Over the last couple of months, I have posted blogs entitled Anger Management (June 13, 2014), Good Faith (July 3, 2014); Listening for the Emotions (July 18, 2014); Which System is In Control? (July 25, 2014) and Vengeance Shall Never be Yours August 1, 2014). On numerous occasions, I have also discussed the notion of preparing for mediation rather than just attending and "winging" it.
Most of these blogs dealt with the emotional aspect of negotiation and how emotions (with their attendant cognitive biases) can really sabotage the whole process and make things a lot worse than they would have been if the parties had prepared for mediation. The Good Faith blog is self descriptive, addressing one's sincerity at mediation.
The other day, I had a mediation that seemingly ties all of these blogs together or least provides a very graphic example of the potential disaster that awaits. It provides much fodder for thought and I will leave it to you to ponder all of the issues.
It was a class action matter. Evidently, the parties wanted an early mediation, before engaging in extensive discovery and filing motions to have the class certified. As it turns out, the mediation may have been premature. (See my recent blog entitled "To Mediate Now or Not to Mediate Now, That is the Question.").
At the start of the mediation, I went into defense counsel's conference room to say hello and soon learned that counsel believed the class size to be less than ten persons. As both defense counsel and I had received Plaintiffs' counsel brief stating the class size to be much much larger, I suggested that after I introduce myself to Plaintiffs and discuss the matter with them for a bit, the attorneys and I meet to discuss class size as this directly impacts the potential range of the settlement. Defense counsel agreed.
After meeting with plaintiffs and counsel, I asked counsel to join me for a separate meeting. At this separate meeting, defense counsel indicated she had some documents evidencing that the class size was quite small. Copies were made so that plaintiffs' counsel could review them in the peace and quiet of her own conference room and also discuss them with her clients.
After awhile, I went in to plaintiffs' conference room to discuss the documents. Plaintiffs' counsel advised that she thought the documents were fake, untrustworthy and did nothing to change her mind about the size of the class. Plaintiffs' counsel wanted me to convey this to defense counsel. I did so and as one may guess, it was not well received.
However, defense counsel still wanted to try to resolve the matter. In answer to some of plaintiffs' other concerns about class size, defense counsel provided me with the responsive information. When I conveyed it to Plaintiffs' counsel, her response was to totally discount it. (Reactive devaluation?) Again, Plaintiffs' counsel insisted that defense counsel "prove" it by providing much more specific detail. Was Plaintiffs' counsel truly prepared for the mediation or was the mediation being used to obtain information, easily?
As one might surmise, by this time, Defense counsel was getting upset as she had come to mediation in good faith with the view of settling the matter. However, it seemed that plaintiff's counsel was unwilling to do so, at least based on the much smaller class size suggested by defense counsel.
At about this point, plaintiffs' counsel left to attend another mediation, leaving another attorney who was present to fill in. This second attorney was not really involved in the case; she was just helping out plaintffs' counsel. I advised the defense counsel of this development.
Getting the distinct impression that this mediation would not end in a settlement, defense counsel requested that I retrieve the copies of documents previously provided to plaintiffs' counsel as they contained valuable information that was shared for purposes of mediation and in hopes of settling and not as "free" discovery. When I made the request to the second plaintiffs' counsel, she refused, advising that she had spoken to plaintffs' counsel by telephone who would not authorize the return of the documents. I suggested that the second plaintiffs' counsel discuss it directly with defense counsel, and they did. The second Plaintiffs' counsel still refused, stating she was not authorized by plaintiffs' counsel to return the documents; she was only following orders. Defense counsel, stating that plaintiffs' counsel was not authorized to have the documents, advised she would call the police. The second plaintiffs' counsel still refused, again advising that plaintiffs' counsel would not authorize her to comply with this request. So, defense counsel called the police. After advising the second plaintiffs' counsel of this, she still refused to return the documents, again following the instruction of plaintiffs' counsel based on her most recent telephone call with plaintiffs' counsel.
While waiting for the police, I suggested that the documents be turned over to me, and I would hold them until this was sorted out. Again, the second plaintiffs' counsel refused.
The police arrived and spoke to each counsel and to me. They advised that defense counsel could make a private citizens arrest as the refusal to return the documents or unauthorized retention of them constituted theft, and they would execute the arrest. Even though they told the second plaintiffs' counsel this, counsel still refused to turn over the documents, again based on the instructions she was given. At this point, the police executed the arrest and placed the second plaintiffs' counsel in hand cuffs. The police asked if she wanted to reconsider before being taken to the station and booked. She reconsidered and allowed me to retrieve the documents and hold them until the parties or the court sorted out the issue.
Obviously, the matter did not settle. Although defense counsel made a settlement proposal based on the much smaller class size, plaintiffs' counsel refused to consider or provide a counter, insisting that the proposal be based on the much much larger class size.
The issues raised are numerous. Were the parties prepared for mediation? Were they there in good faith? Were they there to settle the matter or for other reasons? Were their emotions driving their actions and reactions? Were they managing their anger and frustrations? Were they giving any thought to how these events will affect their relationship and attempts to settle during the rest of the case? During the life of this case and otherwise, will either attorney ever trust the other? Will they ever have any rapport? Or have any sort of working relationship with each other? Were they each acting in an ethical manner? Or with professionalism and civility? Or, in the best interests of their respective clients? And finally, were they taking this matter much too much seriously ? Was it really worthy of the threat of going to jail?
In addition, issues are raised as to mediation confidentiality. As all of this occurred within the context of a mediation, can any of it even be mentioned to the court, (or otherwise) should one or the other file a motion concerning the documents in my possession? Are the documents even usable in this litigation or are they inadmissible due to mediation confidentiality?
This fact pattern reminds me of having to take a bar exam in which the object is to spot as many issues as possible. I am sure that I have missed some; I will leave those to you.....
By Phyllis G. Pollack