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IBA: Making Choices in Mediation

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By John C. Trimble, Lewis Wagner, LLP

One of the true ironies associated with the popularity of mediation is that many parties are refusing to negotiate outside of mediation. This is unfortunate and wasteful. Smart lawyers realize that they can still settle a case without mediation, and they are reserving mediation for the tougher situations.

The most basic rule of choosing a case for mediation is that about any case can be mediated. About the only thing that will make a case unsuitable for mediation is if it is too small to justify the attorneys fees and mediator fees associated with the process. Even so, some small cases end up in mediation because the costs of going forward to trial are even greater than the cost of mediation.

trimble Trimble

One thing to remember in choosing cases for mediation is that there are no hard and fast guidelines as to what makes a case attractive for mediation. For example, some may take the position that a case cannot be mediated when there is a dispositive issue that is awaiting ruling by a trial judge. Even in such a case, the parties may be in a position to assess the possibility of the ruling going for or against them, and they may be willing to compromise based upon their assessment of the risk. Another example may be the case in which a party is afraid to settle because of the precedent that could be set by paying a claimant even one dollar. Such a case may be susceptible to settlement if a confidentiality agreement can be obtained. A third example may be the case in which the person prosecuting the claim is motivated by principle. The case may be settleable if the person’s needs can be met even if principle cannot necessarily be fully addressed.

The bottom line is that every situation that is going to cost a client money to try should be submitted to mediation if it cannot be settled beforehand.

Once the decision to seek mediation has been made attention turns to selecting a mediator. Deciding who to choose is an imprecise science. However, it is a step in the mediation process that must be taken very carefully. You must begin by weighing the temperament, knowledge, age, experience, and personality of your client, the opposing attorney, and the other party. It also helps to have some idea as to which of the parties or attorneys in the case will need the most persuasion in order for the case to settle. Depending upon the mix of these factors, there are some cases in which you need a mediator who has knowledge in the area of law that is the subject of the case. In other caes, you may need an older mediator; you may need an aggressive mediator; or, you may need a patient mediator.

If you choose a mediator from among a group of mediators who are known to be highly experienced, then you are probably not likely to need someone who has a great deal of specific experience in particular field of law. On the other hand, if you are handling a case in which your opposing counsel and opposing party do not know a great deal about a particular area of law, it sometimes helps to have a mediator who has some credibility in that area.

In choosing a mediator, it is advisable to call other attorneys who have used that mediator to find out his or her strengths and weaknesses. If other lawyers have had a good experience with the mediator, then you probably will too. The question is sometimes asked whether is its detrimental to a defendant to have a plaintiff’s attorney serve as a mediator or detrimental to a plaintiff to have a defense attorney serve as a mediator. The answer to that question boils down to who needs to be persuaded. For example, a plaintiff’s attorney serving as mediator may be more persuasive in getting a plaintiff attorney and plaintiff to compromise than a defense attorney would (and vice versa).

What you definitely don’t wish to do is to simply strike a name from a court-approved list without knowing something about the person you are choosing.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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