Upon further reflection (and getting a lesson on Contracts 101), I must confess I have some additional problems with the Court of Appeals nonpublished decision in Sullivan v. Anderson rendered Apr. 20, 2007 which is an example of bad facts, bad reasoning, and bad law. See, COA affirms trial court's award of mediation fees for party failing to attend (NPO COA Decision).
Although I believe there should be some sanctions regarding behavioral issues in mediation which are objective and do not go to the privileged and evidentiary aspects of the mediation, the Sullivan case should not serve as the "poster child" for this point since there never was an "agreement" to mediate in the first place. Once there is an agreement (be it mutual or court-ordered), then the parties, counsel, and adjuster with settlement authority present and available and not by telephone.
In Sullivan v. Anderson, a pro se plaintiff was facing an insurance defense lawyer representing the defendant. As most lawyers have experienced, it is much easier to try a case against a competent, qualified, and professional attorney, and when the other side is representing themselves pro se and are not an attorney, then it can get real difficult. There is a reason lawyers spend seven years in college and law school, plus pass a difficult bar examination, for the honor and privilege of practicing in this profession. Not to mention years of practice honing their craft in and out of courtrooms.
The pro se non-lawyer litigant is in a legal minefield of deadlines, traps, and other rules which can sink his case, even with some judges who have even bent over backwards to balance the playing field.
However, in Sullivan, things went awry when a trial judge holds a pro se litigant liable for costs of a mediator attending a mediation that the pro se litigant had not even agreed to!
Here are the facts per the COA opinion:
At the pretrial conference in the matter, the trial court recommended that the parties mediate. To that end, Anderson attempted to arrange a mediation; Sullivan agreed that he would mediate only under certain conditions, including that the mediator be Tom Knopf. Anderson's attorney thereafter wrote Sullivan, indicating that Knopf was not available to mediate until after the parties' cheduled trial date but that he had scheduled mediation with another mediator on January 5. As Sullivan neither attended the mediation nor informed Anderson that he objected to mediation or would not attend, Anderson moved the court to award her the costs she incurred as a result of the canceled mediation, as well as the mediator's costs.
Here is an extract from the COA opinion authored by Judge Vanmeter and with Chief Judge Combs and Judge Dixon in agreement:
We [COA] agree with Sullivan and the trial court that Sullivan was not obligated to attend the mediation since it was not ordered by the court. However, Anderson [other party] did not have any reason to know that the parties had not agreed on mediation since Sullivan did not inform her that he did not agree to the arranged mediator and mediation date.
The fallacy in Judge Vanmeter's reasoning is that in the absence of an acceptance or some proof of the existence of an agreement, then what was it that Anderson based her reason that the parties HAD AGREED to mediation?
An unanswered or ignored letter announcing mediation does and an ex parte selection of your mediation do not an agreement make; nor is there an acceptance upon deviation of the terms of an offer.
Sullivan had agreed to mediation with Tom Knopf; another mediator by any other name is not Tom Knopf (in will not smell as sweet to Sullivan). Thus no agreement, no meeting of the minds, and no acceptance of the terms of the mediation.
Interestingly enough, another panel of our Court of Appeals took a stricter interpretation of the fine art of communication in Malone v. KFBM within the context of a "Coots" notice under KRS 304.39-320 regarding a claimant's intent to accept an offer of the tortfeasor's liability limits requiring the notice to the underinsured motorist carrier indicate acceptance or intent to accept the liability limits offer. Failure to so indicate meant failure to comply with the staturory procedures which resulted in the claimant losing his UIM claim. [The Malone case is mentioned by way of example, and not by way of agreement with its reasoning.]
Although I can appreciate the travails of defense counsel and acknowledge the use of the inherent power of the court to impose sanctions for bad faith mediation, this is not a case worthy of sanctions. The risk of a "no show" in the face of a "no agreement" was borne by the wrong litigant.
In looking at this decision, I am reminded of the three blind men examining an elephant and reaching three different conclusions based upon their respective examinations of the trunk, tail, and ears. Based upon your position, you can see in it whatever you want. However, does any counsel honestly suspect that this incident without a "fer sure" confirmation among all counsel involved would have occurred in an attorney-represented case?
I suspect more is involved in this case, but the facts reported by the COA are the facts which supported their decision to affirm the trial court.
Thanks to Vickie Pynchon in Beverly Hills of the "Settle it Now" Negotiation Law Blog who picked up my earlier bad faith mediation post and ran with it - "Sanctions for 'Bad Faith' Failure to Attend Mediation". And another interesting post entitled "State and Federal Mediation Protections in 'Bad Faith'".