Entries Tagged as 'Elder Mediation and Elder Law and Issues'

Are Judges and Juries like Referees and Umpires? Are Referees and Umpires Fair? Why lawsuits are crapshoots.

Analogies between a finder of fact (a judge or jury) and referees or umpires (the arbiter of a game’s rules) are often made.  It is open to debate whether the analogy firmly holds.  However, it is often interesting to discuss whether any “neutral” decider of an outcome (game rules or rules of law) have biases.

When a party enters the courthouse or arbitration room, each party expects (and hopes) that the person(s) making the decision as to who is “right” is being impartial and fair. It is certainly open to debate how to define fair, which is usually in the eye of the beholder.  Each time I went through arbitration training (to be a private judge), the class is asked to perform an exercise.  The class is broken up into groups of three people.  One person plays the arbitrator, one person the complainant and the other the respondent.  Each group is given the same exact fact pattern and the parties make their cases.  After a specified period of time, the arbitrator makes their ruling which is turned into the person running the training.  Every single time I’ve done the exercise, the distribution of rulings in the room fall out from one  end of the possible spectrum to the other with everything in between.

Why?  Everyone had the same exact case to argue.  Shouldn’t “justice” be consistent?  In reality, several things happen.  First, not every party presents the case the same exact way.  Some people are more effective than others, just as some lawyers are better skilled than others. In a real case, anyone who speaks (lawyers, witnesses) can have good and bad days.  Trials are performances.  Second, every single human being has biases.  We grow up with things we like or don’t like.  We have all had good and bad experiences with things, people and scenarios.  These create the filters through which we see the world.  There is also a theory many attorneys ascribe to which states that whomever the jury or arbitrators likes better in terms of attorneys and litigants will win the case. Likability trumps “rightness”.

Getting back to the sports (referee) analogy, there have been some recent studies showing bias in referees.  And I am not referring to the Tim Donaghys of the world who seek personal gain from their on-the-court rulings.  In the Netherlands, two professors discovered that soccer (the other football) referees are more likely to call ambiguous fouls on taller players.  A study out of England showed that referees favored home teams in their calls, especially in disciplinary sanctions (yellow and red cards).  From the world of Tae Kwon Do, referees tend to award more points to competitors wearing red uniforms.

In the U.S., college basketball referees tend to also favor the home team by calling fewer fouls.  The college refs also try to level the playing field for the teams by issuing “make up” calls, calling more fouls on the team in the lead, and trying to even up the number of fouls between the teams regardless of the aggressiveness of the level of play of each team.  A 2007 study also found that white NBA referees tend to call more fouls on black players than white players.

Even just looking at the games you watch, do you agree with each decision the referee or umpire makes regarding your team?  How about instant replay, the analogy of an appeal in court?  Does the referee get it right even when they have a TV with 20 angles and slow motion to look at each play?  Sometimes not.

So what does all of this tell you?  Try to resolve the case without having someone else decide it for you.  That’s what mediation helps the parties accomplish.  The outcome is on your terms and is unaffected by the biases of others.

Please contact me if you would like to further discuss how mediation can help facilitate a resolution to your lawsuit, divorce or family dispute.

Would you take less than 30%? Most Would Not.

Part of being an effective mediator is having a good understanding about how people make decisions.  After all, a mediator is assisting people in making decisions.  We all like to think we are making rational decisions.  However, that is not always the case (despite our best efforts to the contrary).

Professor Daniel Ariely (Duke University and MIT) conducts extensive research on human behavior and has written a fabulous book on this topic, Predictably Irrational.  He looks at how free! really isn’t free and how morality disappears when we’re emotionally (or sexually) aroused.

In game theory, there is a game called the Ultimatum Game.  One person is given an allotment of money, say $1000, and is told to offer a certain portion of it to another person.  If the other person accepts, they both get that amount of money.  If the second person declines, neither party gets the money.  Rationally, the second person should accept anything offered to them as any dollar they receive is more than they had previously. Studies done by Professor Ariely and his collegues have shown that most people will not accept less than 30% of the total pot.

