It is a truism that our greatest weaknesses can also be our greatest strengths. We all have something that we'd like to see changed. We're too easily startled by the unexpected. We don't have easy access to our own emotional lives. We're short-tempered. We speak softly, tentatively, when we'd rather be bold and appear confident. We're confident but we too often appear arrogant. We enjoy the sound of our own voice and tenor of our own opinions better than those of others. We have a difficult time seeing both sides of the issue. We'd rather be right than happy.
Are you with me? As a friend who is a therapist is fond of saying, we're all some kind of crazy. And as one on those 12-step programs regularly notes, we're just lucky not to all be crazy on the same day.
The Mediator Must Be Crazy!
I'm doing what I always do to prepare for a mediation - reducing the parties' positions, relationships and events to a single page by making the verbal graphic. I'm on page four of the single-spaced letter brief drafted by a seasoned attorney at am AmLaw 100 firm. It's written densely but as clearly as humanly possible. Still, understanding it requires the application of all 25-years of my commercial litigation knowledge, experience and training.
I'm pretty sure I've got the basic idea, have identified the central legal and factual issues, understand the contractual relations of the parties and comprehend (dimly but well enough) the statutory bases of their conflicting claims. I'm assuming (because I don't read ahead) that there's probably only one page to go. I'm reading the brief as a .pdf so I click on button that lays out all of the pages of the document as small icons in the right margin.
It's fourteen pages long! Single spaced! There's approximately $10 million at issue with four real parties in interest. One of the other parties, also represented by am AmLaw100 firm, has given me a shorter brief, but has attached to it a 30-page record. The third is waiting for me at my "virtual office" in Beverly Hills, fed-exed there the night before.
And that's the moment the mediator cracks.
I've been here before. I have written an irritable email and my finger is hovering over "send." Every rational fiber of my being is shouting no no no no no no no. Still, my central weakness, often read as intemperance, sometimes spun as authenticity, is about to win again.
I'd like to remind the parties that the Superior Court may only recommend but not order parties to mediate a case with an amount in controversy that exceeds $50,000. California case law prohibits the Court from ordering the parties to pay a neutral to mediate any case regardless of the amount in controversy. That being the case, mediation in California remains voluntary for any matter with an amount in controversy that exceeds $50,000.
For reasons that frankly mystify me, the highest quality law firms in the City are voluntarily asking a randomly appointed pro bono mediator to assist them in settling a matter with an amount in controversy of $10 million based upon a factual record of astonishing complexity as applied to a body of case and statutory law that has required a fair amount of study by a commercial litigator with 25-years of practice behind her.
Had I read your briefs before today, I would have called each one of you to inquire about your intentions. I have, unfortunately, already spent three hours summarizing one of your submissions, which disinclines me to make the additional effort to contact you separately.
In the few cases I have been asked to mediate free of charge where the amount in controversy was in eight figures, either one of the parties possessed an unreasonably inflated idea of the value that could be wrung from a piece of litigation (something I do not believe is likely here) or counsel for the parties felt the need to satisfy the Court's recommendation that they mediate a matter they did not believe had any chance of settling.
If the latter explains your use of the pro bono panel for this case, I'd ask that you allow me to provide the documentation you feel you need to fulfill your perceived mediation obligation in abstentia. If there is an explanation for your use of the pro bono panel that eludes me, I ask that one of you please call me tonight. /*
I'm pretty sure this disqualifies me from continuing to serve on the Los Angeles Superior Court Pro Bono Panel.
Because it's Sunday, and because I always loved Saturday movie serials that ended with Pauline strapped to the train tracks with a locomotive bearing down upon her, I am going to delay to my readers the satisfaction of getting the then what happened?!? answer until tomorrow.
Hint: it was a good thing!
*/ Email changed only in its case-specific details to protect the parties' confidentiality.