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Mediate.com

Article on Advocacy

by Phyllis Pollack
March 2015

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Several months ago, Joan Kessler asked that I provide an article to be included in the ADR issue of The Advocate. Since then, I have pondered on what I should write about. For inspiration, I went to my weekly blog which I have been posting since August 31, 2006. Reviewing them, I noticed a recurring theme: preparation for mediation. At least twice a year, I posted vignettes about mediations gone badly due to a lack of preparation. Because preparing for mediation is so important, I would like to share them with you, as my contribution to this ADR issue of The Advocate.

Preparing For Mediation: Something To Ponder

Alexander Graham Bell once said, “Before anything else, preparation is the key to success.” We have all heard the adage to the effect that success is 99% hard work and 1% luck.

So, too, with mediations. To reach a resolution during a mediation, each party must prepare for the mediation. The failure to do so can lead to a frustrating end to the mediation.

This was brought home in a recent mediation I conducted. It involved a case in court and so both the plaintiff, defendants and their respective attorneys were at the mediation. Due to the nature of the action, the mediation was conducted solely in separate sessions.

During my first session with each party, I explained about the mediation, its purpose, my role, the process and what was hoped to be accomplished. However, as the day progressed, it became clear to me that the plaintiff truly did not understand why she was there, or what was my role. When the plaintiff bluntly asked me, “whose side are you on: it sounds like you are against me,” I quickly understood that the plaintiff had not been prepared for the mediation. As we discussed the various issues in the case as they affected liability and damages, I could see that these were all new to the plaintiff; she had neither been counseled about the strengths and weaknesses of her case, nor about the several different possible outcomes at trial, nor about their respective probabilities and their consequences. More importantly, the case involved issues of constitutional dimension meaning that this case probably would not end at trial but would move on to the appellate courts and thus continue for years. Practically speaking, assuming the jury awarded money damages to plaintiff, she would not receive the money for years since defendants would post an appeal bond. All this, too, was new to the plaintiff. She did not understand that her case involved constitutional issues that may prevent her from receiving any monies awarded by a jury for years and years to come or more importantly, that her case could take on a life of its own in which she would be caught up for years to come; her attorneys wanted to make law on her case, leaving her without closure for many years.

As you can surmise, although the defendants made an offer that probably exceeded what any jury would award, the plaintiff rejected it. Why? She had unrealistic expectations due to a lack of preparation for the mediation. She was making decisions without having been fully informed about all of the issues, the goals of counsel versus her goals and the consequences of each.

Whether this case will eventually settle. . . I do not know. But what I witnessed was a reasonable settlement offer being rejected by a plaintiff who did not appreciate the nuances of mediation due to a lack of preparation.

Preparation: A Necessary Must

Earlier this week, I mediated a case between a homeowner and a general contractor about an unsuccessful home improvement. The general contractor built two patios, pouring the concrete without checking the weather forecast. Later that evening, it rained heavily causing the concrete not to “cure” properly. While the contractor attempted to correct the problem by spreading another product along the top of the concrete, this “fix” did not work. As a consequence, the homeowner sued all possible parties, and the parties appeared for mediation.

The problem was that the parties were not prepared for mediation. While everyone agreed that there was a “problem” with the larger of the two patios, no one had employed an objective third party to provide a complete diagnosis of the “problem” and all of the possible remedies. Rather, the homeowner, in an attempt to keep costs down, had obtained only informal evaluations from some friends – none of them complete. The defendant responsible for the product that was spread on the concrete as a “fix,” had hired an expert but that expert was concerned only with his client’s product, not the overall project and certainly, not how to remedy the overall “problem.” The homeowner was so upset with the way the job turned out, that the homeowner would not allow the contractor onto the property to inspect the patios and assess the “problem.” The contractor did not send an expert in its stead to assess the situation. As a result, the contractor did not know the contours of the “problem” much less how to remedy them.

So. . . here were the parties at mediation attempting to resolve a dispute that was not clearly defined. None of the parties had all of the facts: they neither knew exactly what was causing the defects on the larger patio nor the possible remedies for the defects. Yet, the homeowner was making monetary demands based on the informal and incomplete evaluations given by friends. It reminded me of the game “pin the tail on the donkey” in which the players – blindfolded – attempt to pin a tail on the picture of donkey pasted on a wall. Here, the parties were attempting to “pin” damages on an ever moving and not fully known factual pattern – because no one had taken the time to ascertain the facts. “Resolution” was an ever moving, ever evasive target.

