Sarah Shahi lands role as divorced lawyer who becomes a mediator.

I should have known that it was going to be a weird one when the ADR office emailed me within 15 minutes of sending out the Notice to tell me that the Plaintiff’s attorney had withdrawn.  My second hint should have been the letter from the defense counsel to the now pro se (unrepresented by legal counsel) party.

What really drove the point home was a phone call with the pro se that went something like this:

ME: This is Chris Annunziata.  I am the mediator assigned to handle your case.  I just want to confirm that you will be attending the mediation on Tuesday.

PRO SE (”PS”):  Yea, but I ain’t gonna pay you.

ME: Well, then, we have a problem.

PS:  No.  There’s no problem.  I ain’t paying you.  I don’t see the point in having mediation.

ME:   Do you understand that the Court has ordered the parties to participate in mediation and appointed me to mediate this case?  This is your opportunity to try to discuss a settlement with the other side and try to resolve this case before appearing before the judge.

PS:  I don’t care.  I ain’t paying you.

ME:  Are you telling me that you want to mediate, but refuse ot pay me or that you don’t want to mediate and want to cancel?

PS:  No, I don’t want to mediate.  And I don’t have any money to pay you.

ME:  OK.,  Then we’re going to cancel the mediation because you refuse to appear and I will file a report with the Judge that you failed to appear at mediation.

PS:  Wait.  I’m gonna be there. But I ain’t gonna pay you.  They took all my money.   [Mind you, this is a personal injury dispute, not a theft or fraud case]

ME:  The court imposes a fee for the mediation and I am entitled to my compensation for mediating this case with you.  I suggest you discuss your complaint with the Court or the ADR office, but if you appear tomorrow, you will be responsible for one-half of my fee.  Otherwise, I’m canceling the mediation now.

PS:  I’m coming, but I ain’t paying you.  You better be there.  Do I gotta go through a metal detector?

ME:  Yes.

PS:  Then I’m gonna have to leave my guns at home.

ME:  Yes, you will.  You cannot carry a firearm in the Courthouse.

PS:  Yes, I can.

ME:  You will have to take that up with the deputies at the security desk, but there will be a metal detector.

PS:  OK.  I’ll be there.  You better be there.  And I ain’t paying you.

——–

And once again, it reminds me that I need to get back to writing. I have a story in the can, and I think enough time has passed to post it this week (even though I think I thoroughly obfuscated it for confidentiality).

C

It was wholly the idiot’s other driver’s fault.  Damn suburbanite didn’t know where he was and decided that because he had a green light (but no green arrow), he could just turn left across one of the busiest intersections in Midtown Atlanta without looking.  He hit me.  Yes, me.  The nose of his car crushed in the driver side door and front wheel well.

The only person more daft was the officer, who didn’t cite the man for several infractions, including failure to yield to oncoming traffic and no proof of insurance.  I think the cop took pity on the other driver, who walked with 2 canes and looked like he had MS or MD or something.

Thankfully, the idiot guy had insurance, just not current proof.  So, I’ll be sure to have some stories in the next week or so as I engage in two of the most hated transactions: dealing with a claims adjuster for the at-fault party to value my car, which he decided was a total loss; and dealing with used car salesmen and/or private party car sellers who all think their car is a creampuff and the best example of that model out there.  Two sides of the same coin.  It should be fun. And by fun I mean annoying as hell.

Remember the fallen.

-Thomas E. Franklin / The Record – (Bergen County NJ)

Fr. Mychal Judge, O.F.M. – He was simply Fr. Mike to those of us at St. Joe’s, in tiny West Milford, NJ.

The second show was Shark Tank, the American version of a British show called Dragon’s Den (also available on BBC America).  Shark Tank gives various Ralph Kramden-types the opportunity to pitch their business ideas to five very successful business-people who then compete for the right to buy a stake in the start-ups.   As an avowed capitalist, I enjoy seeing the ideas that these entrepreneurs cook up and then watching the multi-millionaires fight to see who gets a stake in the business.

But the disappointing, and somewhat shocking, aspect of both shows is the abject inability of most these people to negotiate.

On Pawn Stars, the people are interviewed by the producers before they enter the shop.  They describe the article they are trying to sell and are asked what they would like to get for it.  Some know roughly what the item is worth and this is invariably the exact same amount they tell Rick the pawn shop owner when he asks what they want for the item.  At this point, they’ve lost.  From there, Rick only goes down with this offer and the usually dejected seller reluctantly accepts 30-50% of what they claim they wanted.

Now, they may be savvy and really got more then they expected to get, but something tells me that people who try to sell an authentic Civil War saber worth several thousand dollars to a pawn shop and not a private collector might not be the shrewdest of the shrewd.

