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Wednesday, March 23, 2011

The Good Wife Doesn’t Know Much About Mediation

Why the heck can’t TV shows get mediation right? I mean, if a comedy like The Wedding Crashers can do it, why not courtroom dramas? Fairly Legal has made a mockery of what mediation is about, but I expect USA shows to be silly. Now comes The Good Wife, and I usually expect better from them. I’m a mediator, and this kind of error hurts my feelings because the writers clearly don’t give a hoot about getting mediation right. Mediation is suddenly popular with writers, so why won’t they find out what really happens in a mediation session?

Getting it wrong

Here’s just some of the stuff I keep hearing on TV about mediation that’s glaringly stupid.

The mediator doesn’t get to decide what is a fair settlement. I keep hearing mediators in these shows saying things like, “I need to hear this evidence so I can decide what a fair settlement will be.” Huh? The mediator doesn’t decide diddly. The mediator helps the parties reach a settlement. The mediator can’t make any legal decisions, can’t decide what the damages are, can’t hear testimony, can’t tell the parties what to do. The mediator in The Good Wife said this and I almost threw a shoe at the screen. It’s cringe-worthy. The easiest fix in the world is to stop having your characters say such ridiculous things.

The mediator can’t demand they hear testimony or see any particular evidence. The mediator may sometimes be shown evidence or excerpts from deposition transcripts to help them understand the case and the issues. But they don’t get to order the parties around, don’t get to do their own investigation, and can’t demand that someone be present without the parties’ permission. In this episode of The Good Wife, one side didn’t want his son to testify. Since nobody can be present at mediation other than the parties, their lawyers, the mediator, and anyone the parties agree can attend, this was laughable. Stupid, stupid plot device. The lawyer could have just said that if it didn’t settle the son would be called. Such an easy fix.

The parties don’t storm out of a court-ordered mediation. In Fairly Legal, the mediator character has one side or both storm out within seconds of every mediation. Then she has to chase them down and talk to them at home or work or wherever. It’s laughable. If the parties are ordered into mediation, they can’t storm out. They’ll be held in contempt. Even if it’s not court-ordered, they usually have a minimum fee they’re paying the mediator – usually 2 – 4 hours. Clients like to get their money’s worth and will stick around for their minimum prepaid amount of time. Yeah, yeah, it’s probably visually boring to have the parties sit around a table. But a decent writer can liven it up. The two sides can break into caucuses, take smoke or lunch breaks and run into each other, whatever the camera needs to improve the visual without going stupid.

The mediator won’t refer to one side as their client. The mediator is neutral. They can’t represent one side or the other. Their firm can’t represent either side. They have to disclose any relationships with the parties or their attorneys to both sides and anyone can object if they believe the mediator won’t be neutral. The Good Wife didn’t do this, but they do it in Fairly Legal all the time. It makes me want to scream. Okay, sometimes it does make me scream.

Every trial lawyer in America knows when you get mediation wrong. So do all the mediators, all the judges, and every person who has participated in mediation. We’re talking millions of people who know when you get it wrong. Mediation can be interesting and it hasn’t been overdone like trials. Do use it in your stories, but do your research.

Saturday, March 5, 2011

The Suit Against Jimmy Carter: Why Writers And Publishers Should Be Up In Arms

I covered the suit filed against former President Jimmy Carter and Simon & Schuster regarding Carter’s 2006 book Palestine: Peace Not Apartheid a couple weeks ago on The Debriefer. Literary agent Peter Cox and I spoke about the dangers to writers and the publishing industry if the case succeeds. The more I think about this case, the more it bothers me, so it bears more analysis.

The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.

The New York Consumer Protection Act provides:

The term "false advertising" means advertising, including labeling, of a commodity, ... if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.

The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.

Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?

The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”

The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.

The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.


If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.

Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.

How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.

When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.

Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.

Danger Will Robinson. Here there be dragons.