Moving To Arizona

After decades in Maine practicing law and raising a family, my wife and I will be moving to our home in Arizona as of August 31, 2014.

This past year has been one of transition and preparation, and we are now very much looking forward to living full time in our home in Gilbert, Arizona.

I will to stay active in the law and mediation as a member of the Bar of the State of Arizona.

And, I will once again pick up writing an occasional piece here. With all that has been going on closing the practice, selling our house, and preparing to cull out possessions of many decades (to move what is really important), my writing time has been spent on other non-legal subjects.

Thank you for visiting my website.

Maine Lawyers Review Article

An article I wrote – “Mediation – Location and A Tragedy” – appeared in the June 20, 2013 issue of Maine Lawyers Review.  A story about the double homicide (an attorney and his client) that occurred in January 2013 in Arizona during a mediation of a civil case had caught my attention.  As a member of the Arizona Bar, I had seen much written about this horrible incident in lawyer publications out there.

In Maine, we have been somewhat immune to violence in our justice system.  Why? Who knows?  I do not think it is because there is such a huge level of vigilance that it has been prevented.  I will leave an analysis to the psychologists and the sociologists.

Each year, we hear these concerns expressed by our Chief Justice in her State of the Judiciary message.  I agree with Chief Justice Saufley, we are living on borrowed time.  All members of the Bar should be very supportive of funding for courthouse security.

As I point out in my article, some level of vigilance is always prudent.  We should also be aware that people in conflict do stupid and sometimes violent things.

Contingency Fees in Mediation

In a recent discussion on Linked-In, the ADR Professionals Group was asked to respond to a question arising in a mediation where one of the parties said they would not pay the mediator unless the mediator procured a settlement of the matter (which was described as a “family modification” case).

One responder noted that the Model Rules for Mediation specifically prohibit contingency fee arrangements.

And so does common sense.

There are really two major ways for a mediator to get into trouble.  One is violating mediation confidentiality, and the second is losing one’s neutrality.  Continuing a mediation in the face of such a demand by one of the parties is a great way to get in trouble on that second point.

How could a mediator possibly remain neutral in that situation?  If a settlement is achieved, then the party not making that demand could easily seek to avoid the settlement by claiming that the mediator pushed them into it to assure his/her fee.

Recently, I received a phone call from a respected trial lawyer with whom I had worked in a mediation concerning a significant personal injury case a few weeks prior.  We did not settle the case at mediation.  But he wanted me to know that he regarded the mediation as a “great success”.  The parties reached a settlement after the mediation when they had taken the time to consider all they had learned during mediation.  They saw the wisdom of accepting the last proposal that was on the table when mediation was terminated.

Neutrality in truth and in fact is the cornerstone of mediation.  Mediators with “settlement-itis” quickly lose that neutrality.

Mediation Location

Most of my mediation sessions take place in the office of one of the attorneys involved in the case.  When I am dealing with a commercial, construction or personal injury case, this seems to work very well.  By the time the parties have reached mediation, often they have been deposed in that same law office or another one.  While not entirely comfortable, they are at least not fearful of being there.

One area where this does not often work so well is in family matters.  In those cases, I often find that the party who is “visiting” opposing counsel’s office is very uncomfortable, and they often feel there is some huge advantage to the side in whose counsel’s office we are mediating.  My own opinion is that in family matters the participants often have a very dim view of opposing counsel, and that view is on a personal level.

Particularly in family matters, it is important to discuss comfort and safety issues with each party separately at the outset of the mediation before attempting a joint session to make sure no person is being forced into s situation they find threatening or one that imposes a serious power imbalance on them.

Safety is not to be ignored.  I once had a mediation where no one gave me a “heads up” that one of the parties had assaulted the other and was in fact in jail due to that assault.  My first knowledge of that fact came when the sheriff’s deputies walked into my office with the person handcuffed and wearing an orange jump suit!  Why no one told me is a mystery to this day.  Needless to say, there were no joint sessions during that mediation.

