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Mediation Vignette; What We Say When We Talk About Lawsuits

Her lawyer was pacing back and forth across the conference room, almost fuming. “I can’t believe they waited until now to give us those notes from the board meeting”, he said. “Brandt was saying all along that they didn’t have them.”

Brandt was her brother Billy’s lawyer. The law suit had been filed right after Billy sold six of the trucks from the business they inherited and did so without asking her, or even telling her, about it. When she learned about the sale, she had gone to her lawyer and here she was in a mediation a year and half later.

“It’s too bad, sort of sad, really, that Billy felt so uncomfortable in there. He didn’t even hardly look at me”.

“He was too ashamed to look at you”, her lawyer said. “He knows what he did.”

The mediator was the third person in the room, waiting with them for the other side to finish a private caucus and make a response to a proposal. “Would he normally have responded differently?” asked the mediator.

The lawyer answered; “There is no normal with these guys. I am no longer surprised by anything I see.”

The client looked at her lawyer and then back at the mediator; “He never acted liked that before. He would have hugged me or said something at least. I think his lawyer must have told him not to say anything to me. But he wouldn’t even look at me either. That’s not Billy.”

“That’s the same Billy I saw for six hours in the deposition”, said the lawyer. “I could tell he was lying when his lips were moving”.

“That would be a shame”, she said, “That might be the worst of it.”

“That wasn’t the worst”, said her lawyer, “But it was pretty bad and that….”

“That’s not what I meant” she said.

The three of them sat there for a moment, staring out the conference room window at Monument Circle and its splashing fountain. The mediator asked about their parents and how the business was started and, as she was talking, the mediator guessed that there may have been quite a few times in the past year and a half when she had said to herself, or aloud, that that was not what she meant. So the mediator asked her what she meant. She said; “It would be sad, really sad, if all this made him lie about stuff, because that’s not Billy. At least it’s not the old Billy”.

The lawyer grabbed a handful of M&M’s and looked at the mediator. “Did you see the look on Brandt’s face when I put those cell phone records in front of him? I thought he would swallow his pen. I probably should have saved that for the jury. Those good folks in Jennings County would just love to hear an explanation of those calls.”

She said, “I thought you said Billy didn’t know about the calls.”

“Doesn’t matter”, said the lawyer, “Brandt was his lawyer and his agent and it’s as though Bill made the calls himself.”

“Well”, she said, “It’s not the same to…” and she stopped and just looked out the window.

“Not the same to Billy?”, said the mediator.

“Right”, she said and neither to the jurors in their home county she probably thought.

The mediator told them he was going to go down and check in the other room to see if the other side was ready for him yet.

“It’s probably taking them this long to get their stories straightened out”, said the lawyer.

But his client didn’t seem to be listening and as the mediator was leaving, she asked; “Is the room Billy is in facing the Circle also?”

“Yes, why?”, asked the mediator.

“Oh, nothing really”, she said, “Dad used to take us skating there when we were kids and I was hoping Billy could see it.”

Names, details and sequences have been modified in the vignettes to preserve confidentiality.


John R. Van Winkle

John R Van Winkle is a full-time mediator from Indianapolis Indiana. He is a former Chair of the American Bar Association’s Section of Dispute Resolution and the author of “Mediation; A Path Back for the Lost Lawyer” MORE >

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