Why Can’t We Settle Some Types of Cases?

Freshly minted lawyers will rarely, if ever, crack open a legal case reporter. They will not have to search for the most up-to-date supplement or “pocket part” for reporters to ensure that legal research includes the most recent decisions. These new attorneys will never spend hours in the “stacks” of row upon row of reported decision books. Legal research, as with every walk of life, evolved with computer technology. More information now is available with a few keystrokes at your desk than in any law library.

One such development in this regard is the daily electronic reporting of judicial decisions. Paper Advance Sheets announcing recent legal decisions or developments used to be published monthly or weekly. We no longer need to wait even 24 hours to receive this data. It appears in our e-mail accounts each morning as a service of bar associations or other professional organizations.

When we lived in the paper society, I would carve out time to review Advance Sheets. When a few stacked up addressing different topics, they would serve as a physical reminder that attention would be required. Upon the transition to the more frequent tendering of electronic information, I confess that I found it easier to ignore this potentially vital data. Once the e-mail was moved to its proper electronic folder, it could fall into the “out of sight, out of mind” category.

In an effort to change my approach and develop a routine to more regularly review these documents, I challenged myself for the first six months of 2018 to review, each day, the reported decisions and opinions in the TBA Reports. Tennessee attorneys will know this daily publication issued by the Tennessee Bar Association which includes the prior day’s decisions from Tennessee state trial and appellate courts as well as other legal developments such as ethics rulings and rule changes. Most state bar associations publish similar works with the same frequency. While I was not 100% successful with the daily review, I did remain fairly punctual. Hopefully, this new “routine” will stick.

With this more regular review, my mediator’s eye discovered an intriguing dynamic. I found that two types of civil cases proceeded to court disposition much more often than other types of cases. First, an explanation of how this conclusion presented itself. I sought to identify any such trends as mediator efforts could be focused in these areas. I eliminated criminal reported cases. I also did not include family law matters as they present unique issues oft-times necessitating court disposition and require specialized mediator skills. Finally, I eliminated from consideration worker’s compensation cases as there exists fairly unique administrative and legal processes which encourage appeals in these cases. What should remain would be the bulk of civil litigation: contract, torts, labor and employment, environmental, intellectual property and property law.

Based on observation and not a formal scientific study, I found a disproportionate number of reported decisions addressed dissolution of private businesses (mostly family owned businesses) and contested probate matters. Dissolution of private business cases and probate actions are sent to mediation as frequently as all other civil cases.

Why do parties litigate these types of cases to conclusion in courts when the vast majority of civil cases resolve short of dispositive motions or trial? What unique facts and circumstances, if any, explain this situation? What steps can and should courts and mediators take to assist litigants in such matters to discover settlement alternatives?

The following reasons, alone or in combination, may begin to explain why business dissolution and contested probate cases settle less frequently than other matters.

1. Emotionally Charged Clients

Privately held business disputes often place long term partners, friends and family members against each other. All parties believe that they have been wronged. Relationships have been destroyed and any trust has been lost. Dissolution of a long-standing business is akin to splitting up a family with significant entanglement of business and personal lives.

Contested probate matters place family members and extended family members directly in conflict. They can frequently involve children of a prior marriage against step parents where relations already have been strained. These litigants bring long standing emotional baggage with them into a process where they may still be grieving. Somehow, they each believe that only they know and understand the final and true wishes of the deceased.

In either type of dispute, litigants may yield otherwise rational decision making to emotionally driven choices based on hurt feelings, greed, or revenge. Even experienced attorneys who routinely represent clients in such matters may not be able to break through the emotional pieces which could cloud judgment.

2. Emotionally Charged Legal Issues

The legal issues to be decided in dissolution and probate cases could also be emotional for litigants. The dispassionate allocation of assets and liabilities from a balance sheet may become quite complex where litigants retain emotional ties to the property divided. These legal determinations represent the end of an enterprise or possibly the last decisions to be made regarding the deceased. Litigants may simply not be prepared for finality. Alternatively, the legal issues could also relate to control over future handling of affairs or business decisions. Again, the absence of trust or sense of rejection may bring emotional challenges in accepting these results. While such matters represent necessary legal determinations, addressing them might only be accomplished through emotionally charged thought processes.

3. Fact Specific and Fact Intensive Analysis

The legal determinations required to be addressed in probate and dissolution of business cases would be plain to the lawyers. Nonetheless, each case of this type is necessarily, incredibly fact dependent. If these matters reach litigation, it can be assumed that each party brings very different versions of the facts. The parties most probably do not even agree upon which facts will be important to decide the issues. As a consequence, no party will be well set up to secure summary judgment or other dispositive relief prior to trial.

When viewed within this framework, it is understandable that these type of cases remain quite contentious. The personalities, issues to be decided, and inability to accept adverse positions prior to a full trial combine to preclude resolution. Yet, courts, mediators, and legal practitioners address challenging cases all the time and still find the ability to routinely reach settlement. Divorce cases present similar or even greater emotional issues and those cases quite often reach an agreed upon resolution structure. Complex business cases present tremendous entanglements of relationships and those cases quite often reach settlement.

Perhaps one key difference presented in dissolution of privately held business and contested probate cases is that they often present simultaneous challenges in the areas of business concerns and emotional issues. The parties might require a mediator well trained and skilled to assist in both these areas. Many family law mediators might be well equipped in regularly addressing the emotional aspects, but perhaps do not often encounter the complex business issues. Similarly, business law mediators who regularly address civil cases involving contracts and property law issues may be lacking the skills to meaningfully address the emotional challenges.

A cautionary note for practitioners is to carefully consider the proper mediator best positioned to assist given the complexities of the case presented. Invest the time to find the mediator who can handle both sides of the equation in these cases. A cautionary note for courts which may assign mediators to such cases is to work closely with the local bar associations to identify those mediators with the requisite training, experience and skill sets to work with litigants in these complex cases. A cautionary note for mediators is to candidly evaluate our own skills and determine if we are a correct fit for the particular assignment (We never want to turn away business, but we do want the litigants to succeed in mediation!).

Neither Snow Nor Rain Nor Crying Baby. . .

The United States Postal Service (the “Post Office”) boasts a rich and proud history — deservedly so. From its origins in 1775 with Benjamin Franklin as the first Postmaster General, the Post Office has faithfully served the United States and its citizens since the inception of the country. Franklin’s vision of the Post Office as a reliable, efficient, and affordable resource for communication has been achieved. Even with the current fiscal questions, the Post Office strives to live up to its unofficial motto: “Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds”. Even if those appointed rounds included sending babies and children through the mail — with appropriate postage, of course.

Yes. The Post Office accepted and delivered children between 1913 and 1920. A little history provides perspective and a little armchair psychology fills in the “How could that possibly happen?” reaction.

The Post Office initially limited itself to the delivery of letters and small parcels. Larger packages and goods were left to private delivery services. Such private services flourished in the 1800s. In the early 1900s, the Post Office finally recognized the value of expanding its well-established, efficient delivery network. The Post Office understood the need to serve rural communities which were ignored by the delivery services. The Post Office placed together this network and need to create Parcel Post.

