Arbitration & Mediation

Difficulty Dealing With the Dichotomy.

By Christopher Annunziata

This week, I had a lot of difficulty dealing with the dichotomy between Mediator and Lawyer. I spent 14 of the last 15 years studying or practicing law and thinking (and acting) like a lawyer. It is a difficult habit to break.

Of the 6 court-referred cases I handled this week, 4 were collections matters - an increasing number of cases on our local dockets. None settled. One case has a reasonable chance of being dismissed in the debtor’s favor — the name on the account was the same, but there were different addresses and Social Security numbers. It looked like ID theft and the plaintiff agreed to investigate further. Another came close, but the plaintiff’s representative didn’t have the authority to accept the last offer and needed to consult with someone. That will likely settle without me.

The others, however, seemed “open and shut” — in favor of the plaintiff/creditor/collection agency. The defendants were the persons listed on the accounts. They didn’t dispute the charges. They readily admitted that they stopped paying on the account (for whatever reason). They had no legal defenses. Someone, somewhere, however, had convinced them that they could get the cases dismissed on technical legal grounds. And that was where my difficulty began.

When cases involving pro se parties hinge on legal technicalities, they become nearly impossible to settle. The parties lock in on their position and the only way they budge is if I could tell them that their legal technicalities are bogus urban legends and 999,999 times out of a million, the Court is going slap them with a judgment. Of course, I am bound by the court rules from conducting evaluative mediation, so such a pronouncement would probably result with me in some hot water.

I fully understand the principles behind facilitative mediation. I understand that we should try to get the parties to think beyond the conflict. Think about collective interests. Win-Win. Increase the pie. That is all pure BS when it comes to these types of cases.

I tried “reality checking”. I tried playing Devil’s Advocate. I asked point blank what chance they thought they had for success. I asked whether they knew anyone who had successfully asserted these defenses in court. I talked about their best and worst case scenarios (I really dislike BATNA AND WATNA because lay people and most lawyers look at you like you have 3 heads when you use those terms).

In return, I got mainly blank stares or repeated assertions that ?I know I?m right and I don?t have to pay these people.? One defendant actually told me he wouldn’t talk about a settlement unless someone, “some lawyer or judge or someone” told him he was wrong. He was wrong, but I knew I couldn’t be the “lawyer or judge or someone” who told him that. Directly, at least.

In the end, their stubbornness won out.

Full post as published by CKA Mediation and Arbitration Services Blog on August 29, 2008 (boomark / email).