Fairly Legal is Unfairly Inaccurate About Mediators

I try to give all the new legal shows a fair chance. So when I started watching Fairly Legal, the new USA show, I was really hopeful. USA has a great track record of developing shows I enjoy. In fact, I think I watch all of their original shows: Burn Notice (one of the best shows on TV), Psych, In Plain Sight, White Collar, Royal Pains and Covert Affairs are all season passes on my TiVo. So I thought, yay, finally there will be a fun legal show I can watch.

The fact that the show has a mediator as its lead character made me really excited, since I’m a mediator, since I talk about mediation in The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, and since the only other show with mediator characters I can recall is Wedding Crashers. When I teach at writing conferences, I always talk about underutilized characters in the legal system that writers can utilize to get away from the old typecasting. Mediators have great possibilities, so I encourage writers to use them in their stories.

The characterization was pretty good, and that’s what USA is particularly good at. They develop interesting characters with interesting backgrounds and make them funny. Fairly Legal started out so well – the mediator was the victim of an armed robbery and she negotiated a resolution that was a win-win for the robber and store owner. Fantastic!

Then it went utterly off the rails. The mediator is a former lawyer who works for her now-deceased father’s law firm. The wicked stepmother is in charge and clients start abandoning the firm the day of Dad’s funeral. The firm’s in trouble, and one of the firm’s clients is about to walk away from a deal the firm negotiated. Wicked SM wants our mediator to mediate the client back on track. In the meantime, a judge who hates our mediator appoints her to mediate a case he thinks is a waste of time. Okay, so far not so bad.

Here are the top ways this story went into lala land:

1. The firm apparently has the mediator mediating for the firm’s own clients. This particular case didn’t involve a non-client, but if it did, she couldn’t be the mediator. She has a conflict. She can only mediate cases where the firm and she don’t have any dog in the race. If it’s a client, she can’t be the mediator. They didn’t do this wrong yet, but they plan to. Note to writers: STOP IT NOW, BEFORE IT’S TOO LATE!

2. The mediator blackmailed one of the firm’s clients to get her way. Malpractice central. First of all, she went and did her own research. A mediator would never start investigating a case they were mediating. She has to work with the facts and information the parties give her. She can never be an advocate. Second, she can’t blackmail anyone, much less a client. Blackmail is illegal. Mediators have a code of ethics that require them to remain neutral. As a lawyer in a law firm, she also owes a duty of loyalty to the firm’s client. Go directly to the disbarment hearing.

3. The mediator inserted herself into a criminal case that had an impact on her mediation. She met with a criminal defendant without his attorney. She can’t do that because she’s still a lawyer. And she has no business getting involved in a case she isn’t mediating.

4. The judge who appointed her told her that if she didn’t settle the case by the next day she’d be in jail for contempt. That judge would be up on charges so fast his head would spin. A mediator can’t make parties settle and neither can a judge. The mediator should have declined the case (which is her right) and reported him to his judicial qualifications commission.

5. The mediator decides at the beginning of the court-appointed mediation that the case is bogus. She sends all the defendants home without any agreement from the plaintiff to dismiss the case. Until there’s a signed settlement, the mediation isn’t over. Plus, she can’t decide which side is right on her own, whether or not she has her personal beliefs. She shouldn’t be allowed to mediate. She’s incompetent. Not that she’s a bad negotiator. She’s a pretty great one in fact. But she’s a terrible mediator as written.

Here’s how mediation really works:

Mediation is where a neutral third party tries to help the parties reach a settlement. Mediators aren’t able to make decisions in the case, and won’t be the person deciding the case if it goes to trial or arbitration. Their job is to get the parties to reach an agreement so that everyone walks away and says, “I can live with that.”

You may remember Wedding Crashers as a funny movie about two guys who crash weddings. But do you remember how it started? The crashers are family mediators, and the mediation scene is fabulous. It’s funny but realistic. These mediators are creatively trying to get the parties to move off entrenched positions, which is exactly what real mediators do:

Lawyer: “I knew this was a bad idea.”

Mediator 1: “You know what Ken, the bad idea would be to let your client walk out of here today and drag this thing out another year, wasting more time and wasting more money. The only good idea is to let me and John do our job and mediate this thing right here.”

