I strongly believe the issue of the cost of the mediation process should be adressed in the beginning. The advantage: The parties develop a solution concerning this point. Confidence can grow. It shows they can find a solution for their real problem.
At the end of the mediation process I regulary ask, if everthing has been adressed.
Mediation can only be sucessful when both parties are satisfied. Your reputation depends on that. So it´s more how you do it, than what both parties achieve.
Ted , Century City CA 07/26/07
Thanks for the article, Mike. Seems like the result was driven by the confluence of these factors: (a) the Joyce Estate's representation, (b) their "bad guy" position from having bullied the professor for years and then caved completely, and (c) the fact that "costs and fees" is such a standard item to be addressed in settlement agreements, to avoid this very situation. Your ethics question is very interesting. Part of the tension is the question whether this was a set-up. Perhaps a mediator could have asked how the professor planned to handle the subject of costs and fees. It may have been an oversight, which could then be addressed. But it may appear to be intentionally omitted, and then you are back to your ethical quandary, albeit with a clear notion that one party is trying to hoodwink the other. Perhaps at that point the mediator could have said, "I am not sure that I am comfortable facilitating an agreement based on the other side's mistaken belief that it will end the dispute, when in fact it merely trades this dispute for a new one, and potentially exposes the opposing counsel to legal risk with the client." Some may say that this comment alone goes too far, interfering with the parties' ability to reach an agreement. I guess my view is that the parties haven't really reached an agreement, at least not on the same thing -- the professor may have a piece of paper that can be enforced as an agreement, but the Estate arguably would not have signed the piece of paper understanding that it was liable for costs and fees. And that takes us full circle -- given that this issue is so universally addressed, a court is not likely to sympathize with a party represented by counsel claiming to have been duped. Hence the subject of my response here -- caveat lawyer.
Charles Parselle, Los Angeles CA 07/21/07
Fascinating case, thank you for bringing it to our attention. And indeed cautionary for those mediators who bring a draft agreement - blank as to the substantive settlement terms but containing standard boilerplate language that includes 'each side to bear own attorney fees and costs.' Perhaps this practice, intended to be helpful, is not without risk. Because the situation described certainly smells like prior deliberation. And why not? The word 'mediation' is not a synonym for peace and love, but is short for 'mediated negotiation.' And what is negotiation? War waged with kisses.