Small Law Firms

With $100 Mediators, Sometimes You Get What You Pay For

A cardboard cut-out of a badger would be a better mediator.

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Hand giving golden coin to another handAll things being quiet on the fashion front, I’m looking your way Stephen R. Williams, I will now go back to writing about being a small town lawyer.

Where I practice, all Family Matters cases are required to attend mediation. This is a common practice, as I understand it, in most states. It has been my practice — unless the case has highly complex financial issues, or the attorney on the other side is truly unreasonable — to counsel against paying a private mediator. Instead, I suggest using the services of a court-appointed mediator for which each side pays an amount less than $100. This entitles my client to at least two mediations (once I was even able to obtain a third mediation immediately prior to trial at no additional expense) and, I presume, a ticket redeemable for all-you-can-eat shrimp.

The problem — notwithstanding the disquieting notion of consuming shrimp prepared in the Court kitchen — is that you don’t get to pick your mediator. I am growing increasingly aware, based on the raft of poor to middling even poorer mediators I have recently had, you often get what you pay for. Don’t get me wrong, I have experienced tremendous service from a variety of the court paid mediators I have worked with in the past. It is because of their work (and the very reasonable expense to clients) that I have continued to use these services. But, the last few court mediators have me re-considering my advice to clients that they forego private mediation. I don’t really know how to explain their deficiency, so… well, here is a list of individuals whom I think could have accomplished more than the third-party neutral in one of my recent mediations:

  1. The Plaintiff;
  2. The Defendant;
  3. A cardboard cut-out of Ed Hochuli;
  4. Counsel for the Plaintiff;
  5. A badger;
  6. Counsel for the Defendant;
  7. The Plaintiff and Defendant’s mutual kid whose visitation schedule is one of the primary issues in the case;
  8. The Plaintiff’s kid by a previous marriage who hates the Defendant;
  9. A cardboard cut-out of a badger;
  10. 9% of all plant and animal life on planet Earth.[1]
  11. 9% of inanimate objects (inclusive of course of cardboard cut-outs of a badger and Ed Hochuli, but also including without limitation, cardboard cut-outs of the letter T, Mr. T, Ice-T, a T-Rex, T-Boz from TLC[2], the Grand Tetons, and Earl Grey Tea).

Again, most of these court-appointed mediators are skilled and capable individuals who are interested in their job and doing a good job. I am going to assume that these recent experiences are anomalies, and that the mediators who provided these experiences are deviations from the norm and represent a few individuals who are there to check a box.

Until that working assumption is proven incorrect, however, I will be carrying cardboard cut-outs of T-Boz, Left Eye[3], and Chilli in my briefcase for those instances in which the incompetent few are assigned to mediate my cases.

[1] The above individuals and beings inclusive.

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[2] She would of course be highly capable as a third-party neutral in ensuring that none of the parties goes chasing waterfalls, and suggesting that they should instead stick to the rivers and lakes that they are used to. She would achieve this by admonishing them that while they would perhaps prefer to have it their way or nothing at all, they may be moving too fast.

[3] Rest in Peace.

Atticus T. Lynch, Esq. is an attorney in Any Town, Any State, U.S.A. He did not attend a top ten law school. He’s a litigator who’d like to focus on Employment and Municipal Litigation, but the vicissitudes of business cause him to “focus” on anything that comes in the door. He can be reached at atticustlynch@gmail.com or on Twitter

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