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How we resolve our disputes

Entries in litigation (21)

Monday
Apr242017

Home Sweet Home (sometimes)

I am a baby-boomer. That means that many of my friends and relatives are at that point in life where they are in the process of, or considering, selling the single family home in which they raised their children and moving to condominium or other type of property where landscaping and common elements are taken care of collectively, together with other owners. Often, a homeowners’ association performs those tasks and manages the community. Sounds idyllic. But the legal consequences are too often the opposite. People who haven’t shared residential property ownership with anyone other than their spouse and children since college — 40 to 50 years ago — suddenly have to relearn what sharing means. And, of course, there is no such thing as a free lunch, so they have to pay for the privilege of sharing. Monthly condo or homeowners’ association fees have to be factored into their budgets, along with special assessments and reserve accounts. When things don’t get done, or get done poorly or late, finger pointing begins. Sometimes, the fingers are pointed at the association’s management, board members or other owners. So much for the idyllic scenario. 

When disputes arise between condo or collective homeowners and their association or contractors, litigation frequently ensues.  The resulting litigation can be lengthy, acrimonious and costly. Unfortunately, it seems to be rare for a condo or homeowners’ association to have an alternate dispute resolution provision in their declaration, by-laws or rules. 

Recently, I have represented several clients in buying and selling condos or homes that are part of an owners’ association. Both parties always want to be sure there are no pending special assessments or delinquent monthly dues. Some lenders (including FHA loans) also want to know if there are any unresolved disputes between other owners in the association, or between the association and any of the owners or outside contractors. The pendency of disputes can make it difficult to sell or finance the purchase of a condo or home unit. So it is in everyone’s best interest to resolve such disputes expeditiously. Therefore, I would not be surprised to see more homeowners’ associations and developers include mediation or arbitration clauses in their governing documents. Even existing developments can change their rules to include such clauses, with the owners’ consent. The sooner and more frequently that occurs, the more likely that our Golden Years will not be tarnished. 

Wednesday
Jun222016

Who wants to go first? 

In mediation, the participants often spend much time trying to get each other to be the first to make a settlement offer. It is understandable that neither wants to be the first because they would both like to see how reasonable or unreasonable the other side is going to be. Then they can respond in kind. Fortunately for the mediator, the parties frequently have had settlement discussions before coming to mediation, and those discussions can help frame the initial offers in mediation. However, if that has not happened, it can be difficult convincing one of the parties to make the first move. 

Likewise, it can be difficult to get the parties to agree to enter into mediation at all. Many people, especially attorneys, see an adversary’s request for mediation as a sign of weakness. If they were prepared for trial and convinced they would win, why would they want to talk about settlement? Where I practice law and have litigated the most cases (Milwaukee County), the standard civil pretrial order requires mediation. It allows the parties to select any mediator they want, but if they cannot agree on one, the court names someone by default. In any event, neither party has to request mediation and appear to be unprepared for trial or less than certain of victory.

Unfortunately, this is not the practice in all counties in Wisconsin. Recently, I attended a “view from the bench” seminar in which trial judges gave tips to trial lawyers. One of the judges said he never ordered mediation unless one of the parties requested it. I believe the judge is missing an opportunity to be of service to the attorneys and their clients. The Judge can avoid the parties’ fear of appearing weak and give the attorneys cover by saying “the Judge made me do it.” The opportunity to settle well in advance of trial also avoids the spectre of one of the parties folding on the courthouse steps immediately before trial, thereby giving away the store or leaving money on the table, and wasting scarce court time. 

So, instead of asking the attorneys if they want mediation, a judge’s default pretrial order should require mediation. The Judge should strike the order for mediation only if he finds some reason not to order it. For example, if the case is one of first impression or if a precedent needs to be set regarding a new statute or constitutional provision, it may not be appropriate for mediation. If the attorneys have tried and settled many similar cases against each other, they may be familiar enough with each other and the process so they do not need a mediator to help guide them through it. Otherwise, the Judge would be doing a favor for the parties, their attorneys and the court system by ordering mediation. 

Monday
Apr132015

All that glitters . . . 

