Mediation

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

News in Mediation

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

News in Mediation

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.

News in Mediation

A perfect example of a case that should have settled in mediation.

The following news report is interesting. There likely is a plaintiff’s attorney who is today crowing about getting the jury to award everything he asked to his client. They only took 25 minutes to reach their verdict. This is precisely the type of case that should have settled in mediation long ago. When the issues are that clear cut, the jury system can be a disservice. The political careers of the defendants offers one explanation for why they did not resolve the case in mediation. Perhaps their only goal was to get the jury result after election day. Who knows. This case also illustrates that a mere $250 fine for failing to obey the court’s order to mediate is not sufficient threat to encourage good faith participation. See what you think:

“Attorneys ordered to pay

by LAREIGN WARD, Press Argus-Courier Staff
Wednesday, November 3, 2010 10:40 AM CDT

Van Buren City Attorney Don Jenkins and Crawford County Justice of the Peace Kevin Holmes were ordered by a jury on Friday to pay nearly $30,000 to a man who sued the two for failing to pay him for batting cages and equipment.

Mike Cormack, the plaintiff in the case, said the jury took “less than 25 minutes” to decide the case after a one-day civil trial. On the verdict form, which was filed at 5:45 p.m. Friday, the jury awarded Cormack $29,995 in damages for the items. Cormack said the jury also ordered the two to pay him interest and attorney’s fees.

Cormack filed the suit in February 2009 and alleged that in March 2009, he had entered into an agreement with the two to sell them the items for that amount, but that after Jenkins and Holmes took possession of the cages and equipment, they refused to pay.

Cormack was represented by Fayetteville attorney Kenneth S. Hixson, and the two sides could not reach an agreement at an August mediation. Each side was also charged with contempt of court and ordered to pay $250 after failing to meet an earlier deadline for mediation.

In court filings, both Jenkins and Holmes denied Cormack’s charges, and Jenkins also filed a counterclaim alleging that Cormack was committing abuse of process and fraud in filing the suit.

On Tuesday, both Jenkins and Holmes were candidates for Van Buren city attorney, with Jenkins seeking another term and Holmes trying to unseat him.”

Rhonda Smiley

Resolution Guru

Mediators To Go

www.mediatorstogo.com