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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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