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Mediate.com

Mediation Gone Wild

by Phyllis Pollack
November 2008

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Several months ago, I read an interesting article by Greg Katz in the Los Angeles Daily Journal entitled “Neutral to Take “Mediation Gone Wild” On Tour” (August 29, 2008). It seems that Michael D. Young, a neutral affiliated with Judicate West in Los Angeles, wrote an article in Alternatives (Vol. 25, No. 6, June 2007) about a civil dispute that went totally out of control. The article has brought Mr. Young his “15 minutes of fame.”

       The civil dispute epitomizes the adage that “life is stranger than fiction.” As Mr. Young discusses in his article, Joseph Francis is the founder and auteur of “Girls Gone Wild.” To film a sequel, Mr. Francis rented local houses and condos in Panama City, Florida during Spring Break 2003 and invited unidentified minor girls to be filmed, baring their breasts and engaging in various sexual acts.
 

      When the parents found out, they sued: Doe v. Francis, Case No. 5:03CV260 (N.D.Fla.) A criminal action was also filed, and while it was pending, nothing much happened in the civil suit.

       Then, in October 2006, United States District Court Judge Richard Smoak ordered the parties to mediation, requiring that they jointly select a mediator and share the cost of the mediator’s fee equally. He further ordered which parties must attend the mediation and that their failure to do so would result in the imposition of sanctions. The order also gave the mediator the authority to control the procedures to be followed in mediation and reaffirmed that confidentiality would attach to the process.

       The parties selected a mediator and agreed to a two-day session. On the day after the second session of the mediation, plaintiffs filed a motion for sanctions against defendant Francis.

       It seems that on the first day of the mediation session, the plaintiffs arrived on time. Francis and his attorney arrived four hours late allegedly because Mr. Francis’ private jet from Los Angeles was “running late” due to his Los Angeles’ attorney’s schedule. However, that L.A. attorney did not appear at the mediation.
 

      When Mr. Francis and his current counsel arrived, they were shown to a separate conference room as there was to be no joint session. Mr. Francis was wearing sweat shorts, a backwards base-ball cap and was barefoot;

      “. . . He was playing on his electronic devise [sic]. As [plaintiffs’ counsel] began his presentation, Francis put his bare, dirty feet up on the table, facing plaintiffs’ counsel. [Plaintiffs’ counsel] said four words, “Plaintiffs were minor girls,” when Francis barked, “Are the girls minors now?” Continuing [Plaintiffs’ counsel] said, “Plaintiffs are minor girls who were severely harmed by defendant.”

      “ Francis then erupted. Don’t expect to get a fucking dime – not one fucking dime!” This was Francis’ mantra which he repeated about fifteen times, during his tantrum that ensued.”
                                                                        . . .
     

      “As [Plaintiffs’ counsel] was walking out of the room, Francis got up and faced off with [Plaintiffs’ counsel]. Right in [Plaintiffs’ counsel] face, Francis barked, “I’m going to ruin you, your clients, and all of your ambulance chasing partners!”  
                                                                        . . .
     

      “Francis then made the only offer he was to make that day, “suck my dick,” Francis shouted repeatedly, as plaintiffs’ counsel left the mediation room.”
     (Id. at Alternatives at 2.)

        Based on the above, the motion sought an order that Francis pay sanctions and behave civilly.
 

      The court conducted a hearing on the motion, continuing it for purposes of holding an evidentiary hearing one-week later. Although both parties requested that the matter be kept under seal, the judge refused. The court further directed defendant Francis to appear personally at the evidentiary hearing dressed in proper business attire and abiding by the rules of etiquette. The court also warned Francis’ counsel that if, at the hearing, it determines the allegations of plaintiffs to be true, Mr. Francis may well end up in jail.

       One week later, the court conducted the evidentiary hearing. The court took testimony of witnesses as to what transpired during the mediation in terms of everyone’s conduct and communications. Mr. Francis was forced to testify and, according to his own attorney, may have committed perjury.

       Following this evidentiary hearing, the court found that defendant Francis “willfully and contumaciously violated” the pertinent provisions of the Court’s Scheduling and Mediation Order. (Id. at 4) As such, the court determined that Francis’ behavior could not be protected by the mediation privilege. Concerned that a financial sanction alone would not have the appropriate effect on Mr. Francis, the court ordered both that he reimburse plaintiffs their attorney’s fees and costs and ordered Francis to be incarcerated. But, the court delayed the commencement of the jail sentence until 4:30 p.m. the next day, ordering the parties to participate in another mediation session and to give defendant Francis time to participate in good faith and in appropriate business attire at such a session. The court ordered that defendant Francis would be released from jail “when the mediator certifies in person to the court that Mr. Francis has fully complied with this order and has participated in the mediation in good faith.” (Id. at 5)
 

      On the next day, the parties mediated and reached a settlement in principal. However, an impasse was reached regarding one of the terms of the settlement during the drafting of the agreement. The court viewed this impasse as an attempt by Francis to renege on his commitment to settle and so ordered Francis to report to the U.S. Marshall for incarceration. (The court had suspended the jail time pending the settlement.) When Francis failed to surrender as required, the court issued a warrant for his arrest, and Francis was arrested. The court issued an order to show cause why Francis should not be held in criminal contempt, setting a hearing date for several weeks later. The bases of the criminal contempt were his alleged perjury at the evidentiary hearing and his failure to surrender to the U.S. Marshalls as ordered.

       The next day, the civil case finally settled in full. But defendant Francis remained in jail pending the criminal contempt charges. Francis eventually pleaded guilty to violating the order to surrender to the U.S. Marshall. The first charge (that is,  committing perjury at the evidentiary hearing) was dismissed after his attorney submitted an affidavit stating that he did not believe Francis’ March 30 testimony was intentionally false. Based on the one charge, Francis was sentenced to 35 days in prison with credit for time served and fined $5,000.

       Needless to say – this episode raises a multitude of issues and concerns such as mediation confidentiality, the voluntariness of mediation, the self-determination of mediation, the admissibility of evidence,  the place, if any, of coercion in mediation, the concept of negotiated resolutions, good faith in mediation, and the  role of the mediator in the process as well as his/her immunity in this process. To address these issues would take quite a few more blogs. But I raise them in my continuing effort to give you. . .

       . . . Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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