Parcel Post operations began on January 1, 1913 with the Post Office then offering to deliver larger packages through the mail. Thereafter, it took but a few weeks for someone to mail a baby through Parcel Post. Jesse and Mathilda Beagle mailed their 8 month old son, James, to his grandmother, Louia Beagle. Postage cost 15 cents and the Beagle parents, as responsible as they were, insured the package for $50. The Post Office mail carrier, Vernon Lytle, reported the package as “well wrapped” and ready for mailing. James was mailed between two towns in Ohio. Further details such as the time between pick up and delivery, where postage was placed on the baby, and whether anyone fed or cared for the baby are not known.

In 1914, the mailing of 4 year old Charlotte May Pierstorff through Parcel Post gained national attention. The Pierstorffs mailed their daughter via train to the grandparent’s house 73 miles away. Postage was less expensive than a train ticket. The Pierstorff story became so popular that it was made into the children’s book, Mailing May.

Contrary to the legend embodied in the book, little Miss Pierstorff was probably treated quite well on her Parcel Post journey. Pierstorff’s cousin worked as a mail clerk for the railway and accompanied Charlotte May on the trip. Charlotte May did not ride inside canvas mail bags.

In 1915, Maude Smith, a 30 pound three year old girl was mailed by train through Parcel Post between two towns in Kentucky. A shipping tag was sewn to the girl’s pink dress which included thirty three cents in stamps and a delivery address. The girl reportedly had some candy and an apple for the journey. The Postmaster at the delivery station responded to the Postmaster at the origin station with the following: “Dear Sir – baby received 8:15, Carny, KY., by postmaster in person. I doubt the legality of the sending, but it was put on train and I must deliver and report.”

Post Office Historian, Jenny Lynch, noted that the Baby James Beagle story from 1913 garnished some headlines “probably because it was so cute.” While it may be a cute story, adjectives such as disturbing, irresponsible and neglectful also come to mind when parents mail babies and children. In fairness, Historian Lynch explained that in underserved rural communities, mail carriers were trusted servants upon which all relied. Even with great trust in Post Office employees, the Postmaster General officially stopped the practice of mailing children on June 13, 1920.

With this new service and form of communication in Parcel Post, it took people merely weeks to “push the envelope” with the Post Office program. I am confident that Ben Franklin did not envision a Post Office which would serve as a child delivery service. I am further fairly certain that the Post Office did not intend its Parcel Post service to become a child care program for anyone who could afford postage. Children sent through the mail appears as a classic unintended consequence of introduction of Parcel Post. Eventually, the Post Office formally halted the practice.

I stumbled upon the children through mail history when reflecting on the recent testimony of Facebook’s CEO before Congress. Zuckerberg testified about unintended consequences of misuse of private information and misuse of the Facebook platform for political gain. For this article, we can place to the side any politics associated with the Facebook testimony as well as the CEO’s need for a booster cushion on his chair for his testimony. As with Parcel Post, customers sought to take a new service in directions never intended. Zuckerberg left the clear impression that Facebook plans never included serving as a vehicle for extreme viewpoints or use by a foreign nation to influence the U.S. political processes. Facebook was a communication tool with an evolving process to make money from the volume of users and communications. As Facebook’s influence and scale became global, the unintended consequences became equally grand in nature.

It matters not if it was Facebook, Twitter, the forgotten MySpace, or the yet to be identified replacement of them all: The point remains that once people get hold of these communication services, they will seek to use them for their own means. A brief internet search disclosed the challenges and unintended consequences of the Post Office introducing Parcel Post. This drama of sending children through the mail was quite public. Yet, Facebook executives, engineers, designers, and great technical minds completely missed these obvious lessons from the past. I leave for others to determine whether Facebook genuinely ran into “unintended consequences” or whether the Facebook business model placed greater emphasis on securing subscribers and advertisers.

We apparently have not learned the lessons from James Beagle, Charlotte May Pierstorff or Maude Smith. We know, and need not assume, that there exist parents who would slap stamps on their kids and tender them to post carriers. We know, and need not assume, that Facebook and similar sites could be hijacked by extremists, foreign nations or others with improper motives. Unlike the James Beagle story being considered “cute” a century later, no one should ever categorize Russia medling in American political processes as “charming”, “cute”, or “adorable” regardless where you fall in the political spectrum. With the amazing reach and influence of technology today, much more is at stake when we ignore lessons we should have learned long ago.

Note: The Post Office motto of “Neither snow nor rain . . .” actually originated in “The Persian Wars” by Herodotus (Book 8, Paragraph 98). Herodotus, a Greek historian, attested to the valor of the wartime Persian messangers with this phrase.

A Case for Opening Statements in Mediation

The Giant Panda. The Blue Whale. The American Bald Eagle. The Initial Joint Session in Mediation. Yes. These are all endangered or threatened species. As a mediator, I sometimes feel as though I have a better chance of a Snow Leopard sighting than witnessing more initial mediation opening statements. How did this core mediation element get on the path toward extinction? More importantly, does it matter?

Prior to any mediation, I confer with the parties’ lawyers regarding the “need” and merits of an initial joint session with presentations. Most frequently, each party opines that an initial joint session would be of little value. I routinely hear the following:

* The parties know the positions, so let’s get right to the bargaining;
* Not our first rodeo and we know the process;
* We do not need to listen to each other’s summary judgment arguments; and
* The parties are already far apart and a joint session may create more distance between them.

This list can go on. As mediation has become a staple element in the litigation process over the past few decades, many litigators now feel fairly comfortable in the mediation process. To so many of these practitioners, the opening statement is viewed as a waste of time or with downside risk of further entrenching parties in their positions.

As a mediator, I should celebrate this initial agreement among counsel. Complete agreement on a process issue can build momentum for other agreements along the journey, right? Yet, I cannot help but think that these lawyers seek to avoid the initial joint session more out of habit and routine than after careful consideration in each case.

As explained below, numerous potential benefits remain with an initial joint session. Please note, I appreciate that, at times, initial joint sessions could and should be avoided. For instance, where the parties have already conducted settlement conferences or prior mediations, there may be greater utility in proceeding directly to the caucus stage. Emotional issues, threats or other safety concerns may mandate that the parties remain separated.

For other cases, an initial joint session could be a useful tool in advancing the parties toward resolution. Consider the following factors in any analysis of the need for opening statements at an initial joint session. Please appreciate that this list is not intended to be comprehensive. The particular facts, circumstances and dynamics of each individual case should be evaluated.

An opening statement at an initial joint mediation session:

1. Sets the Tone. Parties will advance opposing positions and will fight to “win” in court. This adverse relationship can be recast into a positive tone to cooperatively seek resolution during mediation. Parties can remind each other that shields and swords can be left by the door during mediation. If settlement is not achieved, the litigation weapons can again be picked up.

2. Humanizes the Process. Introductions and initial discussions place together faces and names. I am no psychologist, but I can tell that there is a difference when parties initially engage each other directly. There appears to be greater respect for both participants and positions where these brief relationships are established. It is easier to dismiss points and positions from the faceless “them” and “the other side” of opponents who are strangers. Once the relationships are established, parties generally more carefully consider positions advanced.

