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Knowing when the time is right

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Knowing when to begin mediation can play a significant role in the success – or failure – of negotiations. And understanding when cases are ripe for negotiation comes with experience. South Bend mediator and arbitrator Joseph Simeri said no formula exists for determining when to mediate a case.

“This stuff is really not a science, it’s an art. I can’t tell you what I do or how I do it. I don’t have a perceived game plan, I just try to get a feel for people, and how they feel for me,” he said.

Who, when and why

The type of case plays a role in finding the right time frame for mediation. For example, while employment matters may be settled quickly, in personal injury cases, early mediation may not be appropriate if all the facts are unknown.

Indianapolis attorney and mediator Denise Page, with The Mediation Group, mediates primarily personal injury and wrongful death cases.

“What I see makes a mediation blow up and not settle when it’s too early is that all the relevant medical records haven’t been given to the other side. If the medical causation or the damages – loss of income, loss of inventory in a fire loss – if it’s not documented to the satisfaction of the other party, it’s too early,” she said.

Conversely, resentment and frustration can build over time. When parties wait too long to attempt mediation, they may become less likely to cooperate.

“It’s harder to let go of the notion and maybe entertain they’re not totally right,” Page said.

Anderson solo attorney and family law mediator Marianne Woolbert said that while she has never had a case in which she believes parties attempted to mediate too early, she thinks that in divorce, mediation may be ineffective in reaching an agreement if the value of the couple’s belongings hasn’t been assessed. Otherwise, she said, early mediation works well.

“I’ve had people come to see me that want to try to avoid divorce even before they filed and basically want to mediate their lives,” Woolbert said.

Simeri handles a wide range of cases, and he said early mediation is particularly effective in employment matters, often because a worker who has a complaint about an employer has no legal remedy.

“A lot of times, the employee’s maybe just looking for a good reference, or for the employer to not argue with severance pay,” he said.

Simeri said the Equal Employment Opportunity Commission’s internal mediation program, RESOLVE, has been particularly successful in keeping employee complaints from ending up in litigation. Its external program appears to be effective as well – in 2010, the EEOC’s external mediation program reached a resolution in 73.4 percent of cases.

At early stages, Simeri said, neither the employer nor employee has invested a lot of money and time into defending against or pursuing a complaint, and that makes resolution more likely.

Recognizing the right time

You won’t find a “fundamentals of good timing” course in law school, so experience is the key to knowing when to mediate.

“I didn’t learn any of it in school,” Page said. “Each case is different, too. There may be one case that is perfect for settling early, and then there may be a case where there are so many issues that are going to have to be researched, documented, given over to the experts – you know that case is going to be pending for a couple of years.”

Mediators can help their clients recognize when the time is right, too.

Page said some clients may not realize just how long they may have to wait for a case to go to court. Once they’re aware that they may have to wait up to two years for a court date, they may be more inclined to work out an agreement in mediation.

Early on, when a plaintiff’s attorney working on a contingency fee hasn’t invested extensive work in a case, a settlement will generally allow the plaintiff to recover more money.

“If a party is paying their attorney by the hour, when it’s in the early stages, you can point out to them, ‘You’re going to be spending a lot of money on this case,’” Page said.

Setting the pace

Page said that while she tries to keep the process moving, she also recognizes the importance of letting the parties work out their differences at their own speed.

“There are times when somebody tells me, ‘You’re going too fast,’ so in that case, I slow it down,” she said. “Sometimes it takes the passage of time for people to cool off a little bit – there’s something about that going back-and-forth process that really works.”

Woolbert said that generally, she can discern right away whether the parties aren’t going to come to an agreement. But with experience, she’s also learned that maybe one mediation session just isn’t enough time, and that they may need to meet again another day.

“Once you get into the process, you kind of get a feel – it’ll happen as quickly as the parties want it to happen,” Woolbert said.•
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. 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.

  4. 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.

  5. 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)

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