"When in doubt, tell the truth." --Mark Twain
Stories from the "People's Court"
(General Sessions Civil Court)
page 1 2 3 4 5
From Sam Fowler, Esq.
(Originally written for DICTA, the newsletter of the Knoxville Bar Association)
The Incompetent Employee
The plaintiff sued to recover $5,000 loaned to the defendant on an agreement that was not prepared by a lawyer. The defendant explained that she operated a business in the area where the plaintiff lived, and she had become friends with the plaintiff's daughter. The daughter was looking for a job, and the defendant needed a loan, so the defendant and the daughter worded a written agreement whereby the daughter would work for the defendant and the plaintiff would loan the defendant $5,000. The agreement stated that the daughter was a good employee and that the $5,000 would be considered a down payment on the purchase of 25% interest in the business based on the value of the business on the date of the contract. If the daughter ceased being an employee, the $5,000 would be paid back to the plaintiff.
In mediation, the defendant started her story by saying that she had fired the daughter because she was completely incompetent! The plaintiff interrupted and said that her daughter was not incompetent; rather, the defendant was! A co-mediator interrupted at that point and asked if the daughter should be present, even though she was not a party to the suit and had no obligation to for the $5,000. After a discussion, the parties agreed that the daughter did not have a stake in the outcome of the mediation, neither party wanted her there, and neither wanted to postpone the mediation in order to invite her in.
After this discussion (which incidentally illustrates that the mediators need to be sensitive to the fact that the parties to a lawsuit may not include all the parties who might be essential to a good mediation growing out of a lawsuit), the defendant launched into a long tirade about the daughter, who she reiterated was a completely incompetent employee. She felt she was doing the plaintiff and her daughter a big favor by employing her. She had paid the daughter every penny she was due as an employee. The daughter almost ruined the business, etc. While this emotional outpouring was going on, plaintiff kept saying, "This is all completely irrelevent, the agreement says you owe me me $5,000." The question comes up in many mediations as to how much one of the parties will be allowed to vent their anger and frustration, and to whom will they vent---the other party or in a private session with the mediators.
As to whom will they vent---each other, the mediators---it is a tricky call for a mediator. Normally, a certain amount of venting in front of the other party is good. For you who have had any psychology, you will know that one of the best ways to relieve the stress of anger and frustration is to allow the person to "talk it out" and tell their story, full of emotion. Likewise, it is good for the other party to the controversy to hear the emotional reaction to something they may have caused, even though it was done unintentionally. The mediator must have an instinct about how much is too much, because too much venting may "turn off" the listening combatant, and they may harden their unwillingness to negotiate and cooperate. In this situation, the mediator should continue with a separate session until the mediator believes that the venting party is ready to consider rational alternatives to a resolution of the dispute, as well as her best interests for the future.
Aside from expressing emotions, the question often comes up as to what is relevant to the mediation. Relevance in a mediation is quite different from trial (or even discovery), where rules of evidence govern what is relevant. In mediation, anything is relevant if its disclosure helps either party to come to a conclusion that they will work cooperatively to find a solution, or if it leads to a solution all parties can agree on.
In today's mediation, the mediators allowed the defendant to have her say in the presence of the plaintiff. Simply allowing the defendant to explain led to a successful resolution, as evidenced by the following remarks:
Mediator: "Do you feel better now?"
Defendant: "I really do!"
Mediator: "Do you still owe the $5,000?"
Defendant: "It's going to be hard, but I intend to pay every penny."After hearing the defendant's full story, the plaintiff was lenient in the payback terms, the agreement was written up, and the matter was settled.
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