My Falling Out With Mediation

 

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Friends:  I have to confess, I back slid recently and agreed to mediation of a client’s case.  I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation  generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case).  I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself  not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.

  1.  Defense counsel get away with childish, immature positions and remarks.  I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured.  After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years.  Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication.  Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
  2. Defense counsel approach me to mediate, saying “they really want to get the case resolved.”  So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it.  That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.
  3. Defense counsel use the mediation as a conduit for making threats, through the guise of a neutral mediator. Typical threat is they are going to make their lowball offer pursuant to the statutory offer of judgment, so that if for some reason our crystal ball about what the jury will do at trial is wrong and we don’t get more than 75% of that offer, my client will be subject to paying their attorneys’ fees.  Then, ethically, I have to explain to my client, who typically has nothing or very little, that he might have to pay the other side’s attorneys fees, EVEN IF WE WIN.  Well, you can imagine what that does to a client’s state of mind. There is no way the average reasonable client in a personal injury case (who by the way is in the hole financially because he hasn’t been able to work for the last year or two due to his injury due to the defendant’s negligence) would agree to be subjected to that possibility. Case over.
  4. There is no negotiation at mediation. Back in the days when mediation first became used as a legitimate alternative dispute resolution vehicle, real negotiations took place between the parties, with the mediator actually giving input, bringing to bear his experience in handling personal injury cases, being firm and unapologetic with whichever side was being unreasonable.  Cases settled back then. Now, in mediation, there is no negotiation. The insurance adjuster arrives with whatever authority they think the case is worth only from their own myopic point of view and they put it on the table and it always comes down to a take it or leave it situation where the final offer has not been reached through educated mediation and good faith negotiation, but through bullying and threats.  The mediator now has become reduced to a human text message, simply regurgitating what was said in the opposing party’s room. I can accomplish that without paying a mediator.   I have tried to figure out why mediation has become like this. I have considered one possibility being the glut on the market of mediators. Currently, there are literally hundreds of mediators in Atlanta and across Georgia. Most are former trial lawyers who have retired but still want something to do.  And so the market has been saturated with them, raising the question:  Has competition among mediators become so strong that they feel like they have to get along with and be liked by everyone to be able to get their business, so that the day when the good mediator could tell a party it was being unreasonable in negotiations is gone?  They can’t risk upsetting a particular lawyer so much that he, or her firm or all of her lawyer friends, will be warned off from ever using that mediator again.
  5. For mediation to work, both sides have to be willing to share information that they intend to use at trial.  But, when I have done this, what happens next is the mediation is over and you see the very information you shared at mediation used against you in a Motion for Summary Judgment. So then you have to take time away from resolution of the case to fight the summary judgment motion, and face possible interlocutory appeal.  After winning at every step, you finally get back to trial court for a trial, but it is a year or so delayed.
  6. Defense lawyers always file frivolous motions prior to mediation. Even when they know every issue is a fact issue that will be decided by a jury, even when they have 0% chance of winning a motion for summary judgment,  they file a motion for summary judgment. Then they try to use that as leverage in the mediation, and even if they admit they may lose the motion at the trial court level, they make the next threat that they fully intend to appeal the issue, which will cost your client another 16-18 months delay in getting to a jury.  No client wants to have that happen.
  7. Discussions with the mediator are confidential, even when defense counsel admits to the mediator to illegally withholding evidence.  The mediator hides behind the confidentiality of the process, knowing that resolution of the case with the defense withholding illegal information is really not fair, just or reasonable. Now the mediator has become a co-conspirator in promoting unfair or even illegal tactics in a case.  Mediators should have a duty to disclose to the other side when they believe evidence has been illegally withheld in a case or when they believe counsel has engaged in unethical behavior.  Confidentiality should not trump ethics and legality.   And how would it be helping our civil justice system when the mediator facilitates a resolution of a case, but it is based on illegality or fraud?

I’ll stop there…not because I can’t think of any more reasons why I no longer wish to mediate cases, but just because writing this makes my blood boil.  I am thinking of the juxtaposition of your 7th Amendment right to trial by jury and mediation, and it reminds me of the proposed Constitutional Amendment No. 1 on the Georgia ballot this year, regarding school takeover by the State.  Once the citizens give up the right to have our schools run and controlled locally by a locally elected school board, and then the State takes over, I would be willing to bet you’ll never get that local control back. Once it’s gone, it’s gone forever. Right now I feel the same threat for loss of the right to trial by jury.  Once we relinquish so many of our cases to mediation and away from jury trials, we may never get those jury trials back. So be careful. I, for one, am not willing to trade in my clients’s rights to a trial by jury. To my knowledge, trial by jury is the best way, using the smallest and smartest form of government, 12 citizens, to decide a dispute.  Don’t be so quick to throw that away.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 28 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.