By H. John Rogers, Esquire
Unlike the distinguished former youngest appellate judge in the English-speaking world, I am a firm proponent of mediation. The hardest thing in my practice (80% personal injury and criminal defense) is usually getting the other side to talk Meleagridae.
Although I join with former Justice Neely in railing against corporate and insurance counsel because they are on the meter, the simple fact is that my "rush to judgment" is as economically driven. As a rule, the quicker any case of mine is resolved the greater my net.
As a plaintiffs attorney I have certainly done my share of grousing about defense counsel who ape the negotiating style of Sir Henry Bulwer. As the representative of the Crown in the "glory days" of the British Empire, Sir Henry could, of course, be a little imperious with his one-and-only, take-it-or-leave-it offer. ("Bulwerismm" later became a noun in the U.S. during early labor negotiations and is now an unfair labor practice.)
As a regular mediator, I occasionally am the recipient of am hauteur from a defendant's attorney worthy of Lady Astor dealing with a fishmonger. "My client does not deign to barter" is the basic text, with the subtext being "I'll wait until the pre-trial conference to make nice in front of the judge. " (Plaintiff s counsel tend on occasion to be a little patronizing, sometimes making me think that they view mediation as an opportunity to polish up their opening statement.)
At a recent mediation session in Wheeling, I told the parties that if they didnl want to even discuss settlement they should have written the judge and told him so, rather than wasting my time.
The case involved a business dispute. Prior to the mediation, the defendant had requested a demand figure. The plaintiff responded with a sum that was about 95% of the relief requested in the complaint. Early in the session, defense counsel told me that he had a "negative counter-proposal" based on his counterclaim. Since it was soon obvious that both parties wanted to remain in their respective bunkers, I soon bid them farewell.
I really don't know what to do about the "stubborn equine" situations (You know, the ones you can lead to water, etc.) As a mediator, I would like to attach a nasty little note to the court file, but the theorists say that this is inimical to the basic concept. Mediation, I suppose, is a first cousin to the drug and alcohol rehabilitation program. If the person doesn't want to quit, a 10 year stint at the Betty Ford Clinic with Liz Taylor as the "sponsor" isn't going to produce any change.
Some techniques though could bear some further study. Recently during the "Settlement Week" mediations in Kanawha County, I had a brief chat with Jay West, who with Mike Aloi of Fairmont has been in the vanguard of the movement.
Jay told me that Joe Albright of Parkersburg was one of the most effective mediators that he had observed. "Joe keeps right after them," Jay said, "until they reach an agreement". I made a mental note to speak with he former Justice about this the next time I saw him.
Driving back home my mind started to drift back to the early 1950's. After my father was discharged from the army in 1945, he had a furniture store in Reader, a small town in the rural outback of Wetzel County. Twice we had auctions: The first was when he was recalled for active duty at the beginning of the Korean War and the second when he went broke a few years later.
The auctions were very festive occasions and drew large crowds. The imported auctioneer was a very charismatic man who was able to quickly separate the rural crowd from the few dollars they had with his patter. I can clearly remember his spiel, although this was almost 50 years ago.
"Who'll give me a dollar, who'll give me a dollar, who'll give me a dollar", the auctioneer would chant. On occasion he would take it down as low as a nickel. However, the auctioneer always knew exactly when to drop one item and move on to another. Although he never said so in so many words, I suspect my father may have made as much off each of these auctions as he did during a year of regular business dealings.
The auctioneer was Jinx Albright, Joe's father. Having spent several evenings watching the master at work, I think I have a fair idea of at least part of the source of the son's mediating skills. Joe has told me that he frequently traveled with his father to the auctions.
About the Author: Mr. Rogers is an attorney from New Martinsville and a member of the State Bar’s Board of Governors.