Maine law, in most civil cases, requires an Alternative Dispute Resolution which is known as an "ADR". I'm a big fan of the ADR, as I do well and truly believe that it does help un-clog our horribly clogged court-system. But even more so, I believe that the ADR process is helpful because it is my fundamental belief that adversaries, sitting at a table together, can most often find more areas of common good than areas of disagreement.
I am a student of William Ury-------quite literally; he is the founder of the Harvard Program on Negotiations, and I have taken his classes. I am a true believer in the power of adversaries sitting down together, and finding common ground.
I have now been through 3 ADRs with various McCuskers, and my belief in mediation remains unshaken (mostly). I do however realize that that it's not just the attitude of those coming into the ADR, but also the attitude and style of the mediator that so strongly affects the outcome.
My first ADR was with Steve. This was required because I had filed----pretty much at his request, given his statements to Judge Moskowitz in his counterfactual complaint for "harassment" against me, which he now states he did solely to keep the peace with his wife-----I'd filed a Breach of Contract lawsuit against him.
ADRs are confidential, and thus I cannot disclose the content of the ADRs. I shall thus only very generally discuss the style of the mediators, and how I believe that affects outcomes. The moral of these stories should be, choose your mediator carefully, with an eye for the style that works best not just for you but for BOTH parties------if we are truly attempting to reach agreement, a mediator's style that works best for only one party is not a great idea.
During the first mediation, Steve and I used Chris Drinan, for whom I have the utmost respect. Both Steve and I were represented by counsel-------I would not have paid for counsel for myself but Steve's crazy Protection Order was still in effect so I didn't dare do otherwise. And of course Steve was going to have to pay for my counsel anyway....not one of his better judgments, but so it goes. In the end, although we all appeared (Steve, his attorney Brandt, my attorney Cyr, and me), it is public record that there was no agreement----and no negotiation at all----because Steve stated he was about to file bankruptcy and thus the Breach of Contract lawsuit would be moot (though he didn't actually file for bankruptcy until many months later when we were practically on the courthouse steps----literally TWO DAYS prior to the scheduled trial on his Breach of Contract. Again, he gets to pay now multiple thousands of dollars for my lawyer having to prep for the trial. Like a lot of this sad story of friendship betrayed, much attention should be paid to Steve's poor judgment time after time------which he attributes, correctly in my opinion, to advice from his wife Liz McCusker).
My second ADR took place with Liz McCusker. This was on the defamation lawsuit against her. The lawsuit was filed solely against her; not against Steve (because I did not know at the time that Steve was also involved in the serious defamation against me).
Liz did not understand the court process (including the ADR requirement; it took forever back-and-forth emails to get her to agree to what the court was requiring). However we finally settled on Chris Causey as a mediator, who really was great. Steve showed up in Mr. Causey's office with Liz, and Mr. Causey asked me if I would allow Steve to sit in on the mediation. I probably shouldn't have, because I think his presence muddied the waters. However I was willing to do so, because I wanted Liz to feel comfortable. You know, I am supposedly some ogre who not only hates her but wants to marry her husband. But my actions with Liz have consistently shown me to be respectful towards her; and in the vast majority of times, patient and tolerant of her putative illness.
Ultimately we did not reach resolution, but Mr. Causey really did his best.
My third ADR took place before Robert Crowley. This was the ADR for the defamation perpetrated by both Liz McCusker and Steve McCusker. Because it was clear that I would win the defamation case on the merits, at the point that we were seeing Mr. Crowley I was perfectly willing to go to court. I would win, because both McCuskers had already admitted their guilt, under oath in their Depositions. Even Crowley agreed to that. So to me it was just a matter of how much of my time I felt like spending on the matter anymore.
It is thus my opinion that Robert Crowley was the worst mediator (here in Maine known as a "Neutral") I'd ever encountered. For starters, he told the three of us that during the process he would try to "scare" each of us into settlement. I believe his point was that he would try to make each of us understand the downsides of continuing to proceed through the court system. But he used that word "scare" (which I had heard from several attorneys who had mediations before Robert Crowley is what he always says). Does that sound helpful? He's no William Ury.
And the fact of the matter was, I knew I was going to win, it was just a matter of how much. The McCuskers had admitted their guilt in their depositions. Again I cannot disclose specifics, but suffice it to say that say that I was not disabused of this understanding by Crowley. So I told him right away, there was nothing that could actually "scare" me, since for me there was no down-side other than my own time.
All I wanted was some punishment that would make the McCuskers understand that the society we live in does not allow them to just make up lies about another person and laugh about it.
Crowley had us both in the same room to lay out the parameters of the negotiation, then separated us.