This past weekend, I went to see the movie Woman in Gold. It is based on the true story of a holocaust survivor, Maria Altmann, who convinced a young attorney to help her recover some paintings that belonged to her aunt and uncle before WWII, but were taken by the Nazis in Austria. She tried to get the Austrian government to voluntarily return them to her, but they refused. So she sued the Republic of Austria in the United States. Of course, Austria claimed sovereign immunity. The U.S. District Court rejected Austria’s motion to dismiss, and the Court of Appeals affirmed. The U.S. Supreme Court agreed to review it, and again ruled against Austria. That meant the case would return to the District Court for a trial on the merits. At that point, Mrs. Altmann offered to submit to mediation, suggesting that she might agree to allow one or more of the paintings to remain in Austria on public display, in exchange for a certain sum of money. The Austrians refused to negotiate or submit to mediation. However, they did agree to submit to binding arbitration in Austria. Surprisingly, they lost again, even on their home turf. Finally, if the movie got it right, the Austrians suggested a negotiated settlement. Too late. Mrs. Altmann took the paintings back to the United States, where there are now on display in New York City.

As a mediator, I was pleased to see litigation, mediation and arbitration depicted so accurately. I frequently encounter people who do not know the difference. Litigation and arbitration are win-lose propositions. Mediation can lead to a win-win solution. The Austrians could have kept at least some of the paintings in Austria and saved face, as well as creating some good public relations. Instead, they chose litigation and then arbitration, and lost everything, including some good will and (for them) a bad precedent.

It is not unusual for me to hear people say “why should I mediate when I know I’m going to win in court?” They think agreeing to mediation is a sign of weakness and shows that they have some fear they might lose. My job is to convince people that there is nothing to fear in trying mediation. Normally, nothing that is said or done in mediation is admissable evidence if the case does not settle and goes to trial. Many times, the parties find they have interests that cannot be satisfied by a court, even if they win. Outcomes in mediation are not limited to what a court could do. It can be a very creative process, limited only by the parties’ willingness to search for a win-win solution and to look beyond the immediate legal battle. The things I enjoy most about being a mediator are helping people to put their legal battles behind them expeditiously and finding solutions that both (or all) parties can live with. Saving time and money can often be a pleasant by-product.  

Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

Thursday
Feb072013

Hazardous duty?

It has finally happened. A shooting following a mediation session.  I never thought mediators would have to request hazardous duty pay.  Fortunately, it wasn’t the mediator who was shot, this time.  In this case, one participant shot another participant and his attorney.  But I’m sure it will happen someday, if it hasn’t already. It has happened in courthouses and courtrooms.  Given the widespread ownership of guns in this country, and the lax system (if you can call it that) of background checks before a person can buy one, I suppose it is inevitable.  Someone will take the law into his or her own hands and shoot a mediator.  And the NRA will say it wasn’t the gun’s fault, it was the shooter.  Don’t take guns away from bad guys; get more good guys to carry them.  But has anyone heard of some good guy with a gun (other than a law enforcement officer) shooting a bad guy before the bad guy shoots someone else?  I haven’t.  Besides, owning a gun doesn’t necessarily give you the right or ability to determine who is a good guy and who is a bad guy.  

This blog is supposed to be about how we resolve our disputes, so I won’t get into the gun control debate any further.  But I do need to say that we should all step back and remember what it means to live in a civilized society.  Our social contract says we have given up the right to use lethal force to resolve disputes in exchange for a judicial system whose decisions are final.  Yes, we can still use force and guns in self defense, and for recreational purposes, like hunting.  But those are not legitimate means of dispute resolution.  The idea behind civil litigation is that a judge or court resolves the dispute, rightly or wrongly, the parties put it behind them, and then they get on with the rest of their lives.  The idea behind mediation is that the parties discuss the dispute with the help of an impartial mediator, and find a resolution they can both live with, even if a court could not order it, and then do just that — live with it! 

Americans frequently get criticized for being overly litigious.  Why is that a bad thing?  Eighty to ninety percent of all civil cases are settled short of trial.  Even when litigation is not settled, the parties usually get a full and fair hearing.  I like to think that if Hamlet had lived in the U.S., he would have filed a lawsuit and avoided his existential crisis.  But the shooter in the mediation case has proved me wrong.  Like Hamlet, he chose to face the slings and arrows of outrageous fortune and, by opposing, end them — along with his own life.