Mediation Advocacy and Practice - Essay Example

Mediation Take Home Exam Part Resnick vs. Stevens Realty The mediator in Resnick vs. Stevens Realty appeared to adopt a transformative and evaluative style. The evaluative style was evidenced by the focus on the legal issues as opposed to the parties’ interests. The transformative style was evidenced by the mediator’s attempt to transform the relationship between the parties. The plaintiff, Josh Resnick came into the mediation asking for a settlement of US$110,000 and the respondent offered to settle the case for US$30,000. With the mediator acting to transform the relationship by honing in on the legal issues of contributory negligence on Josh’s part and the landlord respondent’s liability, the parties were able to see each side differently and settled the matter for US$65,000 (Resnick vs. Stevens Realty). The mediator used caucus sessions for the most part. The first session consisted of having both sides state their case with probing and questioning from the mediator. Once both sides presented their cases, the mediator moved into caucus sessions. He brought with him, 15 years of litigation in the area of personal injuries and let both sides know in his introduction that he was very familiar with how lawyers handled these cases, how judges ruled and how jurors responded to these kinds of cases. Even so, the parties were informed that there were no certainties with regards to outcome in civil litigation. This in and of itself created anxieties. By choosing mediation, they parties were in a unique position to remove the anxiety associated with outcome and they could control their proceedings and the outcome. I thought this was a good way to get the parties to commit to resolving the conflict themselves. The mediator’s evaluative and transformative approaches appeared to work out rather well. However, there were times during the caucus sessions where I felt he spoke too quickly and put significant pressure on both sides to move the negotiations along. The mediator emphasized that time was running out and they needed to move forward quickly. I’m not sure how long the proceedings lasted and what was the reason for the pressure to move along quickly, but I felt it might have pressured Josh to accept a settlement. I noticed that the parties were wearing the same clothing throughout the video and would assume that the mediations sessions took place in one day. Therefore I am not sure why the mediator pressed the parties to settle the case that day. I was particularly concerned that Josh could not take the pressure since he had been previously diagnosed with post-traumatic stress disorder. If I had been mediating this dispute, I would let the parties know that if they need time to think things through, they should be all means do so and not to feel that they had to reach an agreement right away. I think it is important that the parties feel comfortable with the settlement. I did like the fact that the mediator reminded Josh, that neither side would feel comfortable with the outcome. One party would feel as if he or she did not get what she wanted and the other party would feel that they got too much. However, if they went to litigation, it was quite possible that only one party would come away feeling cheated. This was a good technique for getting the parties to come to an agreement. If I was the attorney representing Josh Resnick, I would have had some concerns about the mediator’s neutrality at first. At the very beginning when Resnikck’s attorney was stating Josh’s case, the mediator appeared to be irritated or bored. His lips were pursed and he fidgeted with his fingers, at times tapping his fingers on his note pad. At one point he took out his pen and began to fidget with it. When it was time to listen to Steven’s lawyer, the mediator appeared to have suddenly become more relaxed. The fidgeting stopped and he appeared to be even more engaged. However, his lips remained pursed. However, the Mediator continued to remain engaged for both sides from here on in and his initial discomfort may have been related to nerves only. If I was Steven’s lawyer, I would have been concerned about the mediator’s neutrality at the end of the sessions. At the end of the session, after a settlement had been reached, he reminded Josh’s attorney that she promised to give him a hug. This of course was in relation to a point in a caucus session with Resnick and his attorney where the mediator asked jokingly, if Resnick’s attorney would give him a hug and kiss if he got Steven’s to settle the matter for US$75,000. Although this was meant to be a joke, it does raise the question of propriety and ethical behaviour. The mediator did not address the issue of confidentiality except to inform Josh that anything he said about his roommate would be confidential. This appeared to be a single promise and related only to one area of evidence and was therefore misleading. I would have asked the mediator to confirm that the all of the proceedings and all of the information shared in the sessions was confidential. When Josh’s lawyer was stating