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.
Showing posts with label mediation. Show all posts
Showing posts with label mediation. Show all posts
Monday, January 7, 2013
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.
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.
Sunday, January 23, 2011
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 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.
Subscribe to:
Posts (Atom)