January 9, 2019 § Leave a comment
The concept of Holy War (bellum sacrum in Latin) came about in the 11th century to justify attacking and attempting to annihilate infidels and those whose religious beliefs were different than those of the attacking sect.
The latest to come wafting down from the appellate stratosphere involved Jacob Chapel MB Church, which found itself divided into two factions after its pastor died in December, 2015. One faction was headed by Richard Eskridge, a deacon of the church. The other was led by Louella Peacock, the church’s secretary/treasurer. The depository bank interpled the church’s accounts in chancery and summoned the church. Peacock’s group answered first, claiming the funds, followed by Eskridge’s faction, and the issue was joined. The funds were deposited into the registry of the court.
Eskridge claimed that Brenda Bowie had been elected and installed as the new pastor. Peacock replied that the election was not done according to church by-laws, and that the membership had voted to remove both Bowie and Eskridge from leadership roles in the church.
The chancellor ordered mediation to be conducted by the SCBA, a local Baptist Association, and that body facilitated a new pastoral and leadership election according to church by-laws. That action resulted in election of Kenneth Wraggs as pastor and Betty Quinn as treasurer. The Association recommended adoption of the action by the chancellor, which she did. Eskridge appealed, claiming that the chancellor erred in ordering mediation, in relying on the Association’s findings and recommendations, and in not making findings of fact and conclusions of law.
The COA affirmed in Eskridge v. Peacock, decided December 4, 2018. Chief Judge Lee wrote for the unanimous court:
¶6. Eskridge first argues that the chancellor’s decision to appoint mediators was premature. Eskridge claims that the church had established by-laws for selecting a new pastor and had the by-laws been followed, the chancellor would not have needed to appoint mediators. Eskridge also alleges that the “mediators had their own agenda and had no direction from the Court.” [Fn 1]
[Fn 1] According to Eskridge, the church was not a member of the SCBA and as a result, the mediators lacked authority over the church. During the hearing, however, two people testified that the church was a member of the [Association].
¶7. As our supreme court has stated, the “court’s jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues.” [Pilgrim Rest Missionary Baptist Church ex rel Bd. of Deacons v. Wallace, 835 So.2d 67,] at 72 (¶11) [(Miss. 2003)] … . In Pilgrim Rest, the church did not have clear by-laws, so the chancellor established a procedure for the church members to vote on whether to retain the current pastor. Id. The supreme court later stated that “Pilgrim Rest represents a narrow exception to the longstanding practice of this Court to refuse to involve itself in ecclesiastical matters.” Greater Fairview Missionary Baptist Church v. Hollins, 160 So. 3d 223, 231 (¶29) (Miss. 2015). Unlike this case, Hollins involved a pastor who sought a temporary restraining order (TRO) after his congregation voted to terminate his employment. Id. at 233 (¶33). There, the chancellor issued the TRO, vacated the church’s vote of termination, and ordered the church to hold another vote. Id. The supreme court reversed, holding that “a pastor who is unhappy about being terminated by a church simply does not present a secular controversy.” Id.
¶8. This case is similar to Pilgrim Rest, not Hollins. The chancellor did not rule on who was entitled to be the new pastor. Instead, because the two groups were at odds and arguing over the interpled funds, the chancellor appointed mediators to oversee the election of the new pastor. At a hearing on the matter, the chancellor stated that “whatever [your] rules and regulations and by-laws are, they’re going to be followed.” And according to the church’s minutes from the business meeting, the “election was carried out in a fair and proper way and in accordance with the [church’s] by-laws as well as in accordance with the policies and procedures of the [SCBA] as indicated by” the moderators.
¶9. In this instance, we cannot find the “chancellor overstepped her bounds of jurisdiction in ordering an election when doing so was secular in purpose and sanctioned by other jurisdictions.” Pilgrim Rest, 835 So. 2d at 72 (¶11) (citations omitted). This issue is without merit.
As for the mediator’s findings, the court said this:
¶10. Eskridge next argues that the chancellor’s “ruling was based solely on the decision of the court-selected mediators who failed to follow the by-laws of the church.” Eskridge further contends that the mediators failed to determine whether the members who voted during mediation were members of the church at the time of Reverend White’s death.
¶11. Eskridge, however, has failed to show that the by-laws were not followed. In fact, as previously stated, the church minutes indicated that the by-laws were followed during the election process. The supreme court’s conclusion in Pilgrim Rest is applicable here: “There is absolutely no indication of [the chancellor] imposing an ecclesiastical dictate on the congregation of Pilgrim Rest. On the contrary, she merely sought to establish a procedure in which the majority of the Church could be heard thereby preserving the peace.” Id. at 73-74 (¶14). This issue is without merit.
And addressing the argument that the chancellor erred in not making findings:
¶12. Eskridge finally contends that the chancellor failed to make findings of fact and conclusions of law. Here, much of Eskridge’s argument is simply a reiteration of his previous arguments, which we found meritless. Eskridge does argue that the “the court also opines that the election was fair, but there is no indication of the method of the voting or the results.” The chancellor relied upon the findings presented by the SCBA and the minutes of the church’s business meeting—the meeting at which the election occurred.
¶13. Uniform Chancery Court Rule 4.01 states that “[i]n all actions where it is required or requested, pursuant to M.R.C.P. 52, [Fn 2] the Chancellor shall find the facts specially and state separately his conclusions of law thereon.” Eskridge never asked the chancellor to make findings of facts and conclusions of law. And he has not shown that the chancellor was required to do so in this instance. This issue is without merit.
[Fn 2] Mississippi Rule of Civil Procedure 52(a) states that: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law
thereon and judgment shall be entered accordingly.”
An observation or two or more:
- Where to draw the Pilgrim Rest line can be tricky. Here the chancellor merely employed a procedure to ensure that the church’s own by-laws were followed. The result was an election that did follow the by-laws.
- If you want the judge to make detailed findings you have to ask the judge to do that very thing.
- I don’t get the argument that the SCBA was without authority to act as mediator because the church was not a member of the association. There is usually no relationship between a court-appointed mediator and the parties in mediation. It seems to me that the chancellor could have appointed a neutral party such as an attorney or CPA, or even the local Presbyterian Association to mediate.
December 19, 2012 § 1 