There are a number of theories as to why the second player would act seemingly irrationally.  One is that the second player is making a “fairness” judgment:  it’s not fair that the first player is getting more than 70% of the money thus they should get nothing (while the first player gets nothing either).  Another is that the second player is setting themselves up for a better payout just in case there is a second round of the game (while there is no guarantee that there will be).

To test this further, the experimenters went to a bar where they were likely to find drunken (and hence “more rational” people who focus more on short term goals, versus the longer term goal of a better second round).  They found that most drunks would turn down deals for less than 50% of the money.

There is an interesting parallel to negotiations (and mediation discussions).  Parties to a negotiation often will get lost in the emotions of the conflict and instead of seeing their own best interests are taken care of, they become more interested in “hurting” the other party even though it hurts them as well.  If fighting over a fixed pot of money, anchoring (the first offer made by each side) becomes that much more important.

NJ Court Public Information Rules Amended

I have previously written about the proposed rules changes by the NJ Supreme court regarding public access to court records here and here. In a nutshell, we have an open and public court system.  Most (but not all) records of the court are public but are currently accessible only at the courthouse.  Justice Albin was charged with reforming these rules to reflect 21st century issues such as internet access and privacy.  As part of the overall rules changes approved by the Supreme Court, most of the recommendations of Albin’s committee were approved and will become effective September 1, 2009 along with other approved changes.  The formal rule is 1:38.  The modifications are as follows:

  • Closed or inactive account numbers and information are not considered to be private and thus do not need redaction.
  • The court may charge a fee to mass redact social security numbers in already existing records.
  • The obligation to redact confidential personal identifiers from documents submitted to the court applies to litigants and attorneys in all cases — and must certify same.
  • Financial records of guardians and incapacitated persons shall be confidential and available only to spouses, domestic and civil union partners, and family members of the ward to the third degree of consanguinity. The court thought that making them public would enable exploiting of the most vulnerable in our society.

It is unclear how quickly internet access for court records will occur given the fiscal realities of the state of NJ in 2009 — but the road has been laid out.

What does this mean to you?  Your records in the future (including potentially retro-actively) will be far more accessible to anyone who cares to see it.  Mediation is a confidential process, whether for a divorce. commercial dispute or family dispute.  If you want to keep your information from public view, mediate your divorce or dispute.  If you would like to discuss this further, feel free to contact me at 732-963-2299 or via my website.

What is Mediation?

Here is a cute video produced by the Department of Veteran’s Affairs which explains mediation using fables.  This example mediation is closer to how a commercial and elder mediation would work moreso than a divorce mediation (where the issues are more defined, the discussion more focussed and caucuses rarely occur).  The video opens in a new window.

Hat tip: Diane Levin

NPR Story on Elder Mediation

The longer lifespans of Americans combined with family issues have created (or in some cases exacerbated) existing family disputes and conflict.  Issues and conflicts which have become more common include:

  • If/when to “take away” a parent’s driver’s license/car keys
  • Inheritance issues with the re-marriage of a parent later in life
  • Which sibling takes care of a parent who can no longer live on their own
  • When and how to make the decision to place a parent in some type of assisted living arrangement
  • When to end a life when the elder’s wishes are not clear (similar to Terri Schiavo’s case)

These disputes have the common threads of loss of freedom for the elder person balanced against the caring for the safety of the elder person by their children.  There is also a theme of sibling rivalry and the playing (or replaying) out of disputes that often began in childhood, but now in an adult context with the parent as trigger.

A mediator as an impartial third party can often help the family sort out these very emotional issues.  I am trained as an elder mediator and will shortly be launching another website dedicated to this area of my mediation practice.

National Public Radio recently featured a story on elder mediation.  If you are having family conflict over later in life issues, please contact me to see how I can help.

You don’t have to be an attorney to be a mediator?

This is one of the most common questions I get.  The answer is no.  Why?  There are a number of reasons.

