Blog by Phyllis G. Pollack
There is an adage that a person who is her own lawyer, has a fool for a client, meaning that representing yourself is a foolish. Why? You lose perspective, objectivity and perhaps even credibility.
Based on a recent event, it seems that this adage applies to mediators as well: one who mediates her own dispute, has a fool for a mediator.
It all started with my husband, a lawyer who practices international and trade law in the Court of International Trade. He is not familiar with California litigation or practice in the state courts.
One day he was speaking with a client- a Customs broker- who mentioned off handedly, that she had been served with a second subpoena for documents by a Plaintiff’s attorney. It seems that previously, this attorney had served a subpoena for 700 files which required hundreds of hours in search and retrieval time. The Customs broker tried to charge the attorney, but he refused to pay. She did not realize that under California law, she could withhold the documents until she was paid.
When she mentioned to my husband that she had been served with a second subpoena, he advised that she could charge for searching, retrieving and copying the records. As I litigated in the California courts for more than 25 years, he consulted me on the specific statute authorizing payment.
My husband then started an e-mail exchange with Plaintiff’s counsel who first offered to pay a very minimal sum of money, and then refused to pay at all. Using my ghost-written e-mails, my husband advised that the exchange must be simultaneous and must be by cashier’s check or cash. A business check was not acceptable as the attorney could stop payment on it. (We realize that one can stop payment on a cashier’s check, but it is difficult to do so.).
In response, the Plaintiff’s attorney refused; he would go to the bank to obtain the cashier’s check only if someone paid for his time to do so. He was not aware of any statute mandating that payment be made by cash or cashier’s check.
The e-mail exchanges started getting heated: Plaintiff’s attorney threatened to file a motion to compel on an ex-parte basis.
At this point, the mediator in me kicked in, and I suggested to my spouse, that perhaps he should pick up the phone and speak with plaintiff’s counsel and work something out. He refused. I suggested this more than once – to no avail.
Suddenly, I found myself drafting an opposition to a potential ex-parte motion to compel on the off chance that the Plaintiff’s attorney would carry out his threat and seek ex-parte relief.
Sure enough, he gave ex-parte notice, and I started revising the opposition, preparing the declarations (including those of the Customs broker) and obtaining the e-mail exchanges from my husband as an exhibit. I again, suggested he pick up the telephone and resolve this, but he was adamant. I felt like I was in the middle of a dispute fueled by testosterone; neither side would back down for fear of being viewed as “weak.”
Evidently, under the state court rules, the ex-parte must be filed electronically by 10:00 a.m. the morning before the hearing on the ex-parte. So, once that deadline passed, I asked my assistant to call Plaintiff’s counsel to see if the ex-parte had been filed. It had not, and the attorney stated it would be done later that day. A few hours later, my assistant called again only to learn that the ex-parte would be put off until later in the week.
Meanwhile, I had been spending time finalizing the opposition, declarations and exhibits then readying them for filing.
Late in the afternoon, another attorney called my husband and explained that he would be the one actually trying the case when it is called for trial within the next month. When the subject of the ex-parte came up, the trial attorney assured my husband, that one would not be filed; cooler heads had prevailed.
So… while I brushed up on my litigation skills, it was for naught. It also reminded me of why I became a full time neutral and quit the practice of litigation. Spending a lot of time over nonsense is not my idea of fun and games.
When I am mediating a matter and suggest that one party talk to the other, more times than not, they are amenable to my suggestions. When I tried it with my husband, it did not work. Maybe, because of our spousal relationship- ( who ever listens to their wife?)- or that I was too close to the situation. Who knows?
I do know that I am not going to try to mediate a dispute in which I am involved. Rather, I will ask one of my colleagues to help me out.
…Just something to think about.
[Drawn in part from Conflict Revolution: Designing Preventative Systems for Chronic Social, Economic and Political Conflicts, 2nd Edition, goodmedia press, 2015.]"Shall I not inform you of a better act than...By Kenneth Cloke