AboutPaul D. Friedman, M.A., Ph.D., J.D. Expertise I am a licensed attorney and Judge Pro Tempore who has conducted and been involved in hundreds of mediations and thousands of arbitrations. I can answer questions regarding settlement conferences, mediations or arbitrations. I do not give legal advice over the internet and it would be helpful to list your location such as country or state.
Experience I am a licensed attorney, Judge Pro Tempore and adjunct professor.
Experience in the area I have been a licensed attorney since 1989 and a Judge Pro Tempore since 2005. Additionally, I have a masters degree in bioethics and a doctorate of philosophy regarding comparative ethics
Organizations State Bar of Arizona
State Bar of Colorado (inactive)
District of Columbia Bar (inactive)
Federal Bar
Licensed in Arizona District Court
Licensed in Ninth Circuit Court of Appeals
Licensed in the United States Supreme Court American Bar Association National Board of Trial Advocacy
American Association for Justice Arizona Trial Lawyers Association
American Society for Bioethics and Humanities Kennedy Institute of Ethics National Association of Realtors
Education/Credentials Bachelor of Arts 1985
Juris Doctorate 1989
Master of Arts in Bioethics 2004 Doctorate of Philosphy 2006
Awards and Honors Phi Beta Kappa
Multiple Who's Who
Publications A list of my copyrighted publications and presentations is contained at WWW.EXPERTETHICS.COM
Question I am located in Northern California. I was searching for a
description of the responsibilities of a mediator when I
ran across this website. One of the moderators stated
earlier that “mediators … specifically do not advocate any
position or try to persuade parties to do one thing or
another”. This confirmed what “I thought” was the role of
a mediator, so now I am all the more discontented with the
ADR process.
Firstly, let me give you some background.
This case involves excess underinsured motorist coverage
under my personal automobile policy as well as my Personal
Umbrella Policy, I am the plaintiff. The defendant’s first
offer was barely over six digits; my attorney wanted me to
settle for $xxxx “new money” (whatever that is), I wanted
$xxxx plus $50,000 as a “minimum”, he appeared to be just a
little ticked at me for forcing ADR.
I, my attorney, two insurance adjusters from my insurance
company, and a mediator met this past Thursday and my
attorney and I are now waiting for a response from them
concerning our offer of settlement. Here are my concerns:
1. It was my understanding that we were going into
“arbitration” until two days before the meeting when my
attorney’s secretary faxed me my attorney’s brief, along
with the defendant’s brief, both were marked “Mediation
Statements”.
2. I never received any previous correspondence from the
mediator or my attorney like that discussed on the Superior
Court of California web site, the correspondence that talks
about disclosing “all fees to counsel and parties”, etc.,
nor was I given any documents or disclosures before, during
or after the mediation process. I had no idea who the
mediator was until I saw his name on the brief, and next
when he introduced himself to me at the mediation
conference.
3. I fully expected that the mediator was familiar with
the facts of my case, but it soon became overwhelmingly
evident that the only knowledge he possessed was that which
was contained in the briefs he was provided with, which
were truly “brief”.
My experience in this conference was exactly like the last
time I purchased a new automobile, my attorney acted out
the role of the “salesman” and the mediator was the
“closer”. The mediator began the meeting by expounding
that I had a big problem with proving negligence, quoting
verbatim what was stated in the defendant’s brief.
However, when I informed him that it was later “proven”
that the driver of the other car had committed perjury at
my traffic court hearing, he was totally lost for words,
that evidence was clearly part of the paperwork my attorney
provided him – a BIG part of it! My attorney confirmed my
statement, and this was my first inkling that he had not
reviewed any of the case history he was provided with.
A while later he made the statement that according to my
doctor’s medical records, “I did not mention any new
symptoms related to the motor vehicle accident” and that
“the diagnoses were absolutely identical to those put forth
before the accident”. Again, this word choice was verbatim
out of the defendant’s brief. Fortunately I had reviewed
my medical records not long before and when I corrected him
and told him this was the first time I had ever complained
of “HIP” and “BUTTOCK” pain and that it was very clearly in
my doctor’s notes for that visit, he scoffed at me and
insisted that it was not. He then went so far as to dig
out the record for that visit and read me the narrative. I
then asked him for the record, circled the very first item
that was in all capitalized letters at the very beginning
of the doctor’s notes, and handed it back to him, stating,
“right there it is”: “CHIEF COMPLAINTS: MID BACK, LOW
BACK, HIP, BUTTOCK AND BURNING NECK PAIN”. My attorney
immediately chimed in and changed the subject.
The whole meeting lasted about three hours and I could give
you several more examples, but I think you get the picture;
the mediator would leave for thirty minutes at a time, then
return with an offer that kept getting upped at $2,500 to
$5,000 each visit. I finally got worn down around lunch
time and said I would settle for $xxxx plus $25,000.
My question is this. Is the mediator expected to be
familiar with the facts of the case, or is he just there to
be totally neutral, facilitate negotiations and keep the
plaintiffs and defendants from getting into a fist-a-cuff?
He was neither of the above. Do you think I was expecting
too much of this mediator? I feel very much “cheated” out
of my day in court, and am very much disillusioned about
this whole ADR process.
Bud
Answer Bud,
I cannot tell you if it was a "fair mediation". I can help educate the public regarding the difference between a mediation and arbitration. A mediation is the two parties (or more) getting together with the ultimate goal of settling the matter. The mediator generally has no authority and acts as an intermediary to try and achieve a settlement. On the other hand, an arbitration involves an arbitrator who acts as the trier of fact and makes a decision as to who wins and the amount.
It was up to your attorney to explain this was a mediation and not an arbitration. It was up to your attorney to select a mediator who could potentially accomplish the goals of settlement.
Some mediators review the material and some don't. I have been involved with hundreds to thousands of mediations and know who has reviewed the material and who has not. It is extremely frustrating when the parties pay a mediator by the hour and the mediator does not know the facts.
A good mediator gets one party to pay more than they wish and the other party to take less than they feel comfortable with. In the end, a good settlement gives both parties security in knowing the end result.
I understand why you are frustrated. This sounds like a poor mediation experience because the mediator was not prepared. You should have a frank discussion with your attorney to determine if your expectations are reasonable.
