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AZ court ordered mediation question


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Part of the process during my last case was participating in court ordered mediation. This is designed to be an opportunity for the opposing parties to settle their differences without going to trial. 

 

It was during this process that the plaintiff attained an MSJ. Our situation was a bit unusual, as we agreed to continue mediation after the first session and the plaintiff went for MSJ latter in the process.

 

Question: Does the AZ court require one mediation session before the rest of the case moves forward?

 

I ask from the perspective of settlement negotiations. If a defendant walks into mediation with a checkbook and the ability to articulate a well thought out defense, might that place the plaintiff in a position of weakness? I can see this being quite effective against a rent-a-lawyer who has to phone HQ saying "they know more than I do and the mediator seems to agree - should I take the check?"

 

 

Thanks!

 

 

 

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Preliminary Considerations

Despite its many benefits, ADR may not be appropriate in all cases. As a general matter, the following situations should be seriously considered before using ADR as an alternative to litigation:

Where one party uses intimidation or refuses to share information

Where a party is too afraid to negotiate assertively

Where a party wants to continue to litigate

Where a party wants to establish a judicial precedent

Where there is recent or continuing domestic abuse or violence involving the parties

Where one or both parties are not mentally competent to understand the issues and negotiate assertively

When one or both parties are impaired by alcohol or substance abuse and cannot effectively negotiate

When the disposition of the participating attorneys is one of hostility and/ or incompatibility

 

A typical debt collection attorney's profile would seem to preclude the "many benefits" alleged to be gained in ADR.

 

I have not been through court ordered mediation (only court connected arbitration) and am not sure under what circumstances the court would order it. I would doubt there is any significant leverage to be gained by presenting a brilliant argument in non-binding mediation. The mediator does not make binding decisions AFAIK. I have no idea why a mediation would be a likely advantage to the alleged debtor. Perhaps if the alleged debtor could not negotiate a settlement by writing a check without the presence of a mediator.

 

If accepting a check is a sign of weakness I think I just might want to be a "weak" party. :-)

 

I prefer a real court of law with an appealable forum to resolve disputes. YMMV

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This is different than ADR. From the AZ Bar website:

 

"Mandatory Mediation
Many of the Justice Courts in Arizona require the mediation of small claim lawsuits before the suit is ever allowed to be heard by the judge."
 
I'm just asking if that means the brakes are put on further litigation until mediation, if required, takes place. I'm making no secret of my willingness to settle for the right price - if the plaintiff has to sit in front of a mediator and explain why he won't take my check for orders of magnitude over what he paid for it, I'm fine with that.
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This is different than ADR. From the AZ Bar website:

 

"Mandatory Mediation
Many of the Justice Courts in Arizona require the mediation of small claim lawsuits before the suit is ever allowed to be heard by the judge."
 
I'm just asking if that means the brakes are put on further litigation until mediation, if required, takes place. I'm making no secret of my willingness to settle for the right price - if the plaintiff has to sit in front of a mediator and explain why he won't take my check for orders of magnitude over what he paid for it, I'm fine with that.

 

 

The mediator won't care. I've had mediations take 2 mins when me or the other party made it clear we weren't settling and just showed up so we could check the box that we tried. I've had success when the mediator tries to mediate so both sides can see how it can be better to settle (cheaper, faster, less risk). Court staff mediators are of limited use and just ask each side to bend or if they have an offer. A lawyer playing mediator is usually better because they can explain the risks/weakness of a side's case and encourage them to bend. I had one sit with me for 15 mins to chat because he wanted it to look like he was really working on me before going back to tell the other side they had no case and should take the low amount. It was cheaper for me to write a check for $X than drag it out and possibly lose in court, even though I had a good case.

 

The mediator will not rule on anything. Making your case to the mediator and the other side just gives the other side info they can use to beat you. If it is court ordered they will just send in a sheet of paper that says mediation was attempted but unsuccessful, or they will write up the agreement if you actually succeed. I would always try mediation first if they were paying a lawyer and I was not. No harm in showing up and wasting their time. I would be very careful in what I said about the case itself though during mediation, this should be considered the same as talking to their lawyer. I would just repeat, "their case sucks, I have no doubt I will win, but I will pay $X to make it go away to avoid the hassle".