3. Allows Direct Messaging. The litigation process unavoidably results in lawyering of messages and filtering of information for clients. There are virtually no opportunities to directly engage an adversary except settlement efforts. The initial joint session provides the forum for such direct messages. Messaging, quite often, includes clues or direct statements of what is needed by one party for resolution. If parties miss the message, the well-trained mediator will ensure that the message gets received.

4. Permits Evaluation of Opposing Counsel and Parties. Opening statements can function as a mini preview of the trial. When I spent years as a party representative in mediations, I possessed a general game plan. I knew where the bidding would commence and track on my side of the equation. I remained disciplined to stick with that plan while keeping an open mind. The one factor which most altered that analysis was the opening statement session. In that brief time, I would evaluate opposing counsel in action. I could see how the adversary responded and acted in these circumstances. Would these individuals play well before a court? Would they be likable before a jury? Can they convincingly tell their story? The risk calculus for each case necessarily changed based on these observations.

5. Allows a Voice to Be Heard. A number of litigants initiate a case in order to be heard. Some mediation participants, recognizing that the mediation amounts to their “day in court”, need to tell their story in order to proceed to resolution.

The initial joint session in mediation will not settle the case. It can set the stage and tone for the entire mediation process. It does allow unfiltered insight into an adversary’s thinking. It does provide the opportunity to send clear signals. It further provides the mediator with additional tools to use during the mediation caucus sessions. In sum, the initial joint session in mediation represents a small investment of time which could reap substantial dividends in reaching resolution. Carefully evaluate the merits and potential benefits before you skip the next initial joint session in mediation.

“Know When to Fold ‘Em” – Lessons from the Bill Cosby Trial

The high profile Bill Cosby re-trial just concluded with Cosby found guilty of all sexual assault charges. Given the prospect of a lengthy appeal while he remains on house arrest, his advanced age, and being legally blind, it remains unclear whether Cosby will ever serve jail time. The real question for legal strategists is how Cosby’s lawyers ever allowed this set of facts to go to a jury — even with Cosby’s fame and a hung jury in the first trial.

Foremost, disclaimers. When there is a poor result for a client, it is easy to second guess the lawyers and their decisions. We were not privy to deals, or lack of deals, with prosecutors. We do not know about instructions from the client even if they ran afoul of legal advice. We do not know the dynamics in the courtroom or among the players. We can evaluate the public record of the trial and consider post-trial statements by the jurors. We should not rush to condemn the lawyers or their decisions without such vital information.

Background and trial set up. The Commonwealth of Pennsylvania accused Cosby of giving Andrea Constand an intoxicant without her consent, sexually assaulting Constand without her consent, and sexually assaulting Constand while she was unconscious. Cosby previously paid Constand $3.38 million in a prior civil settlement. In addition to this criminal proceeding, Cosby is a defendant in a series of civil lawsuits filed by women who allege similar, and identical, facts of being drugged and sexually assaulted by Cosby. These other women seek monetary damages based on defamation and similar theories.

Heading into the criminal trial, Cosby’s defense team knew that Constand would testify against Cosby and that the prosecution intended to call five other women who would each testify that Cosby drugged and sexually assaulted them in a fashion similar to Constand. The $3.38 million settlement between Cosby and Constand would come into evidence. Further, Cosby had already given a deposition in one of the civil cases in which he admitted that he gave women intoxicating drugs. That sworn testimony and admission would be presented to the jury in the criminal case.

Cosby’s lawyers were also aware of the cultural shift between the first hung jury trial and the re-trial. The stories involving Harvey Weinstein and many other abusers came to light before the re-trial. The #MeToo era was upon us and inescapable for any defendant such as Cosby. In light of these dynamics, Cosby stood accused of intoxicating women to the point of losing consciousness and then sexually assaulting them. Yet, Cosby’s team proceeded to trial.

What mitigating facts were on Cosby’s side? Cosby had been a high profile comedian an actor for decades. His work on Fat Albert and The Cosby Show was admired by the whole country. In fact, in the 1980s, on The Cosby Show, Cosby was the “Dad” children wanted and fathers wanted to be. The trial was set in the Philadelphia area — Cosby’s hometown and location of his alma mater, Temple University. Cosby’s works which have helped both Philadelphia and Temple University would be well known to the jurors. Cosby has been involved in well publicized efforts to assist young black and disadvantaged men to become better family members and fathers. Cosby possessed local ties and, up to the point of this trial, a solid reputation as an actor who helped others throughout his career.

As to the women who would testify against him, Cosby’s team could attempt to show bias in their testimony as they were motivated to win their civil lawsuits against Cosby. Also, these alleged actions took place decades ago, as early as the 1970s, but the witnesses had never previously come forward. Memories could be challenged.

As to the damaging Cosby deposition testimony from the pending civil case, I have no idea what Cosby’s lawyers were thinking. That testimony would be presented to the jury in the criminal case. In it, Cosby admitted to drugging women to the point that the women would be incapable of offering consent to sex. Notably, the plaintiff in the civil case from which this deposition testimony arose, was 15 years old when Cosby provided her with the intoxicant.

This testimony would flow directly from the tongue of Cosby himself. Cosby was under oath in providing the statements. The testimony would go far to establish a pattern of conduct for a key element the prosecution needed to prove. More critically, the nature of the testimony would transcend the simple issue of proof and confirm Cosby as some type of predator.

In a post-trial interview, one juror noted that this deposition testimony doomed Cosby. Cosby presented no credible explanation or justification for drugging women. What purpose could be served in drugging women while on “dates”? Did Cosby want to hear the women slur their speech? Did Cosby want to ensure that each woman received a peaceful rest with the aid of the intoxicant? The jury understood well that the only rational explanation of administering drugs was to allow Cosby to have sexual relations with the women without their consent.

In virtually every litigation, lawyers confront “good” and “bad” facts. For the most part, determining a fact as good or bad is based on perception. The reality is that we operate in shades of gray and rarely are “facts” absolutely good or bad.

Then, at times, lawyers are forced to confront facts or circumstances that are catastrophically bad. Such events are usually not up for much debate and leave little to interpretation. More fundamentally, these circumstances threaten to become the key or critical issue in a trial and not in a positive sense. All other claims and defenses may be rendered moot once this information comes to light.

For Cosby, once his testimony came in wherein he admitted to drugging women, he transformed to a predator. His previous reputation meant little. His charitable works were rendered moot. He went from Cos the beloved local hero to Defendant Cosby the molester. Maybe under the circumstances there was little Cosby’s defense team could have done.

What about civil cases where a lawyer has a catastrophically bad fact or circumstance? For each point discussed below, the advocate-lawyer has ready assistance in the form of neutrals. Step one is a candid realization and admission of such terribly bad facts. These facts need not be explosive as the Cosby testimony and could even be strategic in nature. For instance, a case may be venued in a rural area with a jury pool which is homogeneous on societal, racial and religious issues. The lead and necessary witness for a client is a Chinese national engineer with a name few Americans can pronounce who speaks English poorly with a harsh Asian accent. Potential local prejudices must be factored in any analysis. The lawyer may determine that the case can be defended well, but impossible to win in this jurisdiction under these circumstances.

