Richard Morley Barron Mediation

A TALE OF TWO LAWYERS

Our first lawyer, Peter Proff, receives a notice from the court that, pursuant to MCR 2.411, his new case has been ordered into mediation.  Peter is pleased because his client, the plaintiff, was reluctant to litigate and would like to “cash out” and get on with her life without the stress and expense of litigation.  Peter realizes that because mediation was court–ordered he does not have to worry about looking weak by suggesting early settlement negotiations.  He believes that a good mediator should be able to settle the case with a fair payment to his client.

Peter immediately contacts opposing counsel, Debbie Doe, to decide upon a suitable mediator.  Both counsel agree to retain Paul Placid, an experienced and well-respected local mediator who charges $190 per hour.

Paul contacts both sides by phone to learn about each side’s view of the case, to determine what additional information is really needed, to discuss mediation strategy and to set a mutually convenient date in the near future.

Both sides appear with their clients on the date set for mediation after having previously had a lengthy conversation with them about mediation and how to use it as an effective settlement tool.  After a few hours of bargaining the parties reach a formal settlement of the action.

Result for Case #1: The case is over and both clients are delighted and very pleased with their attorneys.  The mediator spent about five hours in resolving the case at a cost of about $500 per party.

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Our second lawyer, Paula Procrastinati, also receives an order in her case requiring mediation under the court rule.  She, however, becomes angry and tells herself that the case will never settle and that mediation is stupid and expensive.  Rather than call Barney, her opposing counsel with whom she is feuding, she disgustedly throws the Mediation order into her in-basket and continues to work on her current case. 

When the mediation date arrives Paula is twenty minutes late.  She almost immediately gets into a shouting match with counsel opposite and states that she is about to file a motion for summary disposition.  Paula instructs her client that he is to say nothing and let her do all the talking “to protect him”.  She basically repeats all of the allegations in her answer and accuses Barney of acting in bad faith in not accepting her “generous” offer.  In spite of the prodigious efforts by Hy, Paula refuses to increase her initial settlement offer in spite of a strong legal and factual presentation by her opponent.  Not surprisingly, the case fails to settle.

Result for Case #2: There is no settlement.  The substantial time devoted to mediation was unproductive and both sides have to prepare for trial and possible appeal.  Both the lawyers are frustrated and their clients are both unhappy with their counsel. The mediator spent about twelve hours trying to resolve the case at a cost of about $2,000 per party.

R.M.B.