Winter Wonders and Legal Matters

Snow has been falling here in East Tennessee for the past week.  It's continuing now.  The weather started with freezing rain and an ice storm, then cleared out mildly enough for people to get to the grocery store.  Now it's snowing again.

Knox County schools have been closed for a week.  Most counties in Northeast Tennessee have seen similar situations with their school systems.  I'm pretty sure every parent with a child of school age right now is beginning to find this "weather event" really old and wants their kids back in school after having a real "winter break."

One thing that bothers me repeatedly about these weather situations is the way the local courts handle closures or delays.  I've heard several speak of what happens in civilian jobs when you can't get to work--sometimes you can get written up for disciplinary action or worse.  In the legal world, if court's open, attorneys are expected to be there.  Many times closings occur on a case by case basis, and weather patterns like this can see lawyers up calling and texting every single clerk and government official to find out whether we actually have to be in court.  If there's no word or we have no communication with the clerk's office, we pull out the snow shovels, get to work, and start making the sometimes dangerous trek to the courthouse.  We do this because the clients are counting on us, and if we don't show up we as attorneys face contempt charges or potential jail time.

I've known one criminal court judge in my career who took great pride in his SUV making it through as many snow and ice conditions as possible.  His motto was "if I can make it in, anyone can make it in," and he rarely shut down the court.  It would take an act of the government or a flat-out revolt at the Bar Association to get court to close for that day.  Jurists must make the hard decisions, and his was one of the hardest.  But he made it, and we who practiced in front of him made that trek, because our clients depended on us.

Moving to Knox County brought with it a little bit of a reprieve in certain court policies.  The standing policy of the local Juvenile Court has been to shut the court down when schools are closed.  Family Court under the previous judge used to be the same way. The rationale was rather simple: if the schools are closed, the parents who need to arrange for child care should be thinking about their children first instead of repeatedly calling the clerk's office asking if court is in session. It was a simple, elegant policy, and one that worked beautifully for the parents and the attorneys practicing in those courts.

It's pretty clear that our local elected officials either can't or won't spend the levels of money necessary to prevent extended shut downs like this and assist in staving off hazardous road travel.  I'd hope that one day we can establish across the districts a unified "snow closure" policy for the courts so situations that clog phone lines and keep people--especially litigators--wondering whether to report that day can be mitigated. I understand that creating such policies will create a backlog in the court system which is already beaten to death, but our clients' interests aren't what we're taught to suborn--it's our own personal interests, and client safety needs to come first.

If you're a person with a legal matter on a day like today, make sure that you're actually having court.  Call your attorney and see if he or she has any idea whether the court is open.  If you're unrepresented, look up the Clerk of the Court's office and call them to ask if your court is still in session for the day.  If it is, then advise the Court of your current travel conditions and let them know you're going to be a little late due to the weather.  Apologize profusely while doing this.  It's one thing to be late; it's another thing to be late and not have the courtesy to inform the Court.  It's another matter--and a far worse one--to simply assume you don't have court because the local schools are close and just not tell anyone you won't be coming.  Judges don't like it when they made the effort to show and you didn't; such a predicament can mean you're facing a contempt charge or worse a warrant for your arrest on a Failure to Appear.

Until such time as we get better court closure policies for all those involved in situations like this, please exercise a little common sense and make sure you abandon your assumptions on whether your court case will move forward.  It will make your life--and the lives of those who represent you--much easier.

When it Doesn't Look, Smell, Or Quack Like Mediation

I recently got an open house invitation to a new mediation practitioner's office in an area not too far from Compound West.  The new "Mediation Center" had a fancy set of invitations, and links to a new website. As I am one who always welcomes another interested soul in bringing change to the legal profession through alternative dispute resolution, I went to the new "mediation center's" website, and took a gander at the text on the page.  What I saw didn't necessarily give me very much hope for the way this "mediation center" will work out. The website didn't list one bit of a reason as to why the mediator chose this line of work or why he believed in the profession.  Rather, the "About Us" section read like a law firm website bio, listing the amount of cases tried, accomplishments in the legal field, committees on which the mediator has served, and his hobbies and interests. Adding to that, there's a section in the "mediation center's" website that helpfully talks about mediation in the following capacity.  I'm quoting semi-directly from the "mediation center's" website, and omitting personal details of the mediator, because I'm courteous and gracious to a fault:

Mediation is a voluntary, non-binding process using a neutral third party to guide the parties toward a mutually beneficial resolution of their dispute. Mediation is increasingly used by both plaintiffs and defendants and has established itself as a vital litigation tool by helping parties favorably resolve the lawsuit in a timely and cost effective manner. Experienced trial attorneys know very well the risk-benefit balance inherent in taking a case to trial, and understand that, in some cases, their clients are better served through mediating the issues. Besides risk-management, mediation is useful in the following situations:

• The other side is not evaluating your case realistically.
• The other side is not responding to your negotiation attempts.
• Your client is concerned about confidentiality.
• Your client wants to avoid setting a legal precedent
• The number of parties and/or complexity of issues makes direct negotiation impractical or impossible.