Whether through Early Neutral Evaluation, mediation or other ADR process, solicit input from the neutral on these matters. The neutral is trained to identify risks and challenges. The neutral might note additional concerns not previously evaluated.

The next step may be a difficult, but essential, frank discussion with the client regarding the challenging fact or issue. Consequences of proceeding must be made plain. The client may not want to hear that a fully defensible case needs to be settled due to potential prejudices (where courts are supposed to be fair and justice blind).

Lawyers can turn to neutrals on these client expectation and reality check situations. The client may be more willing to listen to new positions, even if adverse, if voiced by a neutral, disinterested party. The lawyer may need a face saving method to convey the case altering news and can use the neutral.

Once the reality of the effect of the catastrophic bad facts are acknowledged, the settlement path may become fairly obvious. The assistance of neutrals on resolution strategies will be explored in other articles. The current focus remains on navigating the “Cosby syndrome” and then how to alter the trajectory of the case. In civil litigation, lawyers can create opportunities to avoid catastrophic bad facts, but they first need to be identified even if to do so requires swallowing a little professional pride to admit that a case is about to crater. There is help with neutrals – use them.

Mediation Conduct: The Art of Flexibility

Virtually all commercial litigation matters proceed through mediation or some other ADR process. Most courts now include such ADR mandates as part of their standard case management orders. The vast majority of cases resolve at or through mediation. Accordingly, this series of articles reviews the fundamentals of mediation as the process remains so critical for a successful litigation. For less experienced practitioners, practical tips may assist your development. For veteran lawyers, reminders will assist in keeping focus on the vital methods and processes.

Earlier works in this series addressed preparation for mediation sessions. This article dives deeper into conduct and approaches during mediation with an emphasis on the need for flexibility. Future articles will focus on challenges in formulating settlements and ensuring finality through mediation.

Remember that Mediation Is Not Litigation.

A basic reminder of the differences between litigation and mediation will assist your mediation approach. Litigation is an adversarial process by design. Attorneys, most especially litigators, are professionally trained and skilled adversaries. Ethical mandates compel us to zealously advocate within the bounds of the law on behalf of our clients. Rules of civil procedure, court rules, and all litigation processes have been designed around this professional adversity. The goal is to win.

In contrast, mediation is a voluntary process with rules and protections to foster the free sharing of information and concerns in an effort to achieve a mutually agreeable solution. The entire mediation process remains confidential to encourage this candid exchange of information and positions. The goal is to achieve resolution acceptable for all.

Practitioners need to remind themselves of the inherent and fundamental differences between litigation and mediation. I often need to remind lawyers — more so than client representatives — that mediation requires leaving swords and shields at the door. The litigation weapons can be picked up for all remaining battles if the mediation does not succeed. This caution does not mean that lawyers should no longer be advocates in mediation. At certain points in any mediation, advocacy needs to yield to cooperation in order to achieve settlement.

Compromise Is Not a Four Letter Word.

Mediation is a settlement negotiation on steroids. Any negotiation requires both give and take. Inherent in the process is compromise. Both practitioner and client must not merely appreciate, but also embrace the concept of compromise at mediation.

Compromise can be presented and achieved in various forms on a variety of issues: it is not simply lowering demands and increasing offers. For instance, one party may consider issuance of a joint press release essential in settlement. To agree to such a term, the opposing party may insist on new training for all parties’ sales teams. The key remains to think broadly and beyond financial terms for issues on which parties can compromise. With compromise resulting in success in some areas, it can often spill over to the more difficult issues.

At times, lawyers opine that compromise would signal weakness in a position or resolve. Alternatively, participants fear that presentation of a compromised position would set an unacceptable floor or ceiling for future negotiations. Be creative with offers to avoid such concerns. Present conditional or bracketed offers. Use the mediator to “suggest” the next round of offers. If no progress is achieved, the parties can retreat to their last “formal” position. These “conditional compromises” eliminate much of the concern or risk presented by participants.

Message Your Offers.

Each round of negotiations presents an opportunity to send direct and indirect messages to the adversary. The monetary value alone could send the message. Yet, in other instances, a message forwarded with a proposal could be more important than any dollar value. Messages could address timing needs for resolution, financial limitations, internal difficulties one party confronts on settlement, challenges in dealing with third parties such as insurers or indemnitors, etc. Including a message with a proposal better ensures that the adversary will begin to appreciate and more fairly consider the points presented.

There may be issues beyond the confines of litigation which an adversary may not appreciate but present very real concerns for one party. A lawsuit being resolved and concluded during a particular fiscal quarter or year may be significant for one party. A message that there would be less flexibility if the lawsuit continues into next year not so subtly advises that the time for settlement is now. Alternatively, the message could be blunt: “Settlement in this quarter allows us to offer more money than if the case drags on”.

Similarly, a party may need resolution now to be able to fund other, unrelated endeavors or even to simply end the distraction of continued litigation. An appropriate message could signal a willingness to compromise now to achieve finality, but that such a position would be difficult to replicate in the future.

Do Not Be Constrained by Legal Claims.

In court, relief will be limited to available legal remedies. In mediation, no such limitation applies. As a mediator, I often hear from participants that part of a proposal is beyond the legal relief available in court. As such, it will not be given consideration. An example of such routinely requested relief is that the one party contribute toward payment of counsel fees of an adversary where no statute or court rule authorizes such relief. All parties need to be reminded that in mediation, all such requests are fair points in negotiations. Indeed, the same party objecting to payment of counsel fees for an adversary is the party demanding confidentiality of any settlement, as well as indemnities and releases addressing all claims since the beginning of time. All such relief remains unavailable through court while in play in mediation.

Determining the nature of relief in mediation presents one of the greatest opportunities to craft a meaningful settlement. Business relationships can be modified, renewed, or terminated with agreement of the parties. Injunctive type relief which guides future conduct of the parties can be tailored to address needs. The limitation is your own creativity.

If a lawyer is aware that relief beyond the confines of legal claims will be at issue, serious consideration should be given to raising the concepts before the mediation. The adverse party may need different decision makers available to address the requests. The adverse party requires a fair opportunity to value any such proposal. If not raised timely, the ability to include such relief may be thwarted.

Pivot.

Lawyers well know that when they have the facts, pound the facts; when they have the law, pound the law; when they have neither, pound the table. Lawyers in mediation are excellent in seizing on the strengths of their cases. They will anchor positions and offers in that one favorable document, snippet of testimony, expert theory, or precedent. That piece of evidence or case law, to these lawyers, justifies little to no movement in positions by their clients.

For so many of these lawyers, they simply do not know how to move on from this comfort zone and positions of perceived strength. These lawyers must learn to pivot from such critical points to the next phase of negotiations. Absent this pivot, the adversary (and even the mediator) will eventually respond that the point has been carefully considered and valued in any risk calculus. New, different, or additional points will need to be presented if further compromise is desired. Do not become the broken record stuck on the one point, however powerful that point may be perceived.

