The Master Mediator: Rags & Me (Web)


It is axiomatic that mediators must work with the parties to ascertain that all potential issues have been raised that must be considered and resolved in the dispute or case.  These should be addressed in a clear and unambiguous manner in any resolution.  

A recent California case Shloss v. Estate of James Joyce, involved a fee petition filed following a “successful” mediation.  Prof. Carol Shloss of Stanford University filed a Copyright Act declaratory judgment action in the U.S. District Court for Northern California seeking protection of under the “fair use” doctrine for quoted material in her own publications.  The matter proceeded to mediation with a settlement that permitted the professor to publish, in print or online, without suit for copyright infringement.  

In the stipulation of dismissal filing which contained the full settlement agreement as an attachment–see http://cyberlaw.stanford.edu/node/5299#attachments for a copy of the agreement and a press release--the District Court was asked to retain jurisdiction of this matter for enforcement purposes.  

Following dismissal of the court case pursuant to the mediation settlement agreement, Prof. Shloss sought, and obtained, her own attorney's fees under the statutory prevailing party fee-shifting provision.  Over objection from the Joyce Estate, the court accepted the contention that the professor obtained more than the relief sought in the action since she received permission to publish online and in print, and that the attorney fee issue was not addressed, nor resolved by the settlement document, since it lacked a provision that each party was responsible for its own attorneys fees.

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My own experience as a young lawyer representing my childhood friend in his divorce is my “mediator teaching story” that guides my approach to closing the deal.   Harry and Louise, college sweethearts, had a short and tumultuous marriage.  I had barely opened my practice after only two years as an attorney, when Harry dropped into my office asking me to represent him in his divorce.  This was much needed business for me as a storefront lawyer operating in a tiny office across the street from my elementary school.  

After a series of contentious meetings between the separated parties and counsel, they reached an agreement on the only issue in the case, the equitable division of property.  As a practical matter, this had already happened many months earlier as most of the tangible possessions acquired during their brief marriage either left with Harry or stayed with Louise following the separation.  

We arranged a final meeting at my office to sign all documents.  It was the cusp of spring, the kind of vain-glorious day where nothing could go wrong.  Counsel and the parties sat crowded in my storefront to sign the settlement agreement.  After Louise had already signed multiple originals, Harry casually mentioned that he would like to stop by the former marital residence to retrieve a large cardboard box in the garage that stored “rags” that were used to wash and dry his car.

Reader, you know what happened next, don’t you?  

 She said “NO!”  It is property in her possession, and not specifically mentioned in the settlement document, so the rags--and presumably the cardboard box--belong solely to her.  Harry exploded with rage, screamed those were “his rags” and hurled multiple invectives as he stormed out the door.  

Fortunately, counsel for Louise was quick enough to snatch the partially executed document from Louise’s outstretched hands before she could do it harm.  We had no choice but to adjourn since this happened a long time ago in a land barren of cell phones.  

After several more days of communications between Harry, me, and Louise’s counsel, the Battle of the Rags concluded.  The word victor is linguistically close to victim for those instances where the blur at the end defines the moment and confuses victor with vanquished.  

So:  I am unable to recall the specifics of the disposition of either the rags or the cardboard box.  

I use this story, including the failure-to-recall  resolution, in my mediation sessions where I am faced with a participant I believe is holding back, is otherwise unaware of an issue, or is dismissive of a deal point, no matter how seemingly trivial the item.  

After I tell the story, I ask each participant to consider not only the “rags” but the “containers” of the conflict to assure a durable resolution.  Of course, if I think of a specific issue that might arise, I believe it is my obligation to put it on the table prior to conclusion of the process.  This may include my reviewing terms and conditions orally and then subsequently reviewing and commenting on the settlement documents drafted by counsel.  I believe it is not only appropriate, but a duty of the mediator, to point out problematic language and to provide drafting suggestions to the parties for consideration.  Mediators are not much “value-added” to the parties if the outline of a mediation agreement is not able to be memorialized and ultimately implemented.

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One technique I often use at the mediation session is a “term sheet.”  This writing expressly indicates that it is intended to be an enforceable settlement.  It is drafted and executed by the parties while we are all still present at the mediation session.  

I neither sign nor witness the document, but I offer to be named in it as a resource to engage in a med-arb process should there be unclear or missing terms in the drafting of a comprehensive, formal document.  Most parties welcome my continued involvement and rarely do they return to me for assistance.  I recommend that the parties consider submission of open matters to the court or to a special master to fill in any gaps or uncertainties.  

Effective mediators use stories to educate the participants and to eliminate any “sand-bagging” or other strategic engineering by a one party to obtain an advantage in the implementation of the outcome.

I suspect that every mediator, counsel or risk manager has their own personal fable illustrating the important of memorializing a full and final settlement.  If not, feel free to cite this one as: “The journey from rags to resolution.”

by Robert A. Creo

The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He also is a member of Alternatives’ editorial board. His new book, a two-volume, loose-leaf ADR reference, titled “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner,” is available via publisher George T. Bisel Co. at www.bisel.com. He can be reached at robertacreo@cs.com