Tuesday, January 22, 2019
Winning Through Mediation
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Wednesday, January 9, 2019
 

STORY AND PHOTO BY KAREN BOSSICK

Judith Meyer likes to think that she brings peace into the room.

As a longtime lawyer, she has dealt with plenty of hand-wringing and chaos, name calling and push back.

But she has chosen the path of mediation, rather than litigation. And it’s a path, she says, that generally leaves both sides feeling that they’ve come out on top.

 “Litigation is fun for lawyers but it’s painful for clients--like having open heart surgery,” she said. “They spend their time holding their breath wondering when it will be over. Emotionally, trials are very costly. They break up marriages. They cause physical stress and physical disorders—it can be like having a root canal.”

Ninety-eight percent of lawsuits settle, she added, but typically only after two years of litigation and hundreds and thousands of dollars in lawyer fees.

Mediation, by contrast, is process where a neutral third party assists disputing parties in resolving conflict through the use of negotiation techniques.

“I wanted to find a better way to help people. And this is it. And when we find the solution—Yay!” said Meyer, who taught classes about mediation at Cornell University for 14 years.

Meyer was a young Los Angeles trial lawyer dealing with real estate disputes when she became involved in a case involving the 1980 MGM Grand fire in Las Vegas that killed 85 people, most through toxic fumes and smoke inhalation. The fire broke out in The Deli, caused by an electrical ground fault inside a wall socket. It spread by fireball to the lobby, its speed fueled by wallpaper, PVC piping, glue and plastic mirrors

The hotel sued everybody, including the electrical contractor, said Meyer. And lawyers spent years doing discovery getting ready for trial—discovery for which the law firms were making $20,000 a month. But on the morning of the trial, Meyer arrived in Las Vegas to find out that the case had been settled.

It turned out that the president of MGM and the CEO of the electrical company had struck up a conversation with the defense attorney  over martinis at a cocktail party. And they struck a deal.

“A light bulb went on in my head,” Meyer said. “I’m not supposed to solve the problem. It’s the client who is supposed to solve the problem. “Since then, my passion has become my profession.”

As a trial lawyer, Meyer said she witnessed how people involved in litigation were frequently angry with the results even when they won because no one ever advised them of the risks and possible consequences.

Going through litigation can have unwitting consequences, Meyer said. Just look at doctors who are sued for malpractice. Even when they’re not liable, going to trial can lead to malpractice as they get so anxious that they don’t sleep, they’re tired and they make mistakes.

“One day I realized I was having a great time and my clients were not,” she said. “It was not because I wasn’t a great lawyer. Rather, it was because of what my clients had to go through, even when they came out on the winning side.”

Meyer recounted the case of a rising executive at an energy company who was sent to secure a nuclear contract. When the senior executive hit on her during the course, she complained to her superiors.

She was demoted during her next job review, and the senior executive said he got the job contract despite her. That prompted her to sue the company for sexual harassment.

Problem is, even with a win, no one will hire her because she sued the company. So her career is ruined, Meyer said.

“Sure she had every right to take the case to court. But does she really want to be out looking for a job the next seven years?” Meyer asked.

The alternative is going to mediation.

“Her superior might say, ‘I’m sorry. I messed up.’ Or, ‘Yes, I was playing games with her.’ And then we might say, ‘Not so cool, right?’ Then we’d say to her, ‘He messed up and he admits it. How about if he takes harassment classes? How about we dock his salary? How about we move him to a different department so he’s no longer your superior?’

“With mediation, both careers are salvaged,” she concluded.

Meyer told of another case of a painting job went wrong. The city of Philadelphia was going to file a lawsuit but instead agreed to a mediated agreement in which the contractor agreed to redo the work. It cost the contractor extra money. But they would have been paying attorney fees had they gone to court. The agreement spared the city having to pay attorney fees and its building did not have to sit unused   while the case was tied up in court.

“So something went wrong! Why don’t we sit down and figure out what went wrong and fix it with a lawyer like myself in the room to help?!” Meyer said. “Most clients really want problem solving, not problem exacerbating.”

Meyer acknowledged that today’s system of litigation is certainly better than the Middle Ages’ trials by hot coals.

“But, while litigation is a wonderful game of chess, playing it is very expensive,” she said. “It’s like a kid on a playground punching someone in the nose only to have them punch back. We should hang a sign on the door: Before you file your lawsuit please stop in and let’s talk. Mediators can preview what litigation will look like and lay out the options.”

There are never guarantees that someone will win a case in litigation, even when it would appear to be a slam dunk on the surface, Meyer said.  

“For instance, in a product defect case, if I sell you zippers that are defective, I can hire experts to show you that those zippers are fine, even as you’re hiring experts to say they’re not. All you end up with is a battle of the experts.”

“Under meditation, I might say, instead, ‘Sorry about these dresses. Why don’t I sell you the next batch at cost?’ ”

 “Litigation is always backwards looking. It has nothing to do with ‘What do you want tomorrow to look like?’ ”

Since immersing herself in mediation, Meyer has served on panels for the American Arbitration Association, as mediator and arbitrator for the American Health Lawyers Association, as a panelist for the National Academy of Distinguished Neutral, as mediator for cases concerning U.S. International Trade Commission, the USA Track and Field Olympic Trials Doping Grievances Panel and U.S-China Business Conciliation Center and countless others organizations.

She’s mediated embezzlement cases, a dispute over ownership of a concept, web graphics and code created by an employee of a not-for-profit while on leave of absence, patent infringement, misappropriation of trade secrets, unfair business practices , environmental claims, a dispute between contractors of a Marriott Hotel and many, many others.

And her work has garnered her a multitude of awards, including the Sir Francis Bacon Award bestowed by the Pennsylvania Bar Association for Excellence in Mediation, Best Lawyers in America and Best Women-Owned Businesses.

And she remains passionate about mediation.

“It’s so satisfying to take a case and resolve it. It’s a huge for me.”

WANT TO LEARN MORE ABOUT MEDIATION?

Contact Judith Meyer at www.judith@judithmeyer.com or call 208-726-6800.

 

 

 

 

 

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