In pivoting from such a critical point, the proponent should not lose sight of it. The point or argument can be still be referenced for further leverage as part of additional negotiations. However, it must become part of something else, in this case resolution. Use the above-described tools of messaging and compromise to achieve the pivot. “Our statute limitations defense remains clear and, we believe, dispositive. Nonetheless, it benefits us all to place the costs and expense of this case behind us, so we can offer . . .”. The critical point gets reinforced and the participant transitions toward resolution discussions.

These tips and tools are not mutually exclusive. The list is not exhaustive, but rather illustrative of the need to think outside of the litigation box. There is no formula for the timing of use of these techniques. The common element remains flexibility in the mediation participants to address issues as they arise and to respond in a manner which keeps the process moving toward a solution. The mediator should guide the parties in the process and will be using these tools as well. If used properly, these techniques will result in the parties being closer to an acceptable resolution.

Don’t “Walk on By”

The Masters golf tournament with its annual hoopla and green jacket just concluded. I admit it. I am NOT a golf fan. Perhaps I am missing the “golf gene” as I find watching golf dreadfully boring (playing golf is no treat either, but that is more due to a chronic slice). With the Masters, however, I came across a human interest story related to one golfer which intrigued me. This story involved the most personable professional golfer of all time.

Who is the most personable golfer? “Lefty” Phil Mickelson with his legions of fans? The Golden Bear Jack Nicklaus? Relative newcomers Rory McIlroy and Jordan Spieth? Party boy John Daly? Showman Lee Trevino? All good choices, but not even close. Arnold Palmer was above and beyond them all. He had his own Army. Arny’s Army would follow Palmer on his battles on each golf course while they adored him.

What separated Arnold Palmer from all other amazingly successful and likable golfers? When younger golfers sought career advice from Palmer, he would not remark on putting stances or club grips. Palmer stressed the importance of positive relations with people. As to the Army of fans, Palmer stated “Never walk by anyone. No one likes to feel like they are invisible, and don’t matter.”

This advice, from the golfer who had an entire Army of fans following him on every golf course. Take the time to acknowledge people. Take the simple step to let them know that they are seen. Appreciate these folks. Palmer understood that if these few moments or even minutes were not taken, then these fans would feel unimportant. And what are fans other than fellow human beings. Arny’s Army did not amass elsewhere and march out to Palmer. It grew one person at a time, and Palmer tried to acknowledge each one of them along the journey.

Based on my own golf course experiences, I understand what Palmer sought to accomplish. When we were 13 and 14 years old, a buddy and I caddied at an exclusive private golf club. Admittedly, we did so in order to be able to hack around on Caddy Day once a week. Always on the first hole for each loop, the golfers would dutifully ask our names and inquire where we went to school. For the next 17 holes, it would be “Caddy, get the flag”, “Caddy, how many yards to the green?”, Caddy, . . .”, “Caddy, . . .”. The golfers would not remember our names by the second hole. We were invisible, unless, of course, we messed up.

In mediation, we can learn well from Arnold Palmer’s advice. “Never walk by anyone” easily translates to never summarily dismiss adversaries or their positions. If parties are advancing particular facts, issues or arguments, they are usually doing so with genuine intent to move the process forward and not merely to waste everyone’s time.

As a mediator, I often hear parties immediately react in declaring an adversaries’ position as irrelevant or stating that a position will not even be considered. As a practitioner, be careful not to let the positions being advanced to walk right past you.

Mediation participants advance positions for numerous reasons. One side could fully appreciate that an opponent will reject a certain version of events. Yet, these points are still stressed to remind all that, like them or not, these facts will be presented to a judge and jury. Alternatively, the points are stressed to illustrate that the proponent is fully prepared to proceed with a solid grasp on the facts of record. Or, these points are stressed to show that summary judgment or other dispositive relief will not be available to the adverse party.

Fair consideration of any or all of these reasons should spur any party to more carefully evaluate the risk and jeopardy of proceeding with litigation. I am not suggesting that agreement needs to be reached on merits of arguments. I am not even suggesting that arguments and positions need to be accepted. Rather, attempt to understand why positions are being advanced. Listen for any messages or clues being conveyed in points presented.

When I served as the party representative in so many mediations, I found it fairly easy to come up with the next point, argument, position or offer to advance. However, I found it more challenging to correctly “message” the point being made. If I could get the mediator to pass along a particular message together with the position, I could better ensure that my points would not be “invisible, and didn’t matter” to the other side. I sought to force consideration of the points I presented and not allow an adversary to merely walk by my position.

As a practitioner, use messaging with offers in mediation. As importantly, use the mediator in this process. The mediator best understands the dynamics in each room. Solicit input from the mediator on particular proposed messages and how they will be received. In some instances, the message may need not be anything more than:

“I see your point” (You are not invisible)

or

“We understand and have carefully considered your argument” (We did not walk by you).

You will not end up with your own army of fans. Nonetheless, you can better ensure that your points and positions will receive proper consideration. With this process, you will more readily learn more about your adversaries’ positions and better direct the negotiations. In that way, your mediation has a better chance of success and you can make Arnold Palmer proud.

P.S. Apologies to Dionne Warwick for borrowing her song as the title to this article. Warwick still performed the best (and original) version of Walk on By in 1964. Since then, at least 62 versions have been recorded by a variety of artists.

Go to the Mountaintop

Fifty years ago this evening, 3 April 1968, Dr. Martin Luther King, Jr., gave his “I’ve Been to the Mountaintop” speech at the Mason Temple in Memphis, Tennessee. On a night with dire storm warnings, the church was packed to hear Dr. King speak about the Memphis Sanitation Workers’ strike. Unfortunately, this sermon was to be his last oratory masterpiece. Coincidentally, I pen this article precisely fifty years later on April 3, 2018 while Memphis is under dire storm warnings. Some things never change, including Memphis Spring storms and, more importantly, the relevance of Dr. King’s words.

With the 50th anniversary of the tragic killing of Dr. King, many articles and stories abound regarding the life and works of Dr. King, as well as his legacy. I have chosen to focus on one sliver of his incredible journey – one with a Memphis connection: Dr. King’s “I’ve Been to the Mountaintop” speech.

Foremost, the speech almost never took place. Dr. King was suffering from migraine headaches both before and during his trip to Memphis. He debated whether to make the trip from Atlanta. He suggested that then 26 year old Reverend Jesse Jackson should speak in his stead. He even discussed whether his speeches helped the underlying causes (we all have self-doubts!).

Dr. King himself addressed this initial concern in his Mountaintop sermon. Dr. King recited the Biblical story of the Good Samaritan. He noted how Jesus related that the priest and Levite in the parable passed by a man in distress in a dangerous area. The Samaritan, however, stopped and assisted where the men of religion and higher society would not. Dr. King speculated that the priest and Levite asked “If I stop to help this man, what will happen to me?” The Samaritan asked “If I do not stop to help this man, what will happen to him?”

If Dr. King did not involve himself with the Sanitation Workers, what would happen to them? Dr. King fought through his migraines and self-doubts to give his Mountaintop speech. Dr. King provided the same challenge to his audience at the Mason Temple: If you do not help the Sanitation Workers, what will happen to them? If we listen to these words today, we cannot merely rest on the sidelines when challenges present themselves.

