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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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