Needless to say. . . the case did not settle. How could it? No one knew the exact parameters of the dispute, and thus of the potential liability. One cannot determine damages without knowing first what happened and thus where and to what extent the liability attaches.

Consequently, a valuable opportunity – to settle at mediation – was wasted. This is a matter that should have settled at mediation: with a full diagnosis and prognosis, it would have been relatively straightforward to work out a resolution.

The moral of this tale is that before attending a mediation – be prepared. Conduct the necessary factual investigation and determine the outer boundaries of the dispute and of the various remedies. Know the facts – know where the liabilities lie and what the possible damages may be. Mediators often work magic but they cannot create a resolution out of nothingness: the parties have to come to mediation with more than just an ephemeral desire to settle.

Understanding Mediation Beforehand

Predictably, my blog draws on my experience as a mediator. Once again, over the last few weeks, I have conducted more than one mediation where time was not taken prior to the mediation to explain to a party what mediation is all about: its process and what to expect. I learn this truth when a party asks me to explain why she is sitting in my office, what is “mediation”; are there any “rules”; and if so, what are they et cetera. Sometimes a party refers to me as a “judge.”

In response, I take the extra time to explain what is mediation and what it is not. I explain the key concepts of confidentiality, voluntariness and self-determination. I explain the processes involved, the difference between joint and separate sessions and that upon reaching a resolution, a settlement agreement will be drafted and executed. As importantly, I explain that in our technological world, mediation is an anachronism. It takes time: settlements do not occur in a nanosecond or with a click of a mouse.

I often find that these mediations do not go as well. Because a party has come to mediation not knowing what to expect, she has not given much thought to the various issues in the matter and how she would like to see them resolved. She not really thought about settlement. As a result, she may not be fully prepared to settle then and there. Often, additional factual information is needed. Consequently, a resolution is not reached in a matter that otherwise should have been resolved.

Time and time again, each of us have had to sit down and mentally think about how to approach something: we plan ahead. We play a mental game of chess. This visualizing needs to occur with mediation. Prior to the actual mediation, each party should learn what mediation is about, what to expect and should think about the issues and the different ways she would best like to see the issues and the whole matter resolved.

By understanding the concept of “mediation” beforehand and being fully prepared for it, a party’s chances for success will be much greater.

Preparation And Communication

In November 2006, I wrote a blog entitled “Preparing For Mediation.” Its essence was that in order for a mediation to be successful (i.e. resolve the dispute), each party must prepare for the mediation. Otherwise, the mediation will end in frustration and disappointment.

I visit this topic again because it bears emphasis. If each party to the dispute is not apprised of at least the major strengths and weaknesses of her case prior to attending the mediation (i.e. communication and preparation), the mediation will, in all probability, be fruitless and a waste of time.

Why is this topic so important? Because it happened again last week. Once more, I was mediating a matter filed in court so that the plaintiff, defendant and their respective counsel were all present.

Evidently, several weeks prior to the mediation, the defense attorney had a conversation with one of the plaintiff’s counsel in which she pointed out that the plaintiff did not have a case: the law plaintiff was suing under did not apply to plaintiff. The plaintiff attorney responded by stating she would look into it to determine if, indeed, whether the statute was applicable to her client.

Well. . . it seems that the plaintiff’s attorney apparently did not apprise either her client or the other attorneys in her firm about this conversation (i.e. lack of communication). Another attorney appeared with plaintiff at the mediation and due to this lack of communication (and perhaps lack of preparatory research), was wholly unprepared for what happened at the mediation.

I started the mediation with a joint session. After the plaintiff and her counsel made their introductory remarks, the defense attorney presented her view that plaintiff did not have a case at all because the statutes at issue were not applicable.

I could tell from the look on the face of both the plaintiff attorney and her client that they were completely taken aback by defense counsel’s words: these words were all new to each of them. The attorney was completely unaware and unprepared for the notion that her client might not fit within the statutes and thus might not have a case. Judging by the look on the client’s face, this point had not been discussed with the client.

Needless to say, the mediation went nowhere fast. The plaintiff’s attorney expressed a need to research the statutes and case law and confer with her colleagues about this new turn of events. No commitments could be made by plaintiff then and there. While the defendant was prepared to settle for a minimal sum, neither the plaintiff nor her client could so quickly and completely change their mindset to accept the fact that plaintiff had no case. They had walked into the mediation an hour earlier thinking they had a great case! How could they mentally and emotionally travel so quickly from having a “great case” to “no case!” They could not and to think otherwise, would have been unrealistic. Both plaintiff and counsel needed to think this through.

So. . . a valuable opportunity to resolve a dispute was lost. The plaintiff walked out angry and frustrated, and her attorney probably walked out feeling the same way . . . but for other reasons.

I do not know whether this matter will settle. There are various reasons why it should settle. But the end result is that a matter that could have been settled at mediation will proceed forward (at least for a little while) causing the parties to incur additional (and perhaps unnecessary) time and expense in litigation . . . simply because not everyone was prepared for the mediation

Be Prepared

Even for a mediator, mediations can be very frustrating. I had a mediation the other week that falls into this category. The defendant and his counsel were willing to settle, and, in fact, wanted to settle. But the matter did not settle. . . because of plaintiff’s counsel. She had neither researched the law nor investigated the facts and so could not realistically evaluate the case for the benefit of her client.

The matter involved an alleged error by an attorney (who is now the defendant). The attorney while representing the plaintiff had obtained a judgment against a third party but in doing so, had used the third party’s wrong name. Although the attorney recorded an abstract of the judgment, the title company did not note the judgment when the third party sold his residence. Thus, the escrow closed without the plaintiff collecting any sums on her judgment.

Based on this fact, plaintiff sued her attorney for negligence. However, neither plaintiff nor her now attorney had any knowledge of what actually transpired during escrow including the amount of money exchanging hands, or even if escrow, indeed, would have closed had the judgment come to light. Rather, in conclusory fashion, plaintiff and her now attorney claim the judgment is “uncollectable.” Again, when asked what evidence they have to present at trial, the attorney responded that it is not her burden to show this, and besides, her client – the plaintiff – has been “told” that the third party has left the country and further, her expert will testify on this issue. When presented with facts indicating that perhaps, the third party does have other assets, both the attorney and the plaintiff simply exclaim that they do not believe these facts. Again, neither plaintiff nor her attorney has made any attempt to determine if, indeed, the third party has, indeed, left town, or instead, has assets that the judgment can reach. Rather, they believe it was the defendant’s (the attorney that plaintiff has just sued) duty to do this.

As you may surmise, plaintiff claims the judgment is useless because it does not have the correct name of the third party on it. When asked if any efforts have been made to correct the judgment, the attorney insists it cannot be done. When the contentions of the defendant as to how to correct the judgment are discussed with the plaintiff’s attorney, the latter, again, verbally “shrugs” her shoulders, claiming defendant should do this, not her or some other attorney.

In sum, in response to defendant’s multiple contentions about either the law or the facts, the plaintiff’s lawyer verbally “shrugged” her shoulders, opining that it would be the subject of expert testimony, or that it is not her burden of proof or that the defendant should have done it.

Because neither plaintiff nor her attorney had conducted any investigation into the facts, the law, or plaintiff’s burden of proof for trial, their demand for settlement was very high – too high for the defendant to agree with, given the strengths and weaknesses of defendant’s case. Plaintiff believes that her expert will save the day and win the trial for the plaintiff.

But, from the little bit I know about expert testimony, such testimony has to be based on facts, not speculation. So. . . without the facts and supporting documents, the expert may not even qualify as an expert much less as a white knight riding in to save the trial!

I dwell on this experience because it poignantly demonstrates the necessity of preparation: one cannot realistically expect to settle a matter unless she knows the strengths and weaknesses of her side of the matter and of her opponent’s side of the matter, and one will not know these things without conducting an investigation into the facts and the law. Without such preparation, any attempt to settle is futile as it is based on unrealistic expectations and unrealistic views of the potential benefits/risks of proceeding to trial.

So. . . to quote the Boy Scouts: “Be Prepared!” I cannot emphasize this enough. Be Prepared! Be Prepared! Be Prepared!

Conclusion

Hopefully, by now you have gotten the point: come to mediation prepared. Otherwise, you will be doomed to failure.

As I say at the end of my blog.

. . . 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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