Mediating In The Same Room: Who Does That?

By Christie Foppiano

Most of my professional life, I have been a civil litigator.  A necessary part of that practice has included representing clients in mediation.  I still remember my first mediation and how uncomfortable I felt in the opening session with EVERYONE in the room – the mediator, my boss, our client, the other party and the other lawyer.  I also remember feeling relieved when the mediator declared it time for the plaintiff and defendant to go into separate rooms.  I liked not having to stay with the other side, making small talk or sitting in silence.

I have embarked on a new chapter as a mediator and collaborative lawyer.  I have discovered to my amazement that there are mediations and collaborative law conferences designed to keep the parties together in the same room.  Yes, that is right – the same room.  If you are like me, this is a jarring thought.  Where is a good caucus when you need one?  You may be wondering why any rational person would think this is a good idea.  I have been pondering that very question and am beginning to understand why there may be some method to the madness.

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The IACT Program
A New Model for Medical Transparency and Disclosure

By Christie M. Foppiano, Jessica S. Scott & Aida Doss Havel

“Finally he [the doctor] came out to tell us it was over… that there was nothing they could do. And as a grieving parent, we were very angry for a very long time but we really just wanted to know what happened and that was not afforded us.”*

~ Sharon Delaney McCloud | Patient’s mother

“I had a patient about ten years ago who threatened to sue me. I felt the obligation to call my malpractice carrier at that time and the first thing they said was do not talk to the patient, do not write to them, do not do anything. We will handle everything. So they took away my humanity from this case.”*

~ Robert Lacin, MD | Neurosurgeon

*Cases are unrelated

In the event of an adverse medical outcome, patients often pursue litigation simply to obtain information that has been withheld. Research shows that the three things patients want most in the face of medical error are: information about what happened; a sincere apology; and measures to prevent the error from happening to someone else. Financial compensation is lower on their list. . . .

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By Christie Foppiano

The Merriam-Webster online dictionary defines the term collaborate as follows:  “to work with another person or group in order to achieve or do something.”  You may be surprised to learn, as I was, that there are North Carolina lawyers practicing collaborative law.  (I am happy to be among their ranks.)  You may be even more surprised that this practice is a creature of statute.  Although collaborative law is largely limited to the family arena, the model is adaptable to other areas of law.

So, what does the law require in this collaborative setting?  Not a lot, actually.  There must be a written collaborative law agreement signed not only by a husband and wife but also by their attorneys.  N.C. Gen. Stat. § 50-71(2).  This agreement must contain a provision requiring the collaborative attorneys to withdraw if settlement is not reached.  Id. at § 50-71(2).  This limitation is important to ensure that collaborative lawyers are not tempted to discourage settlement in order to represent their clients in subsequent litigation and collect a double pay.  And just in case a collaborative attorney might be tempted to move from the settlement table to the court room, they are statutorily barred from doing so:  “If a civil action is filed or set for trial…the attorneys representing the parties in the collaborative law proceedings may not represent either party in any further civil proceedings and shall withdraw as attorney for either party.”  Id. at § 50-76(c).  Moreover, all work product, whether that of experts or attorneys, is “inadmissible in any court proceeding” unless the parties otherwise agree.  Id. at § 50-77.

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Desperate Times Call for Desperate Measures: Stepping into a Brave New World

By Christie Foppiano

At the risk of sounding 104 years old, my how times have changed, even since I graduated from law school.  Economic hardship is shaping the way lawyers do business and how new and even seasoned lawyers are entering (or re-entering) an atrophied and evolving workforce.  These strained circumstances may give rise to greater professional creativity and risk taking.

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