Mediator 2: “You wanna hear the crazy thing? I know it doesn’t feel like it, but we’re making progress. We settled the deal with the cars. Let’s see, that takes us to frequent flyer miles. We’re flying.”

The mediators took an argument and made it turn around. They got the couple to remember some of the good days of their marriage and the case settled. This is a great example of using a realistic scene, adding some humor, and giving the story authenticity. Just because it’s comedy doesn’t mean you don’t have to keep it real.
Mediations can be a fun or serious aspect of your story. They can be a brief interlude or the climax of the story where everything resolves.

Mediator characters will tell the parties that, if everyone is a little unhappy with the settlement, it is probably about right. They are trained in tactics to help the parties reach a consensus. Mediation will usually start with a session where everyone is present. The attorneys if the parties are represented, a party representative if it’s a corporation, the party if it’s an individual, and the insurance adjuster (if there’s insurance), will be present, or sometimes on the phone. The mediator will explain the process and give each side time to explain their side of the dispute and what efforts have been made to settle the matter.

Most mediations then break into “caucuses,” where the mediator will meet with each side in separate rooms.They’ll discuss the upsides and downsides of the case, and relay any settlement offers from the other side. What is discussed in caucus is confidential unless the party relaying the information gives the mediator permission to relay it to the other side.

The mediator will then go back and forth between the parties, relaying information and offers, asking questions, making sure both sides understand the risks of going to trial, and try to reach a settlement. They can’t give legal advice or put pressure on any side, and they can’t prefer one side over the other. They can’t try to bully the parties into a settlement

Mediators have to disclose any conflicts, prior dealings with either side or the attorney, or other potential matters that could affect their impartiality. The parties can object to any mediator, and will usually be asked to agree on one. Sometimes the court or mediation group will appoint one, subject to objection by either side.

The mediator is paid by the hour or on a flat daily rate, and is paid whether or not the case is settled. Most cases that are mediated settle at mediation.

Mediation with a trained, competent mediator may be the best thing that has happened to the justice system in the past century. It has done much to unclog the court systems and move the parties toward amicable resolutions.

If a mediation is successful, the parties walk out with a signed settlement agreement. If unsuccessful, impasse is declared and the case goes on to the next step.

I actually liked Fairly Legal because I enjoyed the characters and found it funny. With a little tweaking, the writers can get it back on track to show what mediation really is and use it to full advantage. Because there’s no judge present, anything can happen at a mediation. The writers should use this to full advantage while still holding true to what mediation is all about. I’ll give the show another chance or two, but if it stays so ridiculously far from what is realistic, I won’t be able to watch it for long.

The Mentalist’s Writers and the Genetic Information Nondiscrimination Act

Kudos to The Mentalist for showing the very first violation of the Genetic Information Non-Discrimination Act (GINA) that I’ve seen on TV. If you don’t know about GINA, it’s the law that says employers can’t discrimination based upon genetic information they have about an employee. I think The Mentalist crossed that line in the latest episode.

The writers didn’t mean to violate the law. But they did it all the same. In the latest plotline, Internal Affairs is investigating the department because a very bad guy burst into flames in his jail cell. He needed killing, as any one of the cops would tell you. This episode focused on CBI Agent Rigsby. I won’t rant about the fact that he was meeting with the IA investigator without his union rep since I just did that rant about another show (it’s wrong, wrong, wrong!). Okay, a little rant.

No, this rant is about the fact that the investigator looked into Rigsby’s past and found that his father had quite a colorful criminal past. The investigator then announced that criminal behavior can be genetic and that he was looking into Rigsby as a result of his association with his father. Hello? Can you say lawyers and lawsuits?

Once the investigator decided that Rigsby had a genetic condition, he can’t discriminate against him because of it. That includes putting him under the microscope in an investigation, questioning him about other incidents from years ago, and harassing him.

I adore Simon Baker and will continue watching The Mentalist just for his smile (and the mostly excellent writing) but please stop this ridiculous plot line (and for God’s sake, get Rigsby a union rep) before I throw a shoe at the TV screen.