The Legal Advocate

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Monthly Archives: February 2014

Mediation Part Three: Excerpt from The Art of Mediation, Second Edition

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Art Of Mediation coverThis workbook is designed for basic mediation training. Authors Scott Hughes, Mark Bennett, and Michele Hermann take NITA’s performance-based training for trial lawyers and adapt it to training for mediators. The Art of Mediation includes details that are often overlooked such as optimal seating arrangements during meetings. The excerpt and graphic below take a look at that section of this book.

Excerpt:

Some mediators prefer to work around tables, others do not like to use them unless absolutely necessary because they form a barrier between people. If the mediation requires reference to objects or documents, it may be inconvenient to work without a table. For more relational mediations, tables can be physical and psychological components that keep people apart or help people feel more secure.

Chairs should be positioned so that everyone can see and hear other participants easily. We prefer to keep a distance between the chairs of the parties, which prevents them from leaning and touching or gesturing at the other party in threatening or offensive ways. We also want the chairs of the parties to be at an angle to each other so they can easily make eye contact but are not in a confrontational face-to-face physical position.

In large group sessions, semicircular seating arrangements facing a wall on which flip chart pages are posted are often helpful. When observers are present but not  participating at the table, a “fish bowl” offers a logical and effective format, putting the participants in the center and the observers around them.

mediationSeatingOptions

 

If you are interested in purchaing a copy of this book, you can find it in print and as an eBook in EPUB and MOBI formats.

Book Report: NITA’s MRS v. Riverboat Queen Case Files

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reviewed by NITA faculty member and guest blogger, Karen Steinhauser 

caseFileMSRvsRiverboatQueenEver since travelling to  New Orleans and dining on a riverboat, Fred Glenn and his wife dreamed of operating a restaurant on a boat. That dream became a realty four years later with the launching of The Riverboat Queen, a paddleboat that Glenn had designed and built. Then his dream turned into a nightmare when he got a terrible phone call telling him that his dream, his livelihood, had sunk and had been found on the bottom of the lake.

The nightmare only got worse when he hired Marine Recovery and Salvage to raise the boat and they couldn’t get it done, and he had to fire them and hire another company. Then, even though his insurance wasn’t due to be renewed until three days after he lost the boat, the insurance company refused to pay the insurance claim, claiming that Glenn had not properly maintained the boat and that he intentionally sunk the boat.

After another company was able to raise the boat, the problems continued when Nita City terminated Glenn’s lease for the dock where The Riverboat Queen had been docked for years, claiming that he violated the law and did not have the boat insured.

Finally, to add insult to injury, the State of Nita brought criminal charges against Glenn, alleging (1) a violation of the Nita Water Hazards Act in that he recklessly caused the sinking of the boat, creating a condition that could lead to discharge of pollutants into the lake, and (2) attempted insurance fraud alleging that Glenn submitted a false claim to his insurance company.

MRS v. Riverboat Queen, by Cheryl Brown Wattley of UNT Dallas College of Law, is a unique case file in that it really contains four separate case files each utilizing different claims, theories of liability, and defenses, but all of them sharing the same witnesses. It can provide instructors with the opportunity to teach advocacy in various types of legal scenarios while still being able to utilize the same basic witnesses and same basic facts for each of the case scenarios.

The cases are:

  • MRS v. Fred Glenn dba Riverboat Queen, involving a breach of contract claim, with a counterclaim of fraud and misrepresentation;
  • Fred Glenn dba The Riverboat Queen v. Insur-All Insurance Company, involving a bad faith claim and breach of contract being brought against the Insurance company;
  • Fred Glenn dba The Riverboat Queen v. Nita City, involving a breach of contract and landlord/tenant dispute; and
  • State of Nita v. Fred Glenn, a criminal case file with unusual charges of violating the Nita Water Hazards Act, as well as insurance fraud.

The file contains 52 exhibits including contracts, memos to the file, photographs, and emails. The three civil case files all present issues not only of the substantive claims, but also as to how the damages for each of the claims are calculated. Many of the witnesses overlap in the various case files depending on how many witnesses instructors want to use. The witness statements themselves are unique because while there are depositions for each witness, there are supplements to the depositions that provide additional information from the particular witness corresponding to the individual case file that is being used.