her case, the mediator interrupted her without warning several times, speaking over her, to ask questions. He did come off a bit combative at first, but as time went on he appeared to settle down and by the time Stevens’ lawyer spoke, his questioning was friendlier and more respectful. The mediator kept this approach up with both sides from that point forward. Had he changed his demeanor once again when he questioned Josh’s lawyer it would have indicated bias. I would have therefore done as Josh’s lawyer did: ignore the mediator’s initial interaction, since he changed his approach and appeared to treat both side equally. In the end, it worked out well as the parties did eventually agree to a settlement that they were each comfortable with and therefore exercised the right to self-determination. Part II: Perlowicz vs Smith Elevator Perlowicz’s position is that after serving Smith Elevator as a loyal and committed elevator mechanic for 21 years, he was unfairly laid off. Moreover, Perlowicz believes that the reasons for his termination had been manufactured by the need manager who merely wanted to get rid of the older workers because they were not amenable to kissing the new manager’s “ass”. This belief is informed by what other employees heard and reported to Perlowicz. Perlowicz has no reason to doubt that the new manager wanted to get rid of him because he during his tenure at Smith Elevator, he had always received good customer feedback. As soon as the new manager came on board, the new manager gave him unfavourable reviews despite good customer feedback. Perlowicz believes that the real reason for his dismissal is not because the company is not doing well financially, but because he was not as submissive as the new manager wanted him to be. He had taken issue with the manager’s harsh criticism and had stood up the manager. The manager even demonstrated bias when he sent a 25 year old elevator mechanic to training after Perlowicz left. Perlowicz is particularly concerned about this dismissal since he is 52 years old and the only source of income his family has. Joe Smith, owner of Smith Elevator maintains that Smith Elevator was suffering from financial down-turn. In order to salvage the company and to get it back on track financially, Smith hired a new manager who helped a failing elevator service company turn things around for the better. The new manager came on board with the view that the first step toward financial rehabilitation was in cutting back on staff. This would be done by letting elevator mechanics go who were not as skilled as the others. Perlowicz, unfortunately was determined to be one of those elevator mechanics who was not as skilled as others. Moreover, in the new manager’s opinion, Perlowicz was very difficult to work with. Perlowicz’s replacement (the 25 year old elevator mechanic identified by Perlowicz in his statement) has proven to be ambitious and skilled. He has even taken advantage of opportunities to train as a means of improving his skills. Smith therefore has confidence in the new manager’s decisions and judgements, particularly since the business has been doing much better since he joined the company. Smith goes on to emphasize that the decision to dismiss Perlowicz was purely a sound business decision based on the company’s needs and resources. The decision had nothing to do with discrimination and Smith’s elevator has never been the subject of a discrimination claim. Smith is therefore determined to clear the company’s name. For the purpose of mediation, the main issue is whether or not, Perlowicz’s dismissal is discriminatory on the basis of age. In order for Perlowicz to succeed in this claim, he would necessarily have to prove one of two things: that the company was not suffering from a financial downturn, and that he was dismissed on the basis of his age, rather than on the basis of skill. I do not believe the claim that he was difficult to work with can further Smith’s defence since Perlowicz had been with the company for 21 years and the issue only arose under a new management. It might very well be that the new manager was difficult to work with and as the manager, the manager had a duty to resolve those issues. In any event, it was not the reason for Perlowicz’s dismissal. It appears to be a point thrown in after the fact. I therefore believe that the only two issues are whether or not the business was suffering a financial downturn and/or whether or not Perlowicz was laid off because of his age. If there was no financial downturn and Perlowicz was given this reason for dismissal, it is discriminatory because he was simply picked out from among other employees for dismissal and therefore treated differently and less favourably than other employees. I have seen the evidence and from what I can see, the respondent has proof that there was an economic downturn. It will therefore be for Perlowicz to prove that there was in fact no economic downturn and this is where he should go unless he wants to abandon that argument. The second issue is that Perlowicz was dismissed because of his age. He is 52 years old and