Typical of McCusker-thinking, they first suggested that I pay THEM $5000!!!!! Now, other negotiators I'd dealt with would have told the McCuskers "You have already lost this lawsuit" and suggested they get real on negotiations. The fact that Crowley even brought that stupid, stupid suggestion of the McCuskers' to me was a waste of time. I said to Crowley, "if that's what we are going to do here, I am leaving" and I actually packed up my stuff. We instead were there all day, and should not have been, but for stupid proposals like that. The McCuskers were obviously pretty idiotic for suggesting it; but we were paying Crowley literally thousands of dollars to mediate proposals----which for our thousands of dollars should have included a statement like, "hey, McCuskers, don't be idiots.....why would she agree to that proposal?"
A good example of better negotiations: During Steve's bankruptcy, Federal Judge Kornreich mediated a settlement between me and Steve. During those 4 hours of negotiations, Judge Kornreich told me (and my counsel) that he did not even bring in to us proposals by Steve and Steve's attorney Brandt that Judge Kornreich felt were "unfair and unreasonable".
Isn't that a better way of conducting ourselves?
I have no doubt that the idea of me paying the McCuskers $5000 for the privilege of having been defamed by them came from Liz. I had quite a bit of experience with her during her Depositions (which because of her weird answers ended up lasting what seemed to be forever----what took forever were things like when asked "is your son's name Martin Caron?" she'd say, "I don't know", and so I'd have to ask her, "You don't know your son's name?' etc etc etc). Thus it is my opinion that she really does not understand defamation and the fact that what she did to me was unlawful.
As I may not comment on specifics, be advised that Crowley wore me down, and I am guessing wore down the McCuskers too. This is not Justice at its best; this is not the way the judicial system is supposed to work.
To ALL negotiators (Neutrals) I do suggest the Ury model: Unless the people involved are going to cross the table with swords and attempt to kill each other, what is wrong with keeping them at the table? I always do better the longer I can stay with my adversaries and find common ground....together.
One of Crowley's last pieces of "advice" to Steve McCusker and me was that we would never be able to even be friendly towards one another. In fact, we saw each other for coffee less than one month after the ADR, and many times since. And Steve and I have reached our best compromises when we sit together and work it out. I'm not saying we are perfect at doing so, but it's loads better than $1500/day to sit in separate rooms whilst some guy (judge though he may have been) walks in and out with crazy proposals.
I am a student of William Ury-------quite literally; he is the founder of the Harvard Program on Negotiations, and I have taken his classes. I am a true believer in the power of adversaries sitting down together, and finding common ground.
I have now been through 3 ADRs with various McCuskers, and my belief in mediation remains unshaken (mostly). I do however realize that that it's not just the attitude of those coming into the ADR, but also the attitude and style of the mediator that so strongly affects the outcome.
My first ADR was with Steve. This was required because I had filed----pretty much at his request, given his statements to Judge Moskowitz in his counterfactual complaint for "harassment" against me, which he now states he did solely to keep the peace with his wife-----I'd filed a Breach of Contract lawsuit against him.
ADRs are confidential, and thus I cannot disclose the content of the ADRs. I shall thus only very generally discuss the style of the mediators, and how I believe that affects outcomes. The moral of these stories should be, choose your mediator carefully, with an eye for the style that works best not just for you but for BOTH parties------if we are truly attempting to reach agreement, a mediator's style that works best for only one party is not a great idea.
During the first mediation, Steve and I used Chris Drinan, for whom I have the utmost respect. Both Steve and I were represented by counsel-------I would not have paid for counsel for myself but Steve's crazy Protection Order was still in effect so I didn't dare do otherwise. And of course Steve was going to have to pay for my counsel anyway....not one of his better judgments, but so it goes. In the end, although we all appeared (Steve, his attorney Brandt, my attorney Cyr, and me), it is public record that there was no agreement----and no negotiation at all----because Steve stated he was about to file bankruptcy and thus the Breach of Contract lawsuit would be moot (though he didn't actually file for bankruptcy until many months later when we were practically on the courthouse steps----literally TWO DAYS prior to the scheduled trial on his Breach of Contract. Again, he gets to pay now multiple thousands of dollars for my lawyer having to prep for the trial. Like a lot of this sad story of friendship betrayed, much attention should be paid to Steve's poor judgment time after time------which he attributes, correctly in my opinion, to advice from his wife Liz McCusker).
My second ADR took place with Liz McCusker. This was on the defamation lawsuit against her. The lawsuit was filed solely against her; not against Steve (because I did not know at the time that Steve was also involved in the serious defamation against me).
