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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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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