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Mediators share ADR session 'horror' stories

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Indiana Lawyer Focus

As alternative dispute resolution continues to increase in use and attorneys and their clients more regularly look outside the courtroom for options other than litigation, tales of challenging – sometimes shocking – scenarios are being shared, along with tips that helped mediators survive and even succeed in the scariest sessions. With Halloween approaching, experienced Indiana mediators recently shared some “nightmare scenarios” that they’ve encountered that might provide a laugh or lesson for their colleagues.

Mediating with the dead

casey-james-mug.jpg Casey

Evansville mediator James Casey handled an estate-related ADR session, and the 40-something-year-old son of the man whose estate was being discussed appeared with a box that he held throughout most of the session. The mediating lawyer didn’t think anything of it since many parties bring in evidence or items they believe might help the mediators understand the value of an estate.

At one point, the man referred to his dad and then showed Casey that the box was full of his dad’s ashes. That didn’t become a problem until later when “dad started having strong opinions and disagreeing with counteroffers on the estate.” Eventually, Casey said he and the lawyers realized they had to mediate as if the father was in the room, so they started trying to direct comments to him and eventually “got dad to come around so that everyone seemed happy with the position reached.”

Pulling a resolution from a hat

Casey shared another story involving a mediation between two brothers who had a strong German heritage. The brothers were given property by their parents, but they couldn’t get along with each other and decide who retained ownership. A division of property was orchestrated, and Casey tried to mediate privately with each brother. However, even when they initially agreed on a preference, one of the brothers would change his mind and disagree. “Clearly, the only reason was that he wanted what his brother would have and to make his brother unhappy.”

Eventually, they labeled the property divisions A and B and drew them randomly out of a hat, with the brother having the earliest birth year able to pull from the hat first.

This isn’t trial

abeska-tim-mug.jpg Abeska

Tim Abeska of South Bend mediated a case in which opposing counsel for the plaintiff used the joint session as a venue to deliver what was essentially an opening statement at trial, complete with hyperbole and negative comments about the defendant. This tactic completely poisoned the “settlement atmosphere” and the mediation quickly ended as a failure.

Mediating with a 6-year old

Carmel mediator Elisabeth Edwards mediated for a divorcing couple three times and couldn’t get the parties to stop arguing. At one point, the session reached a moment when she literally had to hold her hands up and tell the two to stop talking to each other that way. Edwards said it’s like mediating with a 6-year-old, except she has more control over her own child of that age. At times, she had to block the door to stop participants from packing up and leaving the room so that she could keep the mediation moving.

edwards-elisabeth-mug.jpg Edwards

That’s the key overall to making these emotional impasses turn into resolutions, she said: keeping everyone in their chairs to calm down and continue discussing possible resolutions. “If you stop, everyone gets entrenched in their positions, and it’s more difficult to persuade them of what’s middle ground.”

Feuding neighbors

Janet Mitchell of Fort Wayne said two of the most ferocious mediation participants she’s ever worked with were a sheriff’s deputy and his elderly neighbor who were locked in a decades-old series of feuds. Their antics, which included surveillance and structural markers, affected their livelihood and health, not to mention reducing their neighbors’ property values. Mitchell co-mediated with them three times over a period of six months. At the first mediation session, she had them bring along support people, had them sign strict behavioral rules for mediation, had them leave weapons out of the mediation building, had them sit at tables that were two tables wide and provided both parties easy escape access with plenty of breaks to help calm high blood pressure concerns.

No weapons were brought to the second session, and no blood pressure breaks were requested. At the third session, however, the elderly neighbor stood up with fists raised and said: “Let’s settle this here and now!” The deputy stood up immediately with fists raised. Mitchell got them out of the “fight or flight” response by asking them to sit down, and she calmly reviewed the agreements they had made along with timelines and other details. Mitchell has found she can lead an emotional disputant back to civility by talking about dates, times, and the series of events.•
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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