Entries Tagged as 'mediation'

Unattractive? Ugly? Maybe you should settle your lawsuit…

A recently published study by Cornell University indicated that “ugly” or unattractive people who are defendants in criminal trials are 22% more likely to be found guilty and are given longer sentences on average (22 months longer) than attractive people.  The scientists conducting the study tried to look at why this occurs.  Study co-author Justin Gunnell said:

Information processing can proceed through two pathways, a rational one and an experiential one. The former is characterized by an emphasis on analysis, fact and logical argument, whereas the latter is characterized by emotional and personal experience.  Our hypothesis was that if we identify the two groups, then the experiential people are more likely to focus on extralegal factors, which shouldn’t have any bearing on the legal process.  Attractiveness was the variable we used.

The study confirmed what it referred to as an “unattractive harshness effect.”  Jurors who processed information in more of an “experiential” manner were the ones who gave longer sentences and were more likely to convict.

Psychologists and sociologists have long known of the advantages which more attractive people have:  they are more likely to be hired and are generally paid more than less attractive people.  Hollywood is practically defined by attractiveness.

Most lawyers will say that the outcome of many trials hinges on how well the jurors or judge “like” the litigants, lawyers and witnesses who appear in front of them.  The trier of fact gives credibility or believes who they think is more attractive.

As I’ve indicated many times, settling a lawsuit or divorce matter is almost always in the best interests of all parties due to the unknowns of trial.  Part of the unknown results from human biases, some of which were detailed in this study.  We all like to think of a trial as “justice” but the reality sometimes is that it is a popularity or beauty contest.

If you would like to consider mediation to resolve your lawsuit or divorce, please feel free to contact me to discuss your situation further.

See a Real Mediation in Action

Most of my regular readers know I almost never have “war stories” of my mediations on this blog.  The primary reason why is confidentiality.  When my clients enter a mediation, they have an absolute expectation that what is said in the mediation room stays in the mediation room.  They do not expect their dirty laundry to be aired over the internet, even if carefully camouflaged by changing or omitting the names of the parties.  This level of confidentiality also makes it harder to market mediation.  How can I easily explain mediation by example?  There are plenty of law and court based television shows, but almost no mediation shows.

The Maryland Mediation and Conflict Resolution Office (MACRO) does an excellent job of marketing mediation.  To this end, they have produced an excellent video on different types of mediation.  The mediations feature actual disputants who have waived their confidentiality privilege and touch on different areas of mediation (commercial/business cases, divorce, family, community and peer [students in school]).  The common misconception about mediation is everything sitting around a campfire singing Kumbaya and wondering why we can’t all get along.  While most mediations are civil, the reality, as you can see in the video, is that mediations often involve difficult discussions, difficult decisions and facing the issues directly with your adversary.  The results of the process are usually a better relationship — even if it means ending it on better terms.

The video is in .wmv format and can be viewed by clicking here.

Please contact me to find out is mediation is right to resolve your divorce, family and elder issues or commercial 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.

Trial Lawyers Task Force Recommends ADR and Mediation

In a previous posting, I discussed the American College of Trial Lawyers task force interim report on trials in America.  The final report is out and here are the highlights as it pertains to mediation and getting your lawsuit settled:

  • “Courts are encouraged to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate.”
  • The task force recognized that this is a controversial conclusion, but one represented in reality.
  • “82 percent said that court ordered alternative dispute resolution was a positive development and 72 percent said that it led to settlements without trial.”
  • “52 percent said that alternative dispute resolution decreased the expense for their clients and 66 percent said that it shortened the time to disposition.”

In New Jersey, we have a presumptive mediation program in state court.  Most cases are referred to mediation and most settle before trial.  Parties will be even better served by mediating their dispute prior to the expense and hassle of filing suit.  If you are looking to save money in resolving your disputes, please feel free to contact me to discuss your case further and how mediation can help.

NJ Foreclosure Mediation Video

The NJ courts have started a You Tube Channel and their first video is about the court’s foreclosure mediation program.  The video is below and contains all the details about the program, of which I’ve written before.

