It is taxing to transition from a weekend in a deer stand to being back in the office. One has an uncomfortable seat with long boring lulls and the phone rings at inopportune times. The other is a deer stand.
I spent opening day of deer season in the woods and came back to work a little depressed. I didn’t see any deer at all but it was relaxing and I got to read a book without being bothered. It is hard to be preoccupied with work problems at my cabin. I was surprised to see Stu Tomas asleep on my office couch when I got to the office.
“Stu! What are you doing here?” I asked.
“I was napping till you walked in. Sounded like a herd of elephants at a disco,” he snorted. Stu was not much of a morning person and he seemed crabbier than usual. For a semi-professional grumpy old man, that took some doing.
“I knew you would be hunting this weekend so I was hiding out here this morning. I didn’t expect you back so soon.”
“Me either,” I replied. “But I have a mediation next week and need to get to work on my mediation memo.”
“Your what?” he asked as though he was genuinely interested.
“Mediation memo. My confidential letter to the mediator. I review the file and outline the pertinent points. At least what I think is pertinent. And then he or she charges me to read it. It is a racket baked on top of a racket,” I told him.
“I thought you mediated cases to keep from doing work on them.”
He was right of course. If I wanted to spend long hours poring over a file, I would just as soon take it to trial. Unfortunately, mediation has almost become mandatory these days. Most courts order mediation when they assign a trial date. Not coincidentally, many if not most cases settle and the trial dates free up. Trials are scarce. Kind of like the deer this week.
Mediators are typically old lawyers or retired judges. Whether they are trying to supplement their retirement income or just get out of the house is debatable. I don’t see myself becoming a mediator. Dealing with unreasonable litigants and their lawyers is taxing enough when one of the parties is my client and I have to do it. I can’t fathom doing it when I have even less interest in the litigation.
“I am as lazy as the next guy. Maybe lazier depending on who the next guy is,” I said.
“Then why bother with mediation memos? Your opponent knows the case, so it isn’t for them. The mediator is trying to broker a deal, not decide the issues, so the memo isn’t for that person either.”
“I used to think that too. Turns out the best mediators like to know the case facts so they can determine what the case is worth. Having a disinterested third party comment on the merits of the case is a pretty good way to convince people that they should settle.”
Stu grinned at that.
“I have been disinterested in hearing about your cases for years. I can’t believe that you pay big bucks to have a mediator do it when I do it for free over a beverage.”
“The difference is that the mediator is trying to help. You feign interest for twenty minutes and then stick me with the check.”
He winced a bit but didn’t try to deny it. I went on.
“I will admit that occasionally in the past I learned a thing or two about my case at mediation. In retrospect, I tend to do a lot better for my clients when there aren’t any surprises at mediation. At least, no surprises for my side.”
Stu seemed satisfied with that.
“You do your memo. I’m going to finish my nap and we can grab lunch afterwards. I’ll even listen to you prattle on about your case if you buy. Try to keep it down over there if you don’t mind.”
Suddenly I missed the deer stand. I may not have seen any game but it was peaceful out there. The snores coming from the other side of my office were anything but peaceful.
©2024 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He practices law to supplement his hunting habit. Comments or criticisms about this column may be sent c/o this publication or directly to him via email at farris@farrislaw.net.