Beyond migraines, the Memphis trip for Dr. King almost did not happen due to divide among some Civil Rights leaders. According to Jesse Jackson, by 1968, Dr. King saw the need for unity on causes as essential to achieving goals. Yet, many other religious leaders in the Civil Rights movement spoke of different approaches. Dr. King questioned whether he was a source of further divide rather than unity. Careful review of the Mountaintop speech reveals that he tackled that issue head on in his sermon.

As a mediator, I marvel at the approach of Dr. King in this regard. As to these leaders with whom he did not readily agree on key issues, Dr. King declared:

“And I want to commend the preachers, under the leadership of these noble men: James Lawson, one who has been in this struggle for many years; he’s been to jail for struggling; he has been kicked out of Vanderbilt University for this struggle, but he’s still going on, fighting for the rights of his people. Reverend Ralph Jackson, Billy Kiles; I could just go right on down the list, but time will not permit. But I want to thank all of them. And I want you to thank them . . .”.

Dr. King calls out these leaders by name and heaps praise on them and their efforts. Dr. King’s message of unity cannot possibly now be cast aside by these other leaders who Dr. King himself holds in such high esteem. Nicely done to marginalize these dissenting voices with acts of kindness, not criticisms!

As to the Mountaintop speech itself, it is masterful in structure and use of tools such as repetition. You can feel the cadence simply in reading the speech. Initially, Dr. King opines that if God would give him the ability to select any age to live in, Dr. King would reject the time God’s children escaped the bondage of Egypt with the phrase “But I would not stop there.” The time of ancient Greeks debating philosophy? “But I would not stop there.” The heyday of the Roman Empire? “But I would not stop there.” The birth of art masterpieces in the Renaissance? “But I would not stop there.” And so on throughout historical events until Dr. King selects his own time in the 1960s when Dr. King admits “the world is all messed up. The nation is sick. Trouble is in the land; confusion all around.”

Why would anyone select that time, especially a black preacher who confronted racism and hatred every day? For Dr. King, it was an easy call. Society was being forced to grapple with race and cultural challenges. He wanted in as part of this “human rights revolution”. It would not be easy but “only when it is dark enough can you see the stars.”

Dr. King made this selection knowing that his home had been shot, he had received numerous death threats, and he even was delayed on his trip from Atlanta to Memphis due to a bomb threat. His message of unity and non-violent protest was simply too important. He understood that the message was necessary at that moment and place in time. Would we choose an age with such challenges?

The Mountaintop speech provides almost endless stories and lessons in addition to the points made in the sermon. Yet, it is but a glimpse into the complex life and messages of Dr. King. He battled unjust laws and policies in society. He battled prejudices. He battled poverty. He battled divisions among Civil Rights leaders. All of these challenges are on display in some form in the Mountaintop speech.

On the eve of his assassination on April 3, 1968, Dr. King concluded the Mountaintop speech with the following which remains eerie these 50 years later:

“Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it really doesn’t matter with me now, because I’ve been to the mountaintop.

And I don’t mind.

Like anybody, I would like to live a long life. Longevity has its place. But I am not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the Promised Land!

And so I’m happy tonight.

I’m not worried about anything.

I’m not fearing any man!”

Children Forcing Changes

Linda Brown, of Brown v. Board of Education fame, just passed away at the age of 76. When she was 9, in the early 1950s, Linda became the face of the desegregation battles in the U.S. with her family as the lead plaintiff in Brown v. Board of Education. Later in life, Linda recalled that in her middle class neighborhood in Topeka, Kansas, she played with children who were white, black and Latino. However, she could not attend the nearby grade school. Instead, her daily journey to the all black school included walking through a rail yard, crossing a busy road, and taking a bus. Topeka considered such circumstances for black grade school children as “separate but equal” to Linda’s neighborhood white friends who simply walked two blocks to school.

Through the courageous battle by Linda, her family, other black families and the dedication of lawyers such as Thurgood Marshall, Linda’s challenges resulted in the landmark Brown v. Board of Education Supreme Court decision which dealt a death blow to the Supreme Court’s 1896 Plessy v. Ferguson “separate but equal” doctrine. Unanimously, the Supreme Court rejected “separate but equal” as violative of the equal protection clause in the 14th Amendment to the U.S. Constitution. Declaring separate educational facilities “inherently unequal”, the Supreme Court stated in Brown:

“To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.”

What becomes of a nine year old grade school student who was thrust into a national debate on a culturally divisive topic? First, Linda Brown was never able to attend her nearby public school as it remained segregated during the years’ long litigation process. Linda became an educational consultant and public speaker on issues associated with desegregation. She was quite active in her church. Despite her otherwise quiet and low-key lifestyle, in 1979, Linda answered the call again to serve as the lead plaintiff in Brown v. Board of Education II which challenged the sufficiency of actions by school districts to implement Brown v. Board of Education mandates. These very public litigations defined her life. As to her association with such a landmark case which fostered in a cultural change in America, Linda later stated, “Sometimes it’s a hassle, but it’s still an honor.”

Kansas Governor, Jeff Colyer, remarked at Linda’s passing: “Linda Brown’s life reminds us that sometimes the most unlikely people can have an incredible impact and that by serving our community we can truly change the world.”

Linda Brown and her family deserve all the credit for pushing uphill against the firmly established segregation systems. By the early 1950s, at least some in society could acknowledge that separate systems were far from providing equal opportunities. Yet many (i.e., the majority) were not ready for complete change. Many remained staunchly opposed to desegregation. The Brown family and other civil rights activists knew they would confront not merely opposition, but also threats and intimidation. With the image of nine year old Linda Brown at the forefront, they continued the battle. A child lead the way and changed the world.

Are the Parkland Teens simply a passing phase in the continuous news cycle or might they be a modern day Linda Brown? As you have seen the images by now, the Parkland Teens are the group of survivors from the tragic school shootings at Stoneman Douglas school in Parkland, Florida. Seemingly unlike the survivor groups at other horrific school shootings (unfortunately too many to list), the Parkland Teens have moved well beyond the raw, emotional, grief stricken friends and classmates into something much more.

The Parkland Teens demand changes to strengthen gun laws to better prevent future tragedies while providing safer schools. Linda Brown’s struggle sought changes through the court system. The Parkland Teens are using the political and legislative processes. Both approaches can achieve change in our democratic society. Just note the Parkland Teens accomplishments to date. Within a week of the massacre at their school, the group yet to be known as the Parkland Teens, held a nationally televised forum where 2 U.S. Senators and a U.S. Representative from Florida had to directly confront gun control issues as well as victim families. The Parkland teens forced immediate action by Florida law makers. This group then organized the national March for Our Lives rally in Washington, D.C. involving hundreds of thousands. The Parkland Teens put forward a 5 point plan demanding action for their cause. That 5 point plan cleverly includes elements which have already either legislatively or judicially been determined not to run afoul of the 2nd Amendment.

The Parkland Teens accomplished these actions in about one month’s time. We have heard “talk” from leaders of the need to do something after Columbine, Sandy Hook and all other school shootings. Nothing has ever materialized. Yet, the Parkland Teens have been able to gain traction on gun control where all other efforts stalled out. Frankly, I am not entirely certain as to why.