Likewise, on Shark Tank, the minnows either think they are setting an anchor point or have no idea how to value their business.  Most massively overvalue their business and offer a minuscule equity stake. A recent example saw a woman ask for a six figure investment in exchange for only 25% of her business.  She therefore “valued” her company at more than $400,000.  In the last two years, however, she had only $18,000 in gross sales.  By standard business models, her business might have been worth $40,000.  The only successful minnows are the ones who realize that having 49% of a successful business is better than 100% of a failing one; or are the ones that put forth a more reasonable number at the start.  The others walk away mumbling, “I’m going to show them…..”

As someone whose job it is to facilitate negotiations, I can’t say that I am surprised.  I run into both sets of bad negotiators all the time.   I guess I should be happy to a certain extent, because if people really understood how to objectively value their claims, express their needs and interests clearly and effectively and negotiate on their own, I’d be out of a job.

Thanks to Walter Olson at Overlawyered.

Last week, business hardware company Pitney Bowes announced a mediated settlement of a class action “blast fax” lawsuit originally filed here in Georgia.  The suit arose when Pitney Bowes purchased a smaller supplier of printer products and used that customer list to solicit business from the supplier’s customers. The “blast fax” law prohibits companies from sending solicitation faxes without permission of the recipient or an existing business relationship.  Even though the supplier Pitney Bowes purchased had a relationship, the law prohibits companies from buying customer lists to circumvent this prohibition.

I think it was perfectly reasonable for Pitney Bowes to assume it had the right to use the customer list, which is an asset it purchased and which had a distinct value.  It was likely itemized among the various line items in the settlement papers.  The people on the customer list bought toner from the old company.

In any event, the lawyers who specialize in suing for such violations got involved.  Classes were certified.  The case was removed. And the parties decided to go through voluntary mediation. After two days of “some of the most intense mediation [the Plaintiffs' lawyer has] been through,” the parties agreed to settle the claim.  Normally, I’d be all for this.

The final settlement provided that “each member of the class will receive a coupon worth $26 toward any $100 purchase of ink or toner from Pitney Bowes for each week they received one of the faxes, with a $2 million cap on redeemed coupons.”

So what about the plaintiff’s lawyers?  They got roughly $1 million.  In cash.

It just doesn’t sit right with me.  Again, I am not against the plaintiffs bar or for attorneys being fairly compensated.  I understand class actions can be quite expensive, but this just seems out of proportion, to both the length of time the case was active and the actual settlement agreed upon.  As Walter Olson of Overlawyered notes in a 2006 article, it has become quite the cottage industry for a small group of lawyers. Assuming Pitney Bowes is “out” the maximum $2 million in lost revenue from coupon use, the attorneys will have collected 47.5%  of the damages as fees.

In the abstract, I can see the benefit of laws like this.  By creating a civil liability enforceable through the courts, it transfers the power to police the behavior from the state to the individual.  The threat of a potentially crushing monetary judgment for violating the law is meant to deter the violator from engaging in the prohibited activity.  Whether it works or not is debatable.  My guess is that blast faxes have disappeared more from the simple fact that nobody faxes anything anymore when you can scan and email.

Back to the case at hand. Pitney Bowes sent blast faxes to customers of the business it just purchased. Apparently, some customers didn’t want to do business with Pitney Bowes, or just wanted the faxes to stop.  Those blast faxes violated the letter of the law and exposed the company to significant money damages payable to the aggrieved customers.

So what did the plaintiffs’ lawyers negotiate on behalf of the plaintiffs, who supposedly sued to stop receiving faxed coupons, and who were entitled to money damages?  Coupons for the plaintiffs.  Cash for the lawyers.

Of course, we don’t know what happened in this “intense” mediation.   Nor do we know whether the initial demand from the plaintiff’s lawyers was for a cash payout to the relatively small and easily identifiable class.  But it is hard to say that this settlement benefited the interests or needs of anyone except the plaintiff’s lawyers.

I am caught at a loss, because I wasn’t really planning on doing that, and haven’t seen anything come across the various news/blog/web sources that I read that inspired me to write.  And I certainly could not write about the very difficult, emotionally draining mediation I had yesterday.

I will be thinking about a topic or two and try to put something up later today or tomorrow.

Thank you again to Diane for the recognition and I hope to have some new material soon.

C

Geoff’s blog was one of the first I found as I was researching whether and how to dive into the mediation blogosphere.  I will definitely miss his informative, yet very entertaining, self-deprecating style.

Quite ironically, he was the first to try to talk me out of quitting blogging back in May.

Geoff’s posts will be missed and I wish him the best in whatever new challenges and family matters that are pulling him in different directions.