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Mediate.com

Do I Really Want To Work For “Free”?

by Phyllis Pollack
September 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack
The Los Angeles County Superior Court is the largest county court system in the United States. Unlike many other jurisdictions throughout the country, it provides free mediation services. The mediator provides preparation time plus three hours of actual session time for free. Thereafter, if the parties wish to continue, they may do so but must pay the mediator her market rate.

For many years, I have been a member of the court’s “free” panel as a way to give back to the legal profession. And, for the same number of years, I have debated with myself, whether I should remain on the panel. While I am quite willing to provide my services for free to those who truly cannot afford to pay for mediation, this has rarely been the case; more often, my idealistic motivation for being on this panel has been abused and misused by litigants and counsel who earn more than I do!

Last week’s mediation was another example. The mediation was set for 10:00 a.m. At 9:00 a.m., plaintiff’s counsel called to advise her client did not want to appear and asked if we could reschedule. However, both defense counsel and the defendant were already on their way to my office and they said “no.” So, plaintiff’s counsel appeared without her client. Counsel did not even offer to make plaintiff available by telephone. However, counsel told us that she knew what were the plaintiff’s parameters in settling, had “authority” to settle, and so would negotiate to see if the matter could be resolved.

As both defendant and her counsel were here already, they decided to give it a try rather than simply walk out. So, we started negotiating.

As you might guess, as of the end of the third and final “free” hour, the matter had not settled. (Naturally, plaintiff’s counsel did not want to continue on). Why – the plaintiff was not here. Throughout the mediation, the plaintiff’s attorney had to keep calling the plaintiff to discuss the latest proposed offer and to obtain authority and/or wait for plaintiff to call back. Despite counsel’s comment that she had “authority” to settle, in truth, she did not have “full and complete” authority! As always happens at mediation – proposals different from those envisioned beforehand are made, necessitating a call to the client and a lot of waiting for the “callback” from the client. Not an ideal situation!

Why did this situation occur? Because it was “free.” I learned a long time ago that when folks do not have to pay for something, they do not become invested in it and thus do not take it seriously. As they have put no money into the deal – they believe they have lost nothing by sloughing off the appointment: if they had to pay a cancellation fee, they would think twice about not showing up. They do not see other people’s time – especially the mediator’s – as a valuable commodity, and so they make light of it!

While granted – no one forces me to be on this panel, I have stayed on it for those one or two litigants who are truly improvised and cannot afford to pay. But so far, out of the 200 or so “free” mediations I have conducted, I have run into such litigants less than 10 times. Most of my experiences, unfortunately, have been like last week’s in which one or more parties do not take it seriously.

So. . . the morals of the story: (1) mediation can be extremely frustrating when one or more parties do not show up at a mediation and makes it difficult to resolve the matter; and (2) I am going to seriously re-think my commitment to “give back to the legal profession” via “pro bono” mediations for court!

. . .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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Website: www.pgpmediation.com/index.htm

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