It is Tuesday, and I’m at the Springhill Suites Hotel in Columbia. This morning I’ve had my complimentary coffee, but the TV monitor is not working, so there is no (complimentary) news from Ukraine.
As I sit and write, sleep-addled folks wander into the breakfast area and shovel biscuits, bagels and circular sausage patties onto rectangular paper plates that are small and thin. But this morning, I, myself, forgo the bright yellow eggs for a waffle.
Springhill’s breakfast-eaters include three men wearing green polo shirts sporting logos that match the logos on their green backpacks. Columbia is the seat of South Carolina’s government and one imagines these men have business in nearby office buildings — SCDOT, S.C. State Fiscal Authority or, perhaps, the Department of Natural Resources.
I am in Columbia doing what is called a “mediation” — a process that is now required before one can go to trial.
Several years ago our Judiciary decided that a vigorous negotiation — prior to trial — might keep some people out of the courtroom. For the most part mediation has done just that because every trial usually involves uncertainty.
For the plaintiff there is the chance of a “defense verdict” — which is to say no money. For the defendant there is the chance of a “run-away jury” rendering a million-dollar verdict. These possibilities loom large in the minds of the litigants.
The mediator (a lawyer) always begins the session telling each party that this is their last opportunity to exercise any control over the outcome. “After today you will be looking at a jury —blank, impassive, hard-to-read faces — trying to determine what they are thinking.”
“After today you will wake every morning wondering what your cross-examination will be like. Whether or not the judge will buy your theory of liability. Whether or not the jury will believe your narrative as to the facts.”
After this opening soliloquy the mediator allows each of the attorneys to present an “opening argument” directly at the opposition party who is usually seated just across a three foot-wide table.
The plaintiff’s lawyer starts by reinforcing the notion of a duty owed; a duty breached and a lifetime of pain resulting from that breach. The defendant’s lawyer talks about the negligence of the plaintiff, exaggeration by the plaintiff, and greed.
After this exchange of artillery fire the parties and their lawyers retreat into separate rooms and the mediator begins a shuttle. That shuttle always begins with a “demand” from the plaintiff — that is to say the demand for a sum of money that is way beyond what the plaintiff expects to get in the end. This is met with a counter offer— always a sum that is way below what is remotely acceptable.
And now — in two small, separate rooms — the mediator takes control and gently, incrementally pushes both parties toward that magic number that will work for both sides.
When the concept of mediation was first introduced, almost every lawyer I know signed up for the course. But after many years and countless mediations I now know there are only a few people who can secure the trust (from both sides); and can somehow intuit what the plaintiff will take and the defendant will pay.
When Covid arrived it was decided that mediations, like motions, could be done remotely — Zoom. Now the lawyers, the adjusters and litigants are often thousands of miles removed from the mediator himself. These people are brought together on a huge video monitor and then separated into “video rooms” when the shuttle begins. Although the technology usually works, the sense of trust, the uncertainty, the awkwardness are diminished when nobody is actually face to face.
Zoom has also become the norm in depositions — and now the Judiciary is allowing witnesses (in jury trials) to appear “remotely” if both parties agree.
“With the consent of all parties a judge may allow a witness to appear by Enhanced Remote Communication Technology” — Zoom.
I think the essence of a trial is cross examination when one confronts a witness, disputes their rendition of the facts, exposing that testimony to doubt. It’s hard to believe “confrontation” occurs if the attorney and the witness are separated by 1,000 miles. Cross-examination should not be remote.
As South Carolina drifts from face-to-face hearings something is being lost. In the meantime there’s something to be said for sitting on your couch, in your sweatpants, with 1000 miles between yourself and a self-righteous lawyer.
Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. He can be reached at firstname.lastname@example.org.