still an abled-bodied man. Perlowicz can also prove that he was receiving good customer reviews up the time of his dismissal and was therefore skilled and respected as an elevator mechanic. I have seen the customer reviews and they do speak highly of his skills and delivery of service. The new manager’s evaluation of Perlowicz’s skills are inconsistent with the customer’s evaluation. The onus is therefore on Smith Elevator to explain those discrepancies. Perlowicz is also arguing discrimination in that his replacement, a 25 year old mechanic, was sent to training whereas Perlowicz never had the opportunity. Perlowicz claims that he would have taking the opportunity to train, but was afraid to approach the new manager on the issue. However, there were opportunities for training prior to the new manager’s taking office and therefore Perlowicz will have to explain why he did not take the opportunity for training prior to the new management’s arrival. I would also note that Smith claims that his company had never been accused of discrimination before now. Well, at the same time, it can be argued that Perlowicz had never been described as difficult to work with in his 21 years of service until now. In other words, just because something had never happened before, doesn’t mean it will never happen. Moreover, Smith Elevator has new management and this quite often means changes in management styles. I say this, only to demonstrate to both sides what the issues are and how they may be perceived by both sides. I would ask both sides to think about and discuss these issues going forward. Part III: Soulmeets If I was representing Tony, I would not want to use the Hon. Phyliss Forrest, not because of his evaluative style, but because of his strict adherence to legal precedents. The law does not favour Tony in this case and it would not be to his advantage to have a mediator that not only served as a judge, but looks at how the court would rule in a similar case. Tony’s claim is not fully supported by the law and the judge will likely find many precedents that would indicate a ruling against Tony since his claim is based primarily on a breach of a promise and misrepresentation rather than breach of contract. I would therefore choose between mediators Robert Risher and Jim Folger. Jim Folger’s transformative style is appealing and his belief in self-determination is also appealing. However, since Folger does not offer settlement suggestions, this might work against Tony since on the facts of the case, the respondent unequivocally denies the claim and refuses to acknowledge that the engagement ring was anything more than a gift. Moreover, the respondent has the law on her side. In the absence of a mediator suggesting a settlement, it is very unlikely that Tony will have the matter resolved out of court. I would therefore prefer Fisher over Floger as the mediator. Fisher holds a degree in psychology has experience in mediating disputes of a domestic nature and with small business disputes. Tony’s claim raises both domestic and business related issues. Combined with Fisher’s background in psychology, I believe that Tony has a better chance before a mediator of this sort who is able to look beyond mere legal issues and will focus on the moral wrongs and the consequences of leaving the issues unresolved. I know that he will be using a facilitative style, but he will be conducting caucuses and in doing so, I am sure he will ask questions that will get the parties to think about the possibility of resolving the disputes. This is particularly likely to happen since Fisher uses an interest-based approach to negotiations. I think the other two mediators might lean toward trying to get Tony to withdraw his dispute altogether or to settle for an entirely unsatisfactory payment. If I was representing Cleo, I would definitely want Hon. Phyllis Forrest to act as the mediator. Her evaluative style and experience as a judge together with her reliance on legal precedents favors Cleo. The law is on Cleo’s side since she argues that the engagement ring was a gift and even if she did misrepresent her marital status, she intended to marry Tony once her divorce was final. A mediator with Forrest’s legal background will be more likely to look at the legal consequences of Cleo’s intention in that there is no breach of contract, should she decide there was a contract. Since Forrest uses the caucus style to the sessions, I am confident that she will convince Tony to either withdraw his claim or settle for any deal offered by Cleo since the law is not on his side. Although Fisher and Folger appear to be very experienced in mediator and negotiations, I am afraid that as men, they might feel sympathetic toward Tony’s cause and may push Cleo toward a settlement that favors Tony. I will admit that Cleo’s lies and misrepresentations were morally wrong and I think this might influence the male mediators. Moreover, Fisher’s degree in psychology gives him the upper hand in negotiations. If he wants the parties to resolve the dispute in a way favourable to Tony, he might use psychology in his reasoning