Mediation Part Two: Mediation Ethics

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re-posted with permission from author Joe Markowitz and his blog, Mediation’s Place

joeMarkowitzAt a program I participated in this week (my part is summarized in the two posts below on choosing a mediator) co-sponsored by the Santa Monica Bar Association, one of the panelists, mediator Mark Fingerman, gave an informative presentation on mediation ethics. The problem of ensuring that mediations are conducted in a fair and ethical manner is complicated by strict protections for mediation confidentiality that exist in California. While confidentiality is generally agreed to be necessary to the process, prohibitions against introducing evidence of misconduct alleged to have occurred during mediations can potentially give free rein to attorneys—and mediators—to pressure or deceive parties into agreeing to settlements to which they might not have agreed otherwise. In fact, mediation seems in some ways designed to encourage parties to let down their guard and trust one another, and that trust may not always be justified.

Fingerman noted that other than the intrinsic satisfactions derived from acting as a moral and ethical person, there do not seem to be many effective tools available to prevent fraudulent conduct that may induce parties to enter into a settlement agreement. He did, however, suggest one possible safeguard, a common technique used in corporate deal-making, which is to include in the settlement agreement a recitation of any important representations upon which the parties relied, and warranties by the parties making the representations. Such statements in a written settlement agreement are not shielded by mediation confidentiality. So if any of those representations can later be shown false, the aggrieved party at least has the opportunity to set the agreement aside.

Can we design other effective safeguards to prevent coercion and fraud from tainting settlement agreements arrived at through mediation without unduly threatening confidentiality? Somehow, parties have to be given adequate time and space to make sure they are not making agreements they will regret in the morning. But it is often only after a long, grueling day that has made all the participants tired and confused that the parties’ own counsel, and frequently the mediator, urge them to make the final concessions necessary to get a deal done. Under such conditions, they may not have the time or capacity to think through their decisions, and they may be swayed by false information. But if we were to build in a cooling-off period, or allow parties to rescind their agreements within a number of days, we would have to accept the fact that a lot of settlements would come unraveled, and in most cases that would not benefit the parties.

Does this mean that mediation is an inherently flawed process, as opposed to the traditional justice system, with its many rules and procedures designed to prevent fraud and coercion? Perhaps, but the traditional justice system doesn’t always do such a great job of preventing or policing fraud either.  Let’s start with the fact that there is an awful lot of fraud out in the real world. It doesn’t just exist in the conference rooms where settlement discussions are held. Victims of fraud—probably the number one crime in the world in terms of both economic impact and occurrence—are often told when they call the police or the district attorney that the department doesn’t have the resources to pursue this crime and that fraud victims should handle it as a civil matter. But if they resort to the civil justice system, victims of fraud find that the courts set a high bar for pleading and proving fraud, that judges and juries tend to blame the victims of fraud for their losses, and that they are often reluctant to compensate them. I have frequently had to remind victims of fraud just how difficult it is to prove those claims and obtain adequate compensation.

Not only is it difficult to prove fraud in court, court opens up opportunities to commit even more fraud. It should not shock anyone to learn that witnesses sometimes lie under oath. Whenever a jury has to choose between two diametrically opposed stories, it’s likely that one side or the other is lying. But the legal system rarely prosecutes such perjury. And sometimes the trier of fact accepts the wrong story.

Remedies for fraud and coercion are difficult to obtain in mediation as well as in the traditional justice system. Sometimes fraud will occur in mediation just as it sometimes occurs in court. The most effective protections against fraud may still reside in being cautious to accept anything anyone tells you at purely face value, while trusting at least to some extent in the innate desires of most of us to try to do the right thing most of the time.

Joe Markowitz is a mediator and trial lawyer with an office in downtown Los Angeles. He has more than 30 years of experience representing clients in intellectual property, employment, and other commercial disputes, and about 20 years of experience conducting mediations both privately and referred by the federal and state courts. Mr. Markowitz currently serves as president of the Southern California Mediation Association.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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