Luckily, “neutral” locations are out there.  I often use the facilities at the Maine State Bar Association to hold a mediation.  Our courts sometimes have space, particularly the newer court houses.  And, sometimes an attorney not connected with the case will offer conference room space, or public space is available at a library.

While most mediators could conduct a mediation anywhere, the mediator has to be aware that as in the real estate world, it may be a matter of location, location, location.

Why Is Mediation Considered a Form of ADR?

Both litigation and arbitration guarantee an outcome. Mediation doesn’t. Isn’t mediation just a tool to help resolve disputes? Albeit a good tool.

Perhaps because mediation doesn’t have to be mandatory, nor does arbitration. They also have, or can have, different rules than litigation, so in those respects they’re alternatives.

Mediation is perhaps the best example of dispute resolution. Where parties have a dispute, they are hopefully able to resolve that dispute by mutual agreement. Not only is that an alternative to the imposed resolution of a judge or arbitrator, but a more satisfactory and likely longer lived resolution. Admittedly, mediation does not guarantee a resolution, but it is an alternative method of resolving disputes.

Mediation has the great strength of offering an opportunity for the stakeholders to make their own decision with respect to the outcome. Arbitration and litigation guarantee a decision imposed by a third party which may well be unsatisfactory to both parties in the end at great expense of both money and time.

The time factor may be crucial as in the case of a child with special needs who is limbo while the adults hammer out positions they consider to be righteous in hearings and/or court.  Or, important business goals are held hostage and opportunities lost while litigation drags on and on.

Mediation is a form of alternative dispute resolution, but it is in a class by itself because the stakeholders have a unique opportunity to decide for themselves.

Mediation is ideally initiated prior to attempting resolution through an adversarial process. However, sometimes disputes only become “ripe” for a mediated approach through an initial adversarial process.

Mediation is considered a form of ADR because it is a form of ADR. A powerful one. While no process can guarantee resolution, parties often choose mediation because it is more likely than most processes to lead to a satisfactory outcome.

Who should be allowed into a caucus or mediation joint sessions?

This is not an easy decision to make in many cases.

When one side is pro se, it is often considered an automatic thing that the unrepresented side should have a “support person” with them to make them feel more comfortable.  The decision should never be automatic.

In mediation, confidentiality is extremely important to the process.  Even if outsiders sign the confidentiality agreement (and there should be one in all mediation), they have less motive to adhere to it than the parties to the dispute at hand.  Even if everyone agrees to letting them participate, I require them sign the confidentiality agreement.

That is why when I am acting as the mediator, I never make the decision without obtaining the position of the other side.  They may have real misgivings about letting an outsider participate, no matter how well-intentioned, hear various settlement proposals and being given access to personal information.

The other issue to consider is that frequently the party to the mediation will not be the real “decider”.  Frequently the spouse or some other person will have to be persuaded to give their assent in order for an agreement to be concluded.  In that case, having them participate may make very good sense and enhance to possibilities that the mediation will result in a settlement agreement that will not be upset or attacked later.

Some mediators consider an attorney representing a party to be an “outsider” who should not participate absent the permission of the other side.  That is a fairly extreme view.  People have the absolute right to counsel in all phases of mediation in my view, as long as that attorney is there as their legal representative in the matter.

It is always good for the parties to tell the mediator and the other party or parties that someone other than a party will be attending the mediation.  This gives the parties a chance to consider the position they will take on the issue.  The requesting party may feel that this is just a chance to prepare arguments against the attendance of a non-party.  I would suggest that it is a chance to persuade the other parties that it is a good thing that will help achieve a settlement.  Popping the issue on people at the very beginning of the mediation session will more than likely result in a reflexive “no” to the request.

FINRA Launches Small Claims Mediation Program

FINRA’s (Financial Industry Regulatory Authority) Mediation Program has launched a pilot that offers parties in small claims arbitration cases free or low-cost telephone mediation. Participation in the pilot program, which began January 15, 2013, is voluntary and open to cases involving claims of $50,000 or less.

