As beginning mediators, we’re taught that facilitative mediation is classic mediation. If you’re like me, however, you’ve discovered somewhere along your mediation career path, that an evaluative approach can greatly increase your settlement rate. The more cases you mediate, the more your subject matter expertise grows, giving you the right to be evaluative, right? You’ve “seen it all before;” you speak with experience and confidence; you know what a judge or jury will decide. Your settlement advice is invaluable. After all, you’re the expert. Your mediations begin to follow a tried and true format. Read the briefs, make your decision, and proceed with mediation…
Wednesday morning, Santa Monica Court, a rear end, minor impact auto case. This one’s a textbook fact pattern seen in hundreds of PI cases. MIST: minimum impact soft tissue. No broken bones, no mangled body parts, just sprains and strains with no demonstrable manifestation. Soft tissue injuries which would completely resolve, leaving the plaintiff good as new. Defendant wasn’t denying liability; he couldn’t. He’d rear ended plaintiff in an intersection where plaintiff was waiting for the green. It was a five mile per hour “little tap”, resulting in a modest $1,200 auto repair bill. What the defendant was disputing was the “necessity and reasonableness of plaintiff’s treatment.” Plaintiff’s chiropractic bills (specials) amounted to about $5,000 and, although multipliers went out the window decades ago, plaintiff was demanding $15,000. Defendant was represented by his insurance company’s in-house council. Their offer of $2,000 was playbook perfect: $1,000 for chiropractic and another $1,000 for pain and suffering.
I’d barely finished reading the mediation briefs when a number jumped into my head. $5,000!! My experienced opinion said plaintiff had over treated. While he definitely deserved more than the $2,000 defendant was offering, I clearly saw the settlement as $2,500 to the good doctor and another $2,500 for the plaintiff, his attorney and court costs. The magic number was $5,000!
I met the plaintiff and his attorney in caucus. I talked about confidentiality, told them that I wasn’t the judge and proceeded to evaluate the strengths and weaknesses of the case. This was a piece of cake – I can do PI cases in my sleep. Plaintiff’s counsel admonished me that, as mediator, my “job” was to get $15,000 from the insurance company, no negotiation. “Put yourself in the defendant’s shoes,” I replied. “Consider that your client has over treated.” Plaintiff’s attorney informed me he did not, and would not, put himself in Defendant’s shoes.
I had not gotten off to a good start. My next move would only make things worse. “Juries in this venue are particularly conservative,” I said. “In my experience, they wouldn’t be sympathetic to a healthy young man receiving four months of massages and hot and cold packs.” I went on to say that people hate being dragged to jury service, and that a jury may be angry at both sides for not working this dispute out themselves. “The jury,” I concluded, “could even, conceivably, award nothing.” Plaintiff’s attorney grabbed his client’s arm, dragged him to the door and screamed, “You have no basis for those assertions; this mediation is over.” He then headed into the courtroom to set a date for trial.
At that point, my past experience and extensive subject matter expertise meant nothing. My immediate jump to an evaluative stance caused me to miss an important underlying fact, namely a complex attorney-client dynamic. (In this case, the two were long time family friends and Plaintiff expected his attorney to act like a shark.) What I should have done first, was to explore that attorney-client relationship. Second, based on those findings, I should have given this combative attorney ample time to posture in front of his client. And third, in a private caucus with the attorney, I should have asked him to give me a chance to tell his clients the true value of their case.
In playing the role of “agent of reality,” the mediator allows the attorney to remain in a true advocacy position thus ensuring the mediator has earned the right to apply his subject matter expertise to set the case back on track towards settlement.
By Scott Berman, SCMA Director www.scmediation.org
SCMA 23rd Annual Fall Conference PUTTING MEDIATION TO WORK: Expanding Horizons, Expanding Opportunities
A Meet-The-Speakers Reception and
A friendly Dinner with Colleagues!
The ABA is pleased to announce the 2011 winners of its Second Annual Mediation Video Contest on YOUTUBE®. The competition sought original three minute videos which helped further public understanding of mediation and promoted the use of mediation as a way to resolve disputes. The videos were judged for effectiveness, quality appeal to a diverse audience, originality and creativity. The First Prize Winner will receive a $1,000.00 cash prize. The Second Prize Winner will receive a $500.00 cash prize. This year we added a student category, with the First Prize Student Winner will receive a $500.00 cash prize and the Second Prize Student Winner will receive a $250.00 cash prize. The winning videos will be featured at the ABA Section of Dispute Resolution Spring Conference in Denver, April 13-16, 2011 with over 1,000 expected attendees. The videos of the First and Second prize winners in both categories will be linked from the ABA Section website. The winners are: Read more
Message from SCMA 2012 President Barbara Brown, Esq.
Dear Colleagues –
Here it is March already! And the rest of the year promises to be most interesting for our field.
One issue you will want to be on top of is the introduction of AB 2025 in the California State Assembly. Under existing law, nothing said in the course of a mediation is admissible in evidence or subject to discovery in another action or proceeding. This confidentiality applies as well to communications between a client and his attorney. This means, as articulated by the California Supreme Court in Cassel v. Superior Court, 51 Cal 4th 113 (2011), that if a client wants to sue his attorney over something that happens during the course of the mediation – claiming, for example, that the attorney misadvised or pressured him – he could not prove his case by testifying about what happened at the mediation.
Legislation has now been introduced in the California Assembly which would abrogate the holding of the Cassel case and say that mediation confidentiality would not apply when a client sues his attorney over something that happens during the mediation. The ramifications of this legislation are potentially enormous. See the article on AB 2025 by clicking here, and links to arguments on both sides of the issue. You can also join the conversation already underway on LinkedIn under Groups, Southern California Mediation Association.
If you are on any of the Los Angeles Superior Court’s mediation panels, don’t forget to renew your application. The deadline for renewal has been extended to June 30, 2012. See the article on Re-Application at this link.
SCMA is proud to announce that we will be offering many networking mixers as the year progresses. Check your e-Blasts and this website for more information! We hope to meet, mix and mingle with each of you!
SCMA is a tax-exempt association formed as a 501(c) 6, the classification designated for organizations whose primary purpose is the development and promotion of a professional activity
While promoting mediation as a profession, SCMA supports and contributes to each professional member’s individual standing as a provider of an important, marketable service. SCMA also recognizes the critical role of volunteer, public and nonprofit dispute resolution agencies as fellow peacemakers, facilitators and experience-based training institutions for mediators.
As a courtesy and attraction to business, corporations and nonprofit entities, SCMA opens its membership to supporters and users of mediation. These members become privy to developments affecting the field, especially those which impact problem solving in their fields as well as the system of justice in our culture.
Other benefits include discounts on practical seminars and timely access to some of the nation’s top providers of mediation and collateral services.
The Western Justice Center is looking for experienced mediators to observe and manage mock mediations for elementary, middle and high school students during our annual Peer Mediation Invitational (PMI). PMI is an annual event for peer mediators in elementary, middle and high school to participate in mediation role-plays and meet with and receive feedback from adult mediators. In 2011, PMI will take place on March 15 for elementary students, 22 for high school students & 24 for middle school students. Volunteers are not required to attend all three days, but an orientation is required and will be held a week prior to the event.
A convenient opportunity to buy audio recordings of this year’s Conference sessions is yours! Individual session recordings or the whole Conference are available at very reasonable rates direct from Master Duplicators. Prices start at $16.
19 sessions, ranging from the Welcome and Cloke-Millen Read more