Court Assigned Mediation and Interpreters

The NJ Administrative Office of the Courts court recently clarified the policy on whether the court must provide a spoken language interpreter for events which happen outside of the courthouse.  Court assigned mediation, outside of foreclosure mediation, is typically done at the mediator’s or an attorney’s office.  The clarification to directive 3-04 states that any mediator who requires an interpreter in any court assigned mediation should hold the mediation at the courthouse.  The court will then provide an interpreter at the court’s cost.  This directive does not apply to interpreters for the deaf as that gets into ADA issues.

Mediate your dispute with your neighbor and be on TV

Mediation is generally considered private and confidential (unlike litigation which is public), one of the main advantages as well as one reason why mediation is not more widely well known.  HGTV is creating a new TV show to mediate dispute between neighbors and they have issued a casting call:

Feuding with your neighbor with no resolution in sight?!? We all know how very uncomfortable that can be and HGTV would like to offer you a possible solution – MEDIATION!!!

I’m guessing this is the People’s Court but for mediation?  (Incidentally, the People’s Court, Judge Judy and the like get their cases from NYC Small Claims court cases who volunteer to have their case arbitrated by the program.  NYC small claims cases were always the most fun to mediate for me.)  So, if you want your 15 minutes of fame (literally) and want the dispute with your neighbor resolved, sign up.

In NJ and your home is under foreclosure? Use free Mediation to help.

In January 2009, the New Jersey state government and courts implemented a foreclosure mediation program to help both homeowners and banks resolve outstanding balances on home mortgages.  A homeowner can ask the court to be entered into the voluntary mediation program at any time during the foreclosure process.  At that point, the foreclosure case will be stayed pending the mediation.  The home owner will be required to meet with a HUD-approved counselor, essentially to determine what the homeowner can afford in regards to a potentially modified mortgage loan.  After that happens, the court will schedule a date for a mediation between the homeowner and the bank.  The mediations are held at the courthouse.  Both the counselor and mediator are compensated by a fund established by the state of NJ.

In essence, as I’ve explained before, the bank does not want your home.  In most cases, the balance of the loan is more than the value of the house and the bank does not want to own a home in a bad real estate market.  While holding the home, they have to pay property taxes, etc.  They would rather settle — if it makes economic sense — than foreclose.  Loans can be modified in a number of ways (change of the balance due/prinicpal amount, payment schedule, interest rate, type of loan, etc.), all of which the counselor can assist the homeowner with.  The counselor is also required to be at the mediator to help the homeowner during negotiations.  The state and federal government as well as the FDIC, Freddie Mac and Ginnie Mae all have programs to help homeowners.

Please keep in mind that this is not a panacea.  Some mortgage loans have been resold and repackaged making modifications difficult or impossible.  Some homeowners, even after the numbers are run, simply cannot afford the home they are living in.  In the latter case, the mortgage company may pay you to leave the home without an expensive legal battle to have you evicted.

The NJ courts have published a foreclosure resource guide (opens in new window) to help homeowners navigate a complex system.  As I’ve stated before, the worst action you can take is to ignore all of the notices you get in the mail — doing nothing will surely lead to the loss of your home.  Also, be cautious of people or companies who want to help by transferring title on your home for any purpose.  Those are likely scam artists.

Bad Economy a Boon for pre-lawsuit Mediation

Lawyers USA reports how the poor economy has encouraged potential litigants and aggrieved parties to seek out mediation before filing suit in court.  Some excerpts:

With the economy crimping corporate legal spending, Allen Smith, a partner with the law firm SettlePou in Dallas, has noticed that clients are more receptive to early mediations of commercial disputes.

“Business clients care about results and getting problems resolved,” he said.

In a recent case, for example, Smith told a corporate client he could pursue a lawsuit against a government agency. Or he could encourage the government to agree to mediation.  Smith drafted a petition to file suit – to show that his client was serious and had valid claims. But he also made it clear that he was “serious about wanting to talk.”

The government agreed to mediation, which has been scheduled for early this year.  “We’re all going to the table before a lawsuit has even been filed, hopefully to walk through what might be the issues,” Smith explained.

The cost savings of mediating the case could be dramatic – about $6,000, compared with up to $150,000 for a lawsuit.

The article further talks about how the “art” of negotiation to get a settlement among and between attorneys has been degrading recently, especially among younger attorneys.  This is largely due to the advent of court annexed mediation.

Please contact me if you want to learn more about saving time and money by mediating a dispute prior to filing a lawsuit.

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.