and Cleo might fall for it. This is particularly problematic since Fisher uses facilitated interest-based negotiation and reality testing to help the parties create their own resolution. I am afraid, his reality testing might cause Cleo to feel unreasonably guilty and she might forget the important legal grounds that favor her defense. Folger does sound like a good mediator, particularly because of his transformative approach. If he was a lawyer or a judge, that would have worked in Cleo’s favour. However, he is a professor of Communication Science and might not be as convinced of Cleo’s legal standing as Forrest would be. In this regard, Folger’s transformative approach could work to transform the parties’ position and relationship in a way that support’s Tony’s claim. Moreover, Folger’s fee is US$500 per hour and since the issues are hotly contested, this mediation can take a long time and mounting costs could force a resolution that neither party actually wants. The first ground rule that the parties should establish is confidentiality. This particular claim involves highly personal information of a very sensitive nature and should it become known could be embarrassing to both sides. Therefore both parties should agree to keep the entire process private and confidential. Another important ground rule should be for establishing a time limit for sessions. Regardless of which mediator is chosen, the price per hour is relatively high and thus time should be managed to ensure that time is not wasted. It might be a good idea to agree upfront how the mediator’s fees will be split or settled. In order to minimize the risk of bias, both parties should agree to split the fees evenly between them. In the interest of time and expense, the parties should identify the facts that they all agree on and provide a written statement of fact so that time will not be wasted repeating those facts in any of the mediation sessions. This can take place by a meeting between the parties and their lawyers prior to commencing the mediation sessions. They should each establish a time limit for their opening and closing statements as well. If they are sharing the cost of the mediation between them, they will both be conscious of time and will likely manage their time efficiently. Part IV: Question 1: According to the Model Standard of Conduct for Mediators (2005: Standard III(A)), mediators are required to avoid a conflict of interest. In this regard, the issue is not whether or not the mediator can be impartial, but whether or not there are pre-existenting facts that might give rise to a reasonable doubt about the mediator’s ability to be impartial during or after the proceedings. Standard III (A) of the Model Standard of Conduct for Mediators (2005) requires that a mediator recuse himself/herself in situations where a conflict of interest may arise from the mediator’s past or present relationship whether personal or professional with any of the parties to mediator that can indicate a question of his ability to be impartial. While I complied with Standard III(B) of the 2005 Model Standards by conducting conflict of interest checks, I have a conflict of interest dilemma since I had a personal relationship with one of the parties 15 years previously. However, I am not required to recuse myself if I feel that I can be impartial pursuant to Standard II of the Model Standards. Now that I am aware of the potential conflict of interest, I am under a duty to disclose the potential conflict of duty to the parties and let them decide whether or not they wish to proceed with me as their mediator nonetheless (Model Standard of Conduct for Mediators, Standard III(C) see also Uniform Mediation Act 2001, Section 9). Question 2: The mediator is required to promote honesty between the parties in a mediation process (Model Standard of Conduct for Mediators, Standard VI(4)). However, pursuant to Standard V (B) when a mediator meets with a party in caucus sessions the mediator may not inform any other individual of the information received during that session unless the person giving the mediator the information, agrees. Unfortunately, during a caucus session with the respondent, the respondent informs the mediator that he has an insurance policy that is twice as large as the plaintiff thinks. However, the respondent will not permit the mediator to share this new information with the plaintiff. According to Standard V (B), the mediator is under a duty to keep the information private although, Standard VI(4) requires that the mediator promote honesty between the parties. It would therefore appear that the mediator has no choice but to either postpone the proceedings or withdraw. According to Standard VI(B) of the Model Standard of Conduct for Mediators, if the mediator finds that any of the parties, including the mediator is compromising the mediator’s ability to comply with the standards, the mediator may withdraw from the proceedings, or delay the process. I would therefore advise the respondent of the action I propose to take if he does not agree to disclose the information to the other party. If