Mediators share ADR session 'horror' stories

Back to TopCommentsE-mailPrintBookmark and Share
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.•


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues