DaisleyLaw logo

MEDIATION MINUTE:
After twenty years of mediation
under the "new" rules in North Carolina,
are there "best strategies"
for attendance at mediation?      
February 2012                Like us on Facebook View our videos on YouTube Follow us on Twitter View our profile on LinkedIn 
________________________________
MCD Standing Cropped
Mike Daisley
Attorney & Certified Mediator,
NCDRC

Rule 4A(1) dictates who HAS to attend the mediation...but Rule 4A(2) offers wide discretion.

So what are your best options?

     Twenty years ago, in January 1992, veteran litigator and mediator extraordinaire Andy Little convened the first settlement conference under the authority of the newly enacted "Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions."  (See my quick shout-out and "thank you" to Andy in the video below, in recognition for his 20 years of "raising the bar" for all litigants and mediators.)  In the two decades since, mandatory mediation in all 100 North Carolina counties has forever changed the landscape of civil litigation in state courts.  

Mike Daisley Gives a Shout-out Andy Little - A Mediator's Mediator!
Mike gives a Shout-out to Andy Little... A Mediator's Mediator!

     Even so, it amazes me how often mediation seems to be an after-thought of most litigants.  If any preparation is done at all, it's often done the night before, as the file is dusted off and packed in the attorney's bookbag to be taken home and (maybe)  scanned before the next morning.  Even though the "new" rules of 20 years ago state that the purpose of mediation is "to focus the parties' attention on settlement rather than on trial preparation," it often appears the parties prior to mediation are focused on neither.

     One of the first decisions an advocate should consider when planning for a mediation is who will, or should be, in attendance.  Rule 4A(1) governs who "shall" attend including the (a) the parties, (b) insurance company representatives and (c) attorneys.  But under Rule 4A(2), the parties "may have the attendance requirement excused or modified..."

 

     As an example, consider a few of the possibilities in a "standard" injury case...

  • Should the actual defendant attend?  Most plaintiff attorneys want to force the defendant to attend, supposedly to put pressure on his/her insurer to settle.  But this can be a loose cannon.  Many times in private session I've heard the defendant yell, "Don't pay that lyin' faker a dime!!!" 
  • Can the "real" insurance representative be on immediate phone stand-by?  The rules require someone "with authority" to be present, but that includes authority "to negotiate on behalf of the carrier" which of course doesn't always mean authority to settle.  A wise plaintiff's attorney will check with defense counsel to make sure that whatever adjuster is there "can promptly communicate during the conference with persons who have such decision making authority" as the rules require.
  • What about "non-party" attendees?  My particular preference has always been to encourage the presence of anyone who has the influence to exert "veto" power over a litigant.  In my view, it does no good to spend the whole day negotiating what appears to be a decent settlement, only at the end to be told, "Before I agree, I have to check with my spouse." 
  • And what about the lien holders? Folks who are almost always absent are the lien holders.  That may seem a little strange because the rules make clear they have an absolute right to attend and participate.  (Rule 4B states that a party notified of a lien "shall notify said lien holder or claimant of the date, time, and location" of the mediation.)  The risk here is almost always on the Plaintiff.  Smart Defendants always require indemnification that lien holders will paid from the settlement funds.

     There are other factors, of course.  The main point here is that those factors ought to be considered!!!  (And sometime before the mediation itself would help...)

     If you ever want to consider these things and just "chew the fat" over how to assure the "right folks" are there, please don't hesitate to contact my office.  You can reply to this email, or follow my law firm on LinkedIn, Facebook, Avvo and YouTube.

    Or better yet -- just pick up the phone and dial 704-887-6776.  Even if I can't help you directly, I'll always do my best to steer you in the right direction. 

 

All the best,
Signature                                                
Michel C. Daisley
Attorney & Certified Mediator, NCDRC

  

DAISLEYLAW, PLLC 
2412 Arty Avenue
Charlotte, North Carolina 28208
   
DaisleyLaw logo       

  

  

  

  

     
      [email protected]                             
      phone:  (704) 887-6776 
      fax:        (704) 887-6790
       

                                          Like us on Facebook View our videos on YouTube Follow us on Twitter View our profile on LinkedIn 

 

 

New to this e-newsletter?  Check out earlier e-ditions and videos of Mediation Minute & "Legal Trends, Odd & Ends."

 

    This "MEDIATION MINUTE" newsletter  is meant to offer just a few quick insights to keep in mind and perhaps consider for mediation advocacy. Some earlier editions have looked at Opening Statements (with videos specifically 

Two Words To Consider To Close The Deal In Mediation
Two Words To Consider To Close The Deal In Mediation
for Plaintiffs and Defendants); and through The Power of an Honest Question there may be a technique to help diffuse the anger of a client or opposing counsel. (See video at right.)  Again, all of these newsletters and videos are archived at the DaisleyLaw.com articles page. 
     If you are a true glutton punishment, check out some of my LEGAL TRENDS ODDS & ENDS eNewsletters as well, and some of the videos attached.  Again, they can be found under the DaisleyLawGroup page of YouTube.  
     And now that I have joined forces with Bill Powers of Powers McCartan, PLLC, the use of videos will become even more prevalent as a way to communicate about various legal issues and common concerns.  
You're receiving this email because of your or your company's previous contacts with Charlotte attorney Mike Daisley of the law firm of DaisleyLaw, PLLC.  Its purpose is to provide you and your colleagues and friends with helpful information and general legal insights.  This email is NOT intended as a solicitation of representation, nor specific advice for any specific legal problems or issues.