In the 1950s with Linda Brown, society was probably not aware that they were at an historic moment for desegregation and civil rights. We may be at an historic moment with the Parkland Teens. These concerted efforts may result in meaningful gun control measures and, as important, acceptance of gun control laws and regulations. The movement started by the Parkland Teens just feels different. The NRA, for all its political clout and bluster, appears a little on its heels for the first time in my memory. Politicians such as Marco Rubio, a staunch “guns rights” supporter, is “rethinking” his positions. The Republican governor of Florida signed into law gun control legislation passed by a Republican controlled state legislature.

Please note, for this article, I am not advocating in favor of or against gun rights or gun control measures. Linda Brown’s passing and reflection on her accomplishments has made me wonder whether we are at a cultural shift in our evolving and ever-changing democratic society when it comes to the issue of gun control. Genuine societal shifts on issues held so dear by so many are difficult to see in real time. Usually we need the space of time and historical perspective to pinpoint when these shifts take place.

In retrospect, we can identify societal shifts and associate them with events. Some events are fairly clear. The Boston Tea Party and signing of the Declaration of Independence let the Crown know that the arrangement had changed forever. The Emancipation Proclamation ended slavery. The passing of the 19th Amendment granted women the right to vote. Other events needed time before we recognized that we were at a point of change. Linda Brown’s lawsuit, when filed in the early 1950s was “just another” civil rights lawsuit but it became so much more. Instead of the 19th Amendment, perhaps it was Susan B. Anthony getting arrested for voting in 1872 which really lead to the suffrage movement for women.

The Parkland Teens fundamentally seek to start a movement to address gun control. In a few months time, when the endless news cycle focuses elsewhere, we may have difficulty recalling their name. But maybe, just maybe, the Parkland Teens have tapped into something deeper and they may be the engine which drives a national gun control debate. If so, then we should take time now to wonder at the societal seismic shift these children are placing in motion. Such events rarely happen in our society. Linda Brown was one such force. Let’s see if the Parkland Teens can have an “incredible impact” that can truly change the world. Let the children lead the way!

From PyeongChang, with Determination

With the Winter Olympics just concluded, we can all rest easy for another four years until we once again score a Triple Lutz from our armchairs. There did not seem to be great excitement leading up to these 2018 games. Perhaps there was no real controversy among U.S. figure skaters. Perhaps the Flying Tomato has simply ripened too much on the vine. Perhaps we still wanted to see Apolo Ohno on the speed skating ice rink instead of adding color commentary. Whatever the reason, when the Olympics began, they once more became almost addictive.

As always with the Olympics, incredible background stories of courage, dedication and heartache emerge. Those storylines are usually coupled with monumental Olympic performances by athletes at the pinnacle of their careers. Then there was Elizabeth Swaney.

Swaney, competing for Hungary in the Women’s Halfpipe Freestyle Skiing event, garnered more media attention than most. You might be among the almost 1.6 million viewers of Swaney’s Halfpipe run on NBC’s Olympic Twitter feed. You will recall that Swaney slowly swooshed from side to side on the halfpipe neither attempting nor performing any tricks. Her goal was merely to remain upright on the skis until she reached the end. You may have read some of the thousands of Twitter comments which characterized this Olympic performance as “shameful”, “pathetic”, or even “disrespectful”.

Was Swaney injured or ill and could not meaningfully compete? No. Did Swaney show up at the wrong event? No. Was Swaney capable of performing any tricks which all of her competitors attempted? No. Could Swaney reasonably compete for an Olympic medal? No. As it turns out, Swaney essentially found a loophole or weakness in the Olympic qualifying process and exploited it to reach PyeongChang as an Olympic “athlete”. How could this happen?

Swaney, a 33 year old U.S. citizen with a Masters Degree from Harvard, determined that Women’s Halfpipe Skiing was generally under-represented at the highest levels of the sport. Leading up to the Olympics, she strategically competed in World Cup qualifying events where fewer than 30 athletes competed. She represented Venezuela and eventually Hungary. She maintained her routine of the “slow and steady”, remain vertical approach with no tricks throughout. Inevitably, a few skiers would crash thereby ensuring that Swaney would end up placing around the 24th position, albeit with an extremely low score. Swaney then qualified for the Olympics among the top 24 women freestyle skiing athletes.

“Honored” and “humbled” to be an Olympian athlete, Swaney apparently has no regrets and fulfilled a personal goal. Not all viewed the situation in the same light. “We, the Hungarian Olympic Committee, have to learn the lessons from this case.” Changes to the World Cup quotas and qualifications to be eligible for Olympic consideration are being evaluated in response to Swaney’s achievements.

The vast majority of comments on social media have been negative toward Swaney and her Olympic participation (notably, the Olympics do not give out “Participation” medals). Informally, I inquired of lawyers and non-lawyers as to how they felt about Swaney’s efforts to reach the Olympic stage. The majority of lawyers were OK with Swaney competing. Swaney operated within established rules. She discovered an opportunity presented in the system. The process permitted the conduct and Swaney met the minimum qualifications. If the result is not desired, change the rules — do not penalize the crafty participant. Lawyers — good old rule followers even where unintended and absurd results flow.

For non-lawyers, the majority did NOT view Swaney’s conduct as OK. Even if Swaney met the letter of the rules, she completely abandoned the spirit and intent of the rules. The Olympics remain a special event which comes around once every four years for the athletes. They are designed to promote sportsmanship and showcase the best athletes in the world in each event. Swaney’s presence precluded one real competitor from participating in the Olympics. Swaney distracted from true competition. For non-lawyers, fairness carried the day.

As a mediator, I searched for any takeaways from Swaney’s controversial performance. Swaney knew she possessed no chance of medaling. Swaney knew she would come in last place or barely ahead of only those athletes who crashed on all halfpipe runs. She had to have known that she would be held up to public ridicule for the “scheme” to reach the Olympics in this fashion. She had to have known that her name would forever be connected with future trivia contests. Yet, with all these negatives, Swaney remained determined to reach PyeongChang and be able to forever declare herself an Olympic athlete.

Determination. For good or bad, Swaney showed us determination. It may not have been the rising at 4 a.m. to get in additional practices determination or the “one more run” to work on a new skiing trick determination, but yet Swaney determined that she would succeed within the established system.

Mediators should similarly be determined to move the mediation process forward especially when the optimism of the parties wanes. Mediation participants and their counsel way too quickly and way too often seek to claim impasse in mediation negotiations. A mediator must be determined to keep momentum. Here are a few examples of how to move issues and people forward when parties veer toward the abyss of impasse.

Compel the parties to think through the positions and interests of their adversaries (walk a mile in their shoes). First, have a participant create a list of what is believed to be needed and what is desired in any settlement. Then have the same participant list out what is believed that the adverse party needs and wants in settlement. These lists can be used to illustrate how much agreement has already been achieved, the key issues in dispute can be narrowed, and, perhaps, new areas where one party can compromise may be presented. There could be easy “gives” which become apparent (e.g., offering confidentiality of any settlement) which could rekindle negotiations.

