Fear of The Unknown Part II

This is the second part of a two-part series on mediation on how the education of the parties as to the law and the process empowers clients and increases the probability of tailor-made creative settlements and satisfied clients.

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A SCAPEL VS MEAT CLEAVER

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As lawyers, Judges, and mediators we are trained to litigate and navigate the legal system.? We need to never lose sight of the fact that the people that are now thrust into our legal world are “real” people who have not been “warped “ by law school.? As a lawyer or a judge, the matter before you is part of the client’s life and frequently is / has been dominating their life.? Clients reasonably think that their “day in court” is simply that … a day.? What they don’t understand is that a trial day may start at 9am and go to 10:30am when the Court takes a break.? Back on at 11 am until the lunch break at noon.? Back on at 1:30 to 3:30 or 4;30 when the court breaks for the day.?Their trial may start and go for two or three days only to then be continued for a month or two. ?Clients, go to trial wanting to be heard, they want the time to sit down tell their story and be heard.? What clients frequently do not understand is that they will not be able to simply sit down and have a conversation with the Judge, providing him or her with a long-detailed narrative.? What they will quickly find out is something called the California Rules of Evidence controls what the Judge or Jury hears.

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This is why I think that mediation is such a powerful and valuable tool.? In mediation, I block off the time for the case to start and finish. I take the time to listen to the parties.? I want to hear what they have to say.? The attorneys are a valuable part of mediation, but it is the clients who are the essential players.? As case law so clearly states, it is the client and not the attorney who has the authority to settle the case.? The rules of evidence do not control in mediation.? Guidance by the attorneys as the clients tell their story and explain their concerns leading to creative solutions is what makes a settlement happen.? The parties are real people with reasonable needs, wishes, and desires.? They want and expect a judge to use the finest scalpel to carve out and separate the facts, the law, and the disputes.?

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I have had the privilege of working with so many of the?Judges on the San Francisco Superior Court for more that forty years now and I cannot begin to tell you how dedicated, hardworking, smart, and caring they are. But with their caseloads, with the status of the court budgets, and the gatekeeper of the California Rules of Evidence, when matters go to trial and a decisions is made by the Judge on a regular basis the parties that have not been educated and prepared by their attorneys ?feel like a meat cleaver was used vs a scalpel.

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THERE ARE NO GUARANTEES

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I frequently start off my mediations by advising the parties that there are no guarantees if you go to trial.? You never know what will happen at trial.? Routinely, I tell this to the parties in my mediations in front of their attorneys, and then ask the attorneys if they agree.? In over two decades of doing MSCs I have only had two attorneys say that they were guaranteeing the results at trial.? I then immediately turned to their clients and told the clients to get that in writing.? Mediation delivers far more satisfying and enforceable results.? When you go to trial you turn over control of the result to the trial judge or the jury.? You never know what they will do.?

On the other hand, a skilled mediator brings the parties together to be heard, to listen to each other, to talk through issues, strengths, weakness, and to explore creative solutions.? The parties have lived the case.? My job is to hand them the scalpel and allow them to separate the fact, the disputes, to explore compromises, and to carve out a tailored made solution.? I have also found, that when the parties are the ones who create the settlement agreement the settlement is frequently a far more viable and enforceable solution.? Frequently, when a matter goes to trial and one party “loses”, that disgruntled party is going to look for loopholes and ways to thwart the decision.? However, when the parties create the settlement agreement, they take ownership and are far more likely to honor and abide by what they created.? To further encourage enforcement, I have a standard clause that provides if one of the parties needs to seek the assistance of the court to enforce the settlement agreement, the prevailing party will be entitled to their attorney’s fees for having to enforce the agreement.

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I am not always successful at getting the parties to agree on the day of the mediation.? On those few occasions where the mediation breaks down,? the pending trial date is the remaining option.? With some frequency, I will get a call from the Presiding Judge on the morning of the first day of trial asking me if I am available that morning to talk with the parties. ??The “courthouse steps” add to the parties’ motivation to find creative settlement solutions.? ?But from time to time, a party just needs to have a judge make the decision.? On occasion, ?I have been known to tell the parties about how they will now get to see a person in a black robe, ?who is smarter, and better looking than I am… and hopefully, ?she or he will have picked up a scalpel versus a meat cleaver. ?

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Contact Our Experienced Mediator Today at the Mediation Offices of Martin F. Triano

Mediation can be a valuable tool for resolving legal disputes outside of the courtroom. While mediators are generally not allowed to give legal advice, they can provide important information to help the parties reach a mutually satisfactory agreement. If you are facing a legal dispute and considering mediation, the?Mediation Offices of Martin F. Triano?can help. Our experienced mediators understand the complexities of legal disputes and can guide you through the process, working closely with attorneys to ensure that all legal issues are properly addressed. We are committed to helping people find a resolution that works for everyone involved, and we always prioritize their needs and interests.?

Litigation is factually intensive and turns on the applicable law. This newsletter is meant to provide a general education of navigating the mediation process and is not meant to replace the individual tailored legal advice one needs from your attorney when you find yourself immersed in a lawsuit.

Don’t let a legal dispute consume your time, energy, and resources. Contact the Mediation Offices of Martin F. Triano today at (510) 548-8081 or by email at trianomediaton@gmail.com.