[The] "Mediation Center’s" founder, [REDACTED],  has practiced over thirty years and has honed his ability to: 1) identify and isolate the primary contested issues; 2) provide an honest and clear-sighted evaluation of each side’s position; and 3) offer creative and insightful solutions to bring both sides together. [REDACTED] cares deeply about resolving your case and persistently and tenaciously work to bring the sides together until your favorable result is achieved.

(my own emphasis added above)

Sounds great on initial glance.  It really does.  But one quick glance at the above positions shows this is not a site built for the layperson, and it is not a site where a party can come to truly learn more about mediation as it is commonly practiced or even taught.  I've highlighted a couple of the statements that grate at me like nails on a chalkboard so we can suss them out and see what's wrong with this entire picture of mediation "education."

1. Mediation is not a "vital litigation tool." It is a form of alternative dispute resolution where parties have an effective discussion facilitated by a neutral third party to come up with solutions outside of the normal litigation process to dispose of a case.  Too many attorneys consider mediation a "trial lab" to evaluate their case before it goes to court, and too many mediators facilitate that by letting attorneys speak too much and argue a case instead of letting the parties work through their respective problems.  (See Tennessee Supreme Court Rule 31, Section 2(i)).

2. A mediator's practice experience in a courtroom means nothing.  I've had people get surprised when they find out Rule 31 Mediators are also psychologists, social workers, and even people with communications degrees from other walks of life.  This is all perfectly acceptable, because when a party walks into a room for mediation they are not attempting to finish their case in court.  This is why we refer to mediation as "alternative dispute resolution."  Sure, it helps if a mediator knows whether a party solution will fly in front of a judge once the settlement agreement is presented, but that doesn't have to be the determining factor in a case.  Remember, if you're going into a mediation, it's YOUR story and YOUR dispute, not the attorneys'.  More importantly, you're not in court.  (See Tennessee Supreme Court Rule 31, Section 2(h))

3. A mediator identifying problems, evaluating a case's strengths, and offering solutions isn't practicing mediation. If you look at the first two points, you'll see what's wrong with identifying and isolating "the primary contested issues," providing "an honest and clear-sighted evaluation of each side's position," and offering "creative and insightful solutions to bring both sides together."  In mediation, a mediator shouldn't be doing that, because they're present to facilitate party discussion.  The parties are the ones whose opinion matters, not the mediator's.  The mediator shouldn't be identifying the problems, because it's not his dispute.  The mediator shouldn't be evaluating a case's strengths or weaknesses, because it's not the mediator's case.  That's called "evaluative case analysis," and it's a form of alternative dispute resolution, but it's not mediation. (See Tennessee Supreme Court Rule 31, Section 2(c)).  Finally, a mediator that offers solutions isn't practicing mediation and is running on the razor's edge of violating neutrality.  What if the proposed "creative and insightful solution" isn't favorable to one party in the dispute?  What if it gives one party too much of the proposed pie?  What if the other party doesn't feel as though they have power in the mediation room because the mediator is the one doing all the talking, and clams up as a result?  None of this is mediation--it's a process that is corrupting the way mediation is defined and recognized even in Tennessee.

Stuff like this "mediation center" and its website does the world of alternative dispute resolution absolutely no good.  It's becoming far too often that former trial lawyers will stop taking cases and move to "mediation," because they're tired of seeing people fight and they want some authority in how a case is settled.  While I personally welcome new mediators into the fold, and I want to see mediation flourish, I want to see it done right, and I don't want to see "education" like this corrupting the public's view of what mediation is or should be.

Take the time to learn what mediation really is, and see for yourself that a process espoused by "mediators" like this "mediation center" offers isn't mediation.  Educate yourself and make sure your attorney knows what mediation actually is.  You'll be glad you did, and you'll be more satisfied with the outcome.