The pilot program offers mediation at no cost for arbitration claims of $25,000 or less; or $50 per hour for cases with claims of $25,000 to $50,000.

Mediation is an informal process and offers both parties the opportunity to discuss their case privately and confidentially with an experienced mediator. FINRA mediators settle 4 of every 5 cases mediated through FINRA’s Mediation Program.

How to Participate

To participate in the program, sign and return the Small Claims Mediation Submission Agreement.

FINRA will assign a mediator, who will contact the other parties to get their agreement. Mediation is voluntary, so all parties must agree before the mediation will go forward. The mediator will communicate the status of agreement to all parties.

More information at www.finra.org.

The American Model of Divorce

From an article in the Kansas City Star entitled “Custody battles at home can scuttle performance at work”:

“Even as the national divorce rate declines, couples who do wind up filing most often participate in a protracted and adversarial process that disrupts their home lives and interferes with their work performance. Social networking has added to the mix, becoming the latest legal tool in divorce and child-support battles and taking the drama up a notch. Add in forensic accountants and electronic paper trails, and you have the makings of long and costly divorce battles.

These contentious disputes are clogging court systems across the country. University of Baltimore School of Law professor Barbara A. Babb, who directs the school’s Center for Families, Children and the Courts, says as many of half of trial court cases are family law, typically taking up to two years from start to finish. With participants fueled by a newfound hatred of their former spouse, these cases often destroy families, affect children’s behavior, and cost employers money in lost time and productivity.

Babb believes there’s a universal interest in moving away from the win-lose mentality that turns these cases into disruptive battles. “Many judges don’t like to hear family-law cases. Court should be a last resort only for those issues can’t be resolved through negotiation or mediation.”

The first question that someone will ask is who was at “fault” for all of this? We Americans spend much of our time these days attempting to fix fault for everything that has gone wrong in our society or in our lives.

Perhaps this has nothing to do with the fault and has much more to do with it is simply the way things are. Our training as lawyers teaches us to be advocates and to argue all points on behalf of our client that are to the client’s advantage. And since we never know exactly what point of evidence will be the winning point, we are of course tempted to seek out as much evidence as possible and present it to the court. Meanwhile, in family cases, we are representing clients who feel compelled to “win”. This mixture of system, training and motives frequently produces a litigation cataclysm that impoverishes everyone involved in it, and that is sometimes the lawyer too.

I think of this as the American Model of Divorce. People divorcing seem to think that they must engage in a long, corrosive and expensive battle in proving all of the little points that in hindsight sometimes seem so irrelevant to their ultimate happiness as human beings.

Perhaps if the court system were more aimed at forcing people to negotiate rather than gear up for contested hearings, more productive work could be accomplished by the parties during their divorce case. Here in Maine, it might be a great deal better if the court set up a system where at several points along the way the parties were forced to sit down and negotiate rather than at only one point along the way. In a Maine divorce case, with children, if the parties indicate during the first meeting with the court that they are not in agreement, the court will automatically send them to mediation. This will be the last time the court will ask them to go to mediation, yet the court is sending them to mediation at a time in the case when they possibly the least likely to want or be able to settle it. There are many reasons for this.  For instance, they have not have gotten used to the idea that they are going to get divorced and one or both of the parties are not ready to negotiate, one or both of the parties has insufficient information about financial and other issues to be confident enough to negotiate, or the small block of time the court sets aside for them is simply not enough time to negotiate all of the issues involved in the case. Yet, once the mediation ticket is punched, the parties are done with that as far as the court is concerned.

Of course, the parties may be afforded an opportunity for a judicial settlement conference later in their case, but that is not a given. They might get it, and they might not get it. And, surprising number of the judges express the feeling that judicial settlement conferences are not productive.

Is it any wonder so many cases wind up going to unnecessary hearings?

Maybe a system that was that is designed to send the parties to a series of negotiations rather than force them into a series of testimonial hearings would be a system that would avoid much of the angst and anguish displayed in the article above.