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 A lawyer playing mediator is usually better because they can explain the risks/weakness of a side's case and encourage them to bend. I had one sit with me for 15 mins to chat because he wanted it to look like he was really working on me before going back to tell the other side they had no case and should take the low amount. It was cheaper for me to write a check for $X than drag it out and possibly lose in court, even though I had a good case.

 

 

 

That's an ideal scenario - very nice.

 

I had two law students conduct our first session, while the senior partner of the plaintiff's law firm phoned in - clearly nothing was going to get done. For the second session, though, they sent a kid with no knowledge of our case who actually admitted he knew nothing about collections law - he was doing it for experience. Unfortunately no mediators were available.

 

My plan, for future cases, is to attend mediation and try to reach settlement at or below my lawyer's fee. If that doesn't work, I'm handing off the case, anyway. Since mediation is a required step I don't see where I am putting the case in jeopardy.

 

I'm all ears if this is a flawed approach. 

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That's an ideal scenario - very nice.

 

I had two law students conduct our first session, while the senior partner of the plaintiff's law firm phoned in - clearly nothing was going to get done. For the second session, though, they sent a kid with no knowledge of our case who actually admitted he knew nothing about collections law - he was doing it for experience. Unfortunately no mediators were available.

 

My plan, for future cases, is to attend mediation and try to reach settlement at or below my lawyer's fee. If that doesn't work, I'm handing off the case, anyway. Since mediation is a required step I don't see where I am putting the case in jeopardy.

 

I'm all ears if this is a flawed approach. 

 

The only potential flaw that I see is that stuff that gets stated during mediation sometimes finds its way into the record for the judge. It is not supposed to happen, but just be aware of it. However, if you are going with a lawyer later then you can always claim that something you don't agree with now is because you've retained counsel and been advised differently.

 

My first goal would be to settle quickly and efficiently at the mediation.

My second goal would be to learn as much as possible about their strategy and evidence so I could use it against them if I was not able to settle.

I would have NO goal of trying to impress the mediator with my case. They have no power to do anything as they are not judges or arbitrators.

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That's an ideal scenario - very nice.

 

I had two law students conduct our first session, while the senior partner of the plaintiff's law firm phoned in - clearly nothing was going to get done. For the second session, though, they sent a kid with no knowledge of our case who actually admitted he knew nothing about collections law - he was doing it for experience. Unfortunately no mediators were available.

 

My plan, for future cases, is to attend mediation and try to reach settlement at or below my lawyer's fee. If that doesn't work, I'm handing off the case, anyway. Since mediation is a required step I don't see where I am putting the case in jeopardy.

 

I'm all ears if this is a flawed approach. 

 

Oh, one thing stuck out for me here. The participants must have the authority to settle or it could be considered bad faith on their part. I would have raised that about the kid that showed up knowing nothing about the case nor the law.

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I wan't thinking in terms of impressing the mediator - rather using the forum to try for a quick settlement, with the potential by-product that, if word gets to the judge, that word is that the defendant took mediation very seriously and tried to avoid further litigation.

 

Sounds like we are on the same page and you answered my question about where mediation fits in the process. Thank you!

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Oh, one thing stuck out for me here. The participants must have the authority to settle or it could be considered bad faith on their part. I would have raised that about the kid that showed up knowing nothing about the case nor the law.

 

Interesting... Because the kid asked what we would settle for but I can't believe he had the authority. I believe at that time they were already pushing through their MSJ. It was those shenanigans that helped my lawyer clean up the mess that I had created with my ignorance.

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...

I would have NO goal of trying to impress the mediator with my case. They have no power to do anything as they are not judges or arbitrators.

I have no goal to impress a trial court judge. My job is to control them with a proper trial court record and appeal if they refuse to be controlled by the record in their court.

 

I am not likely to intimidate a trial court judge but those appeal judges can be pretty convincing when the trial court judge's reversible error has their undivided attention.

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