he still refuses, I will withdraw from the proceedings. Question 3: According to the American Bar Association Section of Dispute Resolution on Mediation and the Unauthorized Practice of Law, mediators must avoid practicing law, during the negotiation and settlement process. In other words, the mediator must not give independent legal advice to any of the parties at any time during or after the settlement of a dispute. Moreover, according to the American Bar Association Resolution on Good Faith Requirements for Mediators and Mediation Advocates In Court-Mandated Mediation Programs, the mediator may not report any act of bad faith on the part of a party to a settled mediation process. In order to avoid acting in a way that is inconsistent with the Unauthorized Practice of Law Resolution and the Good Faith Resolution of the American Bar Association, I would only advise Betsy to seek independent legal advice since I cannot give her legal advice and I cannot report the bad faith of the respondent despite the fact that the mediation was court mandated. It would be up to Betsy and her lawyer how they wish to proceed against the respondents’ refusal to abide by the terms and conditions of the mediated settlement. This is particularly important since any relationship with either of the parties after a negotiated mediation settlement could be a conflict of interest (Model Standard of Conduct for Mediators, Standard III). Question 4: Standard I of the Model Standard of Conduct for Mediators requires that the mediator conduct the proceedings with a view to ensuring party self-determination. In this regard, self-determination means that the parties are at liberty to come to a decision and make informed choices freely relative to the outcome and the process. At the same time the mediator is under a duty to protect the integrity of the proceedings (Model Standard of Conduct for Mediators, Standard 1(A)(1)). Based on Standard 1 of the Model Standard of Conduct for Mediators, it is doubtful that Ann is able to exercise free choice. She is not only consistently distraught and complains of headaches, she is also on medication for major depression. It is therefore doubtful that the proceedings can be conducted without the lawyers present, as it seems doubtful that Ann has the presence of mind to concentrate fully on the proceedings and therefore the proceedings should not be conducted unless she is represented. I would adjourn the caucus until such time as Ann’s lawyer can be present to represent her interest. Informed by Standard XI of the Model Standards of Practice for Family and Divorce Mediation I may suspend or end the mediation process since I have reasonable grounds to believe that one of the siblings in the dispute is not in a position to participate in the process effectively. If the lawyers do not agree to participate, I would opt out under Standard XI. Question 5: Mediators are bound to keep all information and communications shared and revealed during the mediation process private and confidential (Uniform Mediation Act, Sections 4&5; Model Standard of Conduct for Mediators, Standard V). However, if the parties both agree, the mediator may share or reveal information and communications shared or revealed during the mediation process (Uniform Mediation Act, Sections 4&5; Model Standard of Conduct for Mediators, Standard V). The Mediator may also be compelled by the application of law or by a court order to reveal information or communications obtained during the mediation process (American Bar Association, Report: Model Standard of Conduct for Mediators). In this regard, confidentiality is not always absolute and will be secondary to the legal process (Gray; Deason). I would therefore first attempt to obtain the siblings’ consent to testify on Ann’s behalf. If the siblings do not agree, I would wait for a court order or subpoena to ensure that I comply with the standards for maintaining confidentiality. Bibliography American Bar Association Section of Dispute Resolution on Mediation and the Unauthorized Practice of Law, 2002. American Bar Association. “Report: Model Standard of Conduct for Mediators.” (n.d.) http://www.americanbar.org/content/dam/aba/migrated/litigation/standards/docs/msc_report.authcheckdam.pdf (Retrieved 13 July, 2013). American Bar Association Resolution on Good Faith Requirements for Mediators and Mediation Advocates In Court-Mandated Mediation Programs, 2004. Deason, Ellen, E. “The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?” Marquette Law Review, Vol. 85, (2001): 79-111. Frenkel, Douglas, N. and Stark, James H. The Practice of Mediation: A Video-Integrated Text. New York: Aspen Publishers, 2012. Gray, Owen, V. “Protecting the Confidentiality of Communications in Mediation.” Osgoode Hall Law Journal, Vol. 36(4) (1998) 667-702. Model Standard of Conduct for Mediators, 2005. Model Standards of Practice for Family and Divorce Mediation, 2001. Resnick v Stevens Realty in Frenkel, Douglas, N. and Stark, James H. The Practice of Mediation: A Video-Integrated Text. New York: Aspen Publishers, 2012. Uniform Mediation Act 2001. Read More