Liz did not understand the court process (including the ADR requirement; it took forever back-and-forth emails to get her to agree to what the court was requiring). However we finally settled on Chris Causey as a mediator, who really was great. Steve showed up in Mr. Causey's office with Liz, and Mr. Causey asked me if I would allow Steve to sit in on the mediation. I probably shouldn't have, because I think his presence muddied the waters. However I was willing to do so, because I wanted Liz to feel comfortable. You know, I am supposedly some ogre who not only hates her but wants to marry her husband. But my actions with Liz have consistently shown me to be respectful towards her; and in the vast majority of times, patient and tolerant of her putative illness.
Ultimately we did not reach resolution, but Mr. Causey really did his best.
My third ADR took place before Robert Crowley. This was the ADR for the defamation perpetrated by both Liz McCusker and Steve McCusker. Because it was clear that I would win the defamation case on the merits, at the point that we were seeing Mr. Crowley I was perfectly willing to go to court. I would win, because both McCuskers had already admitted their guilt, under oath in their Depositions. Even Crowley agreed to that. So to me it was just a matter of how much of my time I felt like spending on the matter anymore.
It is thus my opinion that Robert Crowley was the worst mediator (here in Maine known as a "Neutral") I'd ever encountered. For starters, he told the three of us that during the process he would try to "scare" each of us into settlement. I believe his point was that he would try to make each of us understand the downsides of continuing to proceed through the court system. But he used that word "scare" (which I had heard from several attorneys who had mediations before Robert Crowley is what he always says). Does that sound helpful? He's no William Ury.
And the fact of the matter was, I knew I was going to win, it was just a matter of how much. The McCuskers had admitted their guilt in their depositions. Again I cannot disclose specifics, but suffice it to say that say that I was not disabused of this understanding by Crowley. So I told him right away, there was nothing that could actually "scare" me, since for me there was no down-side other than my own time.
All I wanted was some punishment that would make the McCuskers understand that the society we live in does not allow them to just make up lies about another person and laugh about it.
Crowley had us both in the same room to lay out the parameters of the negotiation, then separated us.
Typical of McCusker-thinking, they first suggested that I pay THEM $5000!!!!! Now, other negotiators I'd dealt with would have told the McCuskers "You have already lost this lawsuit" and suggested they get real on negotiations. The fact that Crowley even brought that stupid, stupid suggestion of the McCuskers' to me was a waste of time. I said to Crowley, "if that's what we are going to do here, I am leaving" and I actually packed up my stuff. We instead were there all day, and should not have been, but for stupid proposals like that. The McCuskers were obviously pretty idiotic for suggesting it; but we were paying Crowley literally thousands of dollars to mediate proposals----which for our thousands of dollars should have included a statement like, "hey, McCuskers, don't be idiots.....why would she agree to that proposal?"
A good example of better negotiations: During Steve's bankruptcy, Federal Judge Kornreich mediated a settlement between me and Steve. During those 4 hours of negotiations, Judge Kornreich told me (and my counsel) that he did not even bring in to us proposals by Steve and Steve's attorney Brandt that Judge Kornreich felt were "unfair and unreasonable".
Isn't that a better way of conducting ourselves?
I have no doubt that the idea of me paying the McCuskers $5000 for the privilege of having been defamed by them came from Liz. I had quite a bit of experience with her during her Depositions (which because of her weird answers ended up lasting what seemed to be forever----what took forever were things like when asked "is your son's name Martin Caron?" she'd say, "I don't know", and so I'd have to ask her, "You don't know your son's name?' etc etc etc). Thus it is my opinion that she really does not understand defamation and the fact that what she did to me was unlawful.
As I may not comment on specifics, be advised that Crowley wore me down, and I am guessing wore down the McCuskers too. This is not Justice at its best; this is not the way the judicial system is supposed to work.
To ALL negotiators (Neutrals) I do suggest the Ury model: Unless the people involved are going to cross the table with swords and attempt to kill each other, what is wrong with keeping them at the table? I always do better the longer I can stay with my adversaries and find common ground....together.
One of Crowley's last pieces of "advice" to Steve McCusker and me was that we would never be able to even be friendly towards one another. In fact, we saw each other for coffee less than one month after the ADR, and many times since. And Steve and I have reached our best compromises when we sit together and work it out. I'm not saying we are perfect at doing so, but it's loads better than $1500/day to sit in separate rooms whilst some guy (judge though he may have been) walks in and out with crazy proposals.
If you have a complaint about your ADR....or even if you don't! You can fill out an Exit Survey:
The Maine Mediation Board web site may be reached at http://www.courts.maine.gov/maine_courts/adr/index/shtml