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Truth Is Stranger Than Fiction

by Phyllis Pollack
September 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Late last year, I mediated a “family” dispute involving facts that were stranger than fiction. It seems that Jane Jones (fictional name) had a relationship with Joseph Smith (again, a fictional name). They had two children together, although they never married. They, then, went their separate ways.
 

      However, Ms. Jones went to family court and obtained orders requiring that Mr. Smith pay child support. Years went by, and Mr. Smith did not pay the child support. So, Ms. Jones went to the Child Support Services Department (“CSSD”) to obtain enforcement of the child support orders. CSSD agreed to do what was necessary to enforce these orders for the outstanding child support which by this time amounted to about $50,000.

       It seems that Mr. Smith had a mother (Mother Smith, another fictional name) who lived outside of the city but owned a piece of commercial real estate within the city that required remodeling. So Mother Smith wired $50,000 into her son’s bank account for his use to oversee and pay for the remodeling of  her commercial real estate.

       As fate would have it, when she wired the funds into her son’s account, there was a levy on the account by the CSSD for the outstanding child support. So, CSSD took the $50,000 (meant for remodeling Mother Smith’s property) and applied it to the outstanding support obligation of Mr. Smith.

       Suddenly, Ms. Jones found herself with $50,000. Mr. Smith, quite upset at this turn of events, telephoned Ms. Jones requesting  that she return the money, claiming that it belonged to his mother and was meant to pay to remodel his mother’s commercial real property.
 

      This is where the facts get muddled.

      During the ensuing litigation, Mr. Smith claimed that Ms. Jones agreed to return the money, acknowledging that the money belonged to Mother Smith, not  to Mr. Smith. In this connection, Mr. Smith contended that Ms. Jones met him at the Child Support Services Department and agreed to and,  in fact, signed a Stipulation and Order Waiving Unassigned Arrears (“Stipulation”) which in essence, would order the return of the money to Mr. Smith.
 

      However, Ms. Jones, during the ensuing litigation, disputed this claim, contending that while she, did, indeed, meet Mr. Smith at the CSSD’s office, she never signed the Stipulation to waive the arrears, but rather her signature was forged. She further denied ever acknowledging that the $50,000 belonged to Mother Smith or that she agreed to return the money.
 

      The Stipulation did have a signature on it, which Mr. Smith claimed to be that of Ms. Jones, and was, in fact, notarized. (Ms. Jones later claimed she signed a blank notarial form). Based on the Stipulation, the court entered an order authorizing the return of the $50,000 to Mr. Smith.

       When Ms. Jones refused to comply with the court order and return the funds, claiming her signature was forged, Mr. Smith and his mother, Mother Smith, sued Ms. Jones for the return of the money.

       So here they were. . . at my offices for mediation. A father and grandmother seeking to recover $50,000 that the father owed in back child support,  because the grandmother had sent it to her son (the father) to use for remodeling some commercial real estate. Despite the fact that the mother – Ms. Jones – claimed she had used the money to pay the mortgage (to keep a roof over the children’s heads) and other expenses for the kids, plaintiffs still wanted the money returned.
 

      Throughout the mediation, Ms. Jones – representing herself - insisted that her signature was forged and that she had never agreed to return the money. She further insisted that she had signed the notarial form in blank. Nonetheless, to avoid the  trauma of trial, she agreed to take less in child support each month so that Mr. Smith could pay the difference to his mother – Mother Smith – to pay back the $50,000 over time.
 

      At the very last moment, Mother Smith refused to sign the settlement agreement: she wanted more money and sooner. So, after a full day of mediation, the case did not settle.

       I did not hear anything more about this matter until two weeks before trial. The plaintiffs’ attorney called to tell me that he had convinced Mother Smith to accept the original settlement. He asked if I would inquire of Ms. Jones whether she would agree.
 

      Over the next two weeks, the phone calls went back and forth. Initially, Ms. Jones would not agree, but then as it drew closer to trial, she agreed, but with new terms. Finally, on the day before the trial was to start, Ms. Jones agreed to the original deal. I  advised plaintiffs’ attorney of this so that he  could formalize the agreement by putting it in writing and fax it to Ms. Jones for her signature that afternoon.

      I assumed the case had settled.

      My assumption was wrong. Around mid-morning on the next day, I received a telephone call from plaintiffs’ attorney. Ms. Jones never signed the agreement but instead showed up in court. She refused to settle, claiming her signature had been forged. The plaintiffs’ attorney thinking the case had settled, had released his witnesses from their subpoenas to appear at trial to testify and had otherwise not prepared for trial. When the court heard that the case had, in fact, not settled, it ordered the parties back that afternoon to begin trial. The plaintiffs’ attorney called me to see if I could assist in some way to settle the case. I was not successful. Ms. Jones did not want to settle but wanted to take her chances at trial. She still insisted that her signature had been forged. So, trial started that afternoon.

       The next day I telephoned plaintiffs’ counsel to learn the outcome. I was told that once under cross-examination, and  sworn to tell the truth, Ms. Jones admitted that she had, indeed, signed the Stipulation – it was not a forgery – and that she had, indeed, acknowledged to both plaintiffs that the money belonged to Mother Smith  and that she would return it.
 

      Then an even stranger thing happened. The plaintiffs’ attorney told me that based on this admission, he was about to move the court for a judgment  against Ms. Jones and in favor of his client Mr. Smith  when his client Mr. Smith stopped him and asked to confer  privately with him. Mr. Smith – about to obtain a judgment for $50,000 against Ms. Jones – wanted to renew the settlement proposal to Ms. Jones (that is, she simply pay less child support every month so that he could  pay the difference to his mother, Mother Smith). The attorney, although quite taken aback by his client’s instructions, offered the settlement to Ms. Jones and this time, she accepted, on the record in open court. Mr. Smith’s rational: “she is still the mother of my kids.”

       What a strange ending! During the mediation, Ms. Jones had the plaintiffs’ attorney convinced that her signature on the stipulation was a forgery. From the facts, it appeared to Ms. Jones that the plaintiffs were cold, heartless and selfish for wanting the money back that was owed and in fact was used to take care of the kids. But, in the end, it was the plaintiff  Mr. Smith who had the “heart” and the defendant Ms. Jones who was making it all up for reasons known only to her.

       Credibility is a hard thing to judge. You don’t always get it “right”.  Trials can be dangerous; that is why it is always better to settle. 

       . . . 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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