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Monday, January 7, 2013

Hey Good Wife Writers: Mediation Is A Settlement Conference, Not A Hearing

I just finished watching Episode 11 of this season's Good Wife, called, "Boom De Yah Da." Where do I begin? The writers must be watching that idiotic show about "mediation," Fairly Legal for their research. They couldn't have been more off base if they tried.

First of all, our heroes get a "Notice of Mediation" ordering them to attend a mediation on short notice regarding their bankruptcy. Sure, mediators do sometimes issue notices. But that's about all they got right. While a court may order mediation between parties, nobody can unilaterally set a mediation. The parties agree to both the mediator and mediation date. If they agree on neither, the judge sets it. There's no such thing as a surprise mediation. Usually, a party issues the notice after both parties agree on a date, location, time and mediator.

But it gets worse.

The mediator arrives and calls herself an "empress." It is clear that she intends to conduct a hearing and make a ruling. That's not what a mediator does. A mediator is a facilitator. She is not a judge, an arbitrator, a hearing offer, or an empress. She is there to help parties to a legal dispute reach a voluntary settlement. She can't take testimony. She can't make an order.

I'm so sick of writers getting this wrong. Mediation is a great thing to write into a legal show or a story involving the law. The Wedding Singers was a comedy that started with the main characters conducting a mediation, and they did it right. It was a great introduction to the characters, funny but true to the law.

Why has Hollywood gone off the deep end about mediation? It's simple. If you want someone who isn't a judge make a ruling in your story, they can be several things, just not a mediator. Here are a few:

Court-appointed special master
: A special master is someone the judge appoints to make rulings on a specific matter. It might be discovery or a complex legal issue. That would have been perfect here.

Arbitrator: If the parties agree, the whole case can be ruled on by an arbitrator instead of a judge. It's a great process that saves time and money, and is not public. I doubt it would have worked here since the parties didn't agree and I've never heard of a bankruptcy arbitration. Arbitration can be forced on people like consumers and employees who signed an agreement in fine print they didn't read, and you can't appeal an arbitrator's ruling, so it's an excellent vehicle for a writer to use. It creates tension, drama, and gives finality to your story's outcome, unlike a judge's ruling, which can be appealed.

Hearing officer
: Some cases, usually minor ones like traffic matters, use hearing officers instead of judges. They can make rulings just like judges. It wouldn't have worked here.

Magistrate judges: Federal courts also have Magistrate Judges, appointed but not for life, who hear federal matters. They take some of the burden off the judges and can hear cases by agreement or by court order. That would definitely have worked here.

Why oh why can't writers be bothered to get this right? It really ticks me off since I'm a mediator. Any lawyer, party to a lawsuit, mediator, or judge who is familiar at all with mediation knows this wasn't even close to realistic.

C'mon, Good Wife writers. I know you can do better.


LeeAnneArt on twitter @leeanneart said...

Hi Donna,
I'm in Australia and our systems may be similar.
I and my co-defendant were subjected to a mediation in conditions that we describe as a "mini trial". I was so incensed that I discreetly blogged about it (discreetly because of course all details of the mediation are privileged). Our experience in context of Defamation might be typical or unusual we're not sure. The mediation was forced as a legally required condition, the parties in this dispute could never have come to an agreed solution for that to happen would have mean my partner and I accepting we were guiltily of defaming a person who has the aim to see us destroyed before we can get to trial. I argue that for this reason particularly in cases where it is obvious the camps clearly are not capable of coming to a negotiated settlement that mediation should not be forced and should be waived entirely. In our case the mediator appeared to be severely biased. We were on several occasions strongly advised to back down and accept the (utterly morally and rationally unacceptable) offer of the plaintiff or things could get much worse financially for us if we lose at trial. Our case and evidence being as strong as they are meant we were dumfounded by the nature and persistence of this coercion and attempts to scare us by the QC mediator. It was not a moment of endorsement of our legal system and some of its leading practitioners at all. That said I agree with your requirements for better writing in TGW! We are a season behind you and I'll look forward to this one with some ability to make personal comparison. :)

Computer Performance Analyst said...

I couldn't agree more. I just watched the episode and as a mediator who also does court-orered mediation, I am appalled. Moreover, it is inherently contradictory. The mediator repeatedly asks to be called 'ma'am', which is preposterous, yet has a gavel? Even arbitrators don't have gavels. Only judges do. And while mediators can be evaluative and do reality checks, they should not force parties into an agreement as in the comment.

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