  1. Mediating a dispute is not about the law.  Trials and motions are about the law.  Mediating is about identifying the issues in dispute, fact finding and dissemination, generating potential solutions, quantifying risks and outcomes, identifying the interests of the parties (as opposed to their positions and posturing) and then finding the solution(s) that the parties can agree to.  A mediator needs to understand some psychology (“human nature” and emotions), how people make decisions, be comfortable with numbers (if the case deals with money), etc.
  2. Mediation and advocacy are two different and distinct skills.  The training for both is different and the ethics considerations are different as well.
  3. The mediator can not give legal advice to the mediation participants.  An attorney would be violating the rules of professional conduct by either not being neutral or representing adverse parties in the same matter.  A non-attorney would be violating the unauthorized practice of law.
  4. The mediator is not making any decisions. Only the parties are making the decisions.
  5. In civil cases, each side generally has an attorney at the mediation.  They will often have different legal opinions.  A third opinion from an attorney mediator does not make one side “right” or “wrong”.  In fact, it can often embarrass the “wrong” attorney in front of his client.
  6. A non-attorney can be trained in the subject matter area required (divorce law for instance) in order to educate the parties.  Remember, giving legal advice is forbidden.  In civil cases, the participating attorneys are usually more than happy to educate the mediator.
  7. In civil matters, a jury of your peers is made up of non-attorneys (it’s pretty rare that an attorney makes it onto the jury).  Who better to give some level of feedback as to how the jury might perceive someone’s case?

The Florida Supreme court has recently indicated that being a lawyer or a retired Judge does not give a mediator any advantage or greater success in the role of mediator.  There are many attorneys who are good mediators just as there are many non-lawyer mediators who are good (as well as bad mediators from both categories).  A mediator is good and effective because they have the mediation skills and experience, not because of what their “other” job is.

Utilizing Mediation Clauses in Estate Planning

Professors Lela Love and Stewart Sterk of Cardozo Law School have written a paper which addresses the use of mediation clauses in estate planning.  The highlights are as follows:

  • In recent years, a number of states have developed mediation programs for resolution of probate disputes.  Measured by surveys of participant satisfaction, these programs have been successful. To  date, however, use of mediation in probate disputes has largely been reactive; once a dispute arises,  courts offer mediation as an alternative, or, in some states, require the parties to try mediation. Mediation clauses in a will may not be advisable in all cases (a decedent who wants to maintain firm control; a bully or wimp among the beneficiaries)
  • In the context of disputes connected to wills, where family members are disputing in the shadow of a
    traumatic event—the death of a loved one—and where the long-term relationships of family members are being reconfigured in light of the death, the relationship benefit of mediation may be particularly important.
  • In the Probate Mediation Program in the District of Columbia Superior Court statistics for the month of October, 2006, indicate that parties are “satisfied” or “very satisfied” with the process in 80% of the cases, with the outcome of mediation in 73% of cases, and with the neutral’s performance in 86% of the cases.  In a New Hampshire survey of parties and attorneys involved in probate mediation, 94% of respondents agreed or strongly agreed that the mediator was able to facilitate discussion successfully; 86% agreed that the mediator helped explore different options to resolve the dispute; 80% agreed that mediation saved time and/or money; and 97% reported overall satisfaction with the mediation process.
  • In the Fulton County Probate Court in Atlanta, Georgia, one of the pioneering courts in mediating
    probate disputes, the settlement rate is approximately 65%.
  • Why mediate a probate case?  (Enforce testator’s wishes; maximize value of assets passed on to beneficiaries; preservation of family privacy; preservation of family harmony)

There are many reasons why wills are contested from validity to undue influence to capacity to enter into a will to unclear wishes of the testator.  Family disputes ruin relationships.  The decedent may not be aware of family rifts at the time the will is drafted.  These family rifts may have their causes in the childhood eras of the beneficiaries.  Mediation can help heal these family rifts.  And it can be helpful during any phase of the estate planning process — pre-drafting, pre-death, post-death as well as during the probate process.

If you would like to discuss how mediation can help you and your family, please feel free to contact me.