Alternatively, the mediator can change the focus. If parties are hung up on monetary terms, have the parties work on settlement structure for any resolution. There may be non-economic terms which prove critical for one or more parties. Being able to address those matters provides a sense of accomplishment and progress. These non-economic terms may be new areas where parties can demonstrate further willingness to compromise.

Force the parties to confront the best alternatives and worst alternatives to settlement. The litigation process is replete with risks, only some of which can be quantified. The costs of proceeding with litigation are always steep. Finality may provide emotional or financial benefits. A settlement could permit re-establishment of business relations or an agreed upon end of such entanglements. Clearly place all such issues in play for consideration.

There are many other examples of steps to take to not get stuck in impasse (we can save those for further exploration in another article). The point remains that mediators and the participants should be determined to break through perceived impasses. Swaney remained dedicated to the process which she knew would result in her ability to achieve her goal.

As with Swaney, moving beyond supposed impasse will require work and some of those efforts may not be traditional. Some of the parties may not like to work harder. Some of the parties may resent that they are being encouraged to think beyond their comfort zones. Trust, and be determined, in the mediation process to achieve the goal of bringing the parties toward agreed upon, voluntary resolution, even if you receive some less than positive comments along the way.

St. Valentine, Geoffrey Chaucer and Mandated Mediation

Just who was St. Valentine and why do we celebrate courtly love every February 14? How does the 14th-century Geoffrey Chaucer connect with the 3rd-century Valentine and what could it possibly have to do with compulsory mediation? After researching St. Valentine to try to find the origins of Valentine’s Day celebrations, these historical figures and the current ADR hot topic of mandated mediation came together, at least for me. Let me try to connect the dots.

Surprisingly little is reliably known about St. Valentine of Rome. He was a 3rd-century Roman Catholic priest, and perhaps a bishop, who converted many to Christianity and secretly performed many marriages. These marriages of the recently converted Christians defied an edict of Emperor Claudius Gothic (Claudius II). Claudius II desperately needed young men to serve in the military on various Roman campaigns. The Romans enlisted unmarried men as they believed husbands would be too consumed with spouses and families to be effective soldiers. Valentine’s actions cut into the pool of available talent for Claudius II and protected the recently converted.

Claudius II had Valentine imprisoned in about the year 269. A daughter of one of Valentine’s jailers suffered blindness. Valentine laid hands on the girl who then recovered her vision. Claudius II, apparently impressed with this report, had Valentine transferred to Claudius II’s direct custody. Eventually, Valentine sought to convert Claudius II to Christianity. At that point, Claudius II ordered Valentine’s execution. On February 14, Valentine was beaten, stoned and then beheaded. Valentine left behind a note which read “Your Valentine.”

The Catholic Church recognized Valentine as a saint who was martyred for his faith. February 14 was set as the feast day for St. Valentine. For more than the next 1000 years, no special St. Valentine’s celebrations followed except the annual, spiritual recognition of his martyrdom on his feast day.

Enter Geoffrey Chaucer and his work, Parlement of Foules. Chaucer described an established tradition, posing as historical fact, about St. Valentine and February 14. No record exists of any courtly love celebrations on February 14 prior to the year 1375. Yet, at that time, Chaucer penned that both birds and people come together in courtship on February 14: “For this was sent on Seynt Valentyne’s day / When every Foul cometh ther to choose his mate.”

Thereafter, “scholars” documenting the lives of saints relied on the Chaucer historical reference to associate St. Valentine with lovers and February 14 as the day to celebrate romance. Chaucer’s charade has lead us to candy hearts, greeting cards, flowers, and long waits at any restaurant on February 14. The apparent sole remnant of actual tie between St. Valentine and Valentine’s Day is the February 14 sign off “Your Valentine”.

As Valentine’s Day has evolved, or morphed, into the current celebration of love and romance, it may not matter terribly much how we got here. Even if viewed as a “Hallmark Holiday”, Valentine’s Day can be approached with basic recognition for those we love and care about. If you receive a token with the tag line “Your Valentine”, perhaps you can marvel at the cottage industry which has blossomed from two poetic lines which flowed from Chaucer’s quill.

Nice story. How does it connect with mandatory mediation? As the mediation process matures, tribunals recognize it more and more as a fundamental resolution tool. In some jurisdictions, mediation has grown beyond commonplace to become mandated. The concept of forced mediation does not readily reconcile with the definition of mediation which starts with a voluntary process by willing participants.

In Vancouver, British Columbia, parties are obliged to mediate once one litigant requests mediation. A party may object to mediation, but that party must move for relief before the court and establish good cause to avoid mediation. Courts have found pessimism as to outcome, hostility between the parties and difficult international logistics as failing to qualify as proper grounds to refuse to mediate. See, Matsqui First Nation v. Canada (Attorney General), 2015 BC 1409; and Executive Inn Inc. v. Tan, 2008 BCCA 93.

The Civil Justice Council for England and Wales issued an Interim Report in late 2017 identifying the Pros and Cons of mandatory mediation as those jurisdictions are heading in that direction. Both Vancouver courts and this Civil Justice Council recognize the high success rates of mediation, the cost-effective nature of the mediation process, the ability of mediation to narrow issues in disputes even where the mediation does not fully succeed, and the flexibility offered in mediation to craft solutions beyond the legal claims.

These and other mandatory mediation programs appear at odds with the fundamental concept of mediation as an entirely voluntary process. Part of the reason for the voluntary nature is that the parties will trust the confidential process so as to more freely exchange information and positions, and be prepared to compromise. If parties are compelled to mediate, this psychological “buy in” may be absent. Mediators may initially be challenged simply to get parties to accept the process forced upon them.

Perhaps these reasons are why we do not have many mandatory mediation programs in the U.S. Or do we? Many local court rules and standing case management orders at both the federal and state levels include obligations for mediation or other forms of ADR prior to a case reaching trial. Numerous courts now include some form of Early Neutral Evaluation (ENE). Quite often, parties mediate to satisfy the ENE obligations.

In addition, as with many litigators, I have participated in numerous Cases Management Conferences where the judge declares that the case appears a good candidate for mediation and inquires if the parties agree. Uniformly, the lawyers respond: “Of course, Your Honor. We will get that scheduled right away.” These mediations are mandatory in every sense of the word. I always longed to hear a lawyer answer that judicial inquiry with: “No, Judge. That is a terrible idea. The parties can barely stand to be in the same room and we would rather fight it out in your courtroom.”

When analyzed fairly, numerous mediations in the U.S. systems have been and remain mandatory even if lacking that specific label. Frankly, by memory, I cannot distinguish success rates between truly voluntary mediations and those which initiated due to some obligation. While I admit that this recollection survey is both personal and not scientific, the rates of ultimate success are the same. Further, I cannot recall any meaningful objection to the process itself being raised by mediation participants based on the fact they felt obliged to be in attendance. At most, I recall one participant stating that he was at the mediation merely to check off a box. After that statement, the party became fully engaged in the mediation.

As with the current over-the-top Valentine’s Day celebrations, it does not meaningfully matter how we got here. Once parties become engaged in mediation, regardless of the source, it appears that the process takes over as guided by the skilled and trained mediator. Chaucer has made me rethink my initial negative response to the concept of mandatory mediation.