MEDIATOR HIJINKS

"You can't play your friends like marks, Hooker."-Henry Gondorff, The Sting.

As a facilitator, I understand that the mediation process is not about me.  When attorneys hire me, it is based on a belief that I can help them and their clients resolve a case.

I am grateful for their consideration.  They could have hired someone else. My mediation "Hippocratic" Oath is:  Do No Harm to a Lawyer, especially in their relationship with their client.

i don't  use a case as an opportunity to wring as much money out of the parties as I can.

I've seen it done.

Back before mediation essentially became a part of every case, an attorney in Flint became an player in the facilitation game.  They had been appointed by the judge on one of my cases.  I did not know them.  This lawyer sent us their agreement, and procedures, which included 4 different levels of billing.  I don't remember all 4, but I remember a rate for their time, a rate for administrative work, and a rental rate for the conference room at his office!  As I had an office in Flint across the street, I notified them that I did not need to rent their room, and they could come across the street to my place.  I don't remember if there was a special rate for travel.  

That experience led me to explicitly state to my mediation clients that there would never be an administrative/file set up fees.  

I know mediators who charge minimum fees, whether the case is settled, dismissed or otherwise disposed of before the hearing.  

Others charge a fee if a case is adjourned, whatever the reason.  I have heard of adjournment fees of $1000.  One mediator, perhaps waxing nostalgic for their days as a judge, will assess the whole of the adjournment fee to the party they feel was responsible for the adjournment.  Talk about making attorney/client relations difficult.  

There are also nonrefundable deposits charged merely to get a date on the mediator's schedule.  

I am informed that recently the parties to a case (not mine) had the bad taste to settle well before the mediation date.  The mediator insisted on payment of a $900 cancellation fee.  At least one of the firms involved will not be sending them any business in the future.  That mediator now lists on their very slick website (that does not include their hourly rate) that there are no (longer) minimum fees or adjournment fees.  

A potentially expensive lesson in humility.

Mediation is supposed to help reduce litigation costs.  That is a questionable proposition sometimes.

I am reminded of the days of setting up de bene esse depositions prior for trial.  As a plaintiff, there were often 3 or 4 doctors to schedule, and I had to bow to the doctors' fees (prepayment was the rule), schedules, etc.  There was no reasonable alternative.  You had to present the treaters (hopefully in a good mood and supportive) to the jury.  If the terms and conditions were $2300 an hour, with full payment retained if the dep was cancelled or adjourned for any reason, generally due to case settlement, you swallowed hard, and paid. The one time I drew the line was when that same $2300 lost my client's file and wanted to charge me for the 30 minutes it took for him to find it.  Granted, that search did delay the dep's 6am start time.

With medical treaters, trial lawyers don't have many alternatives when trial comes around.  That is not true with mediation.  There are lots of options out there.  And, to be fair, profit margins aren't so thin in the mediation game that members of the "Guild" need to squeeze the last dollar out of our customers.  We should remember that.

(Ed. Note) When I was faced with a doctor who wanted to keep the full fee for a cancelled trial dep, I threatened to come to doc's office at the scheduled time, and require him to sit there with me for the full time set for the dep.  He could do no other work during the time set for the dep.  I never followed up on that threat.  I didn't want to sit in any doctors office at 6am or 9pm.