Can you sue for a raise?

Two interesting cases have come up in NJ neighbors dealing with raises for judges.  In New York, judges have not been granted a raise in salary by the legislature and governor in 10 years.  Their salaries were tied to the fate of those of the legislators and governor who have not been given a raise in that same period.  The primary argument being used is that this violates the doctrine of separation of powers, where raises are tied to the other branches and consequently other political activities such as campaign finance reform.

But this whole concept of suing for a raise raises an interesting question (pun intended).  Who is making this decision and ruling?  The judges potentially impacted.  Doesn’t this present a huge conflict of interest which should disqualify every state level judge in the NY?  Is there no confirmation bias going on here?  Have judges been quitting because of the low pay (or not running for re-election)?  (The answer it seems is no.)  Has the judiciary’s independence been infringed by lack of legislative and executive action?  Apparently not given a state court judge ruled in the judiciary’s favor.  The case has been appealed (and the ruling stayed) and will be heard on November 17.  Stay tuned.

Meanwhile, across the Delaware in Pennsylvania, the exact opposite has happened.  The legislature passed a pay raise bill for itself, executive branch officials and judges back in 2005 only to repeal it 4 months later in response to public backlash.  In September 2006, the state’s Supreme Court ruled that the legislature could not legally cut a judge’s salary and invalidated the repeal for the judiciary.

However, one state superior court judge, Joan Orie Melvin, did not want to accept the raise.  She was forced to sue when the state would not adjust her paycheck to reflect the old amount.   Commonwealth Court judges said she could not, claiming it would be illegal for her to take less than the full salary because it could establish a ”two-tiered system of judicial compensation.”  Without holding any hearings, the Supreme Court justices – in a one-sentence order – have backed the lower court’s decision.  The judge can donate the extra salary or return it to the state, but she must accept it – and pay taxes on it, the court said.

Hmmmm.

Who Owns the Law?

Should a government who drafts, passes and enforces laws hold copyright to those laws?  Carl Malamud, a Sebastapol, CA resident says no.  The Press Democrat reports he is leading a fight to make sure that all types of government statutes, codes and other laws are available to anyone who wants them.   He is posting a copy of all of CA’s code on a website.  But the state of California claims copyright to those laws; it currently dictates how you can access and distribute them and how much it will cost you for print or digital copies.

California generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.  I am not sure how New Jersey considers the copyright on the laws, but the legislature’s website has a horrible look-up facility which generates small sections of code one page at a time.  No copyright is asserted on the bottom of each page.

I am sure this will end up in court at some point.  it will be interesting to see how it turns out.

In Whose Best Interests???

You hire a lawyer to represent your interests in various legal matters….divorces, lawsuits, contract negotiations, etc.  They are supposed to be working for you, right?

Check out this Wall Street Journal blog entry about the financial troubles of west coast law firm Heller Ehrman LLP.  The salient part is here:

So what has happened to Heller, which has long ranked as one of the top firms in San Francisco and one of the top litigation shops in the country? For starters, the firm had many huge litigation matters settle in rapid succession last year, including its representation of Ernst & Young in securities fraud suits against AOL and Cendant. About one-fourth of its litigation business settled last year–a huge blow given that litigation makes up about 60% of the firm’s revenue, according to a Heller attorney. And that revenue has been hard to make up in a soft litigation market.

So is it in the firm’s best interests not to settle cases for clients?  Would settling cases bring in more business as (new and current) clients realize the firm is working to resolve their problems AND save them money?

Most clients seem to forget that their attorney works for them, not the other way around.

Further, the trial is a dying breed. The percentage of cases filed that actually go to trial has been steadily dropping.  Perhaps law firms need to have a different business model to reflect the changing times.  Lawyers need to focus more on being “problem solvers” rather than litigators.

Mediation resolves problems.  That is its main purpose.  If you are looking to resolve a problem that you have (a divorce, family squabble, commercial dispute), feel free to contact me.

(With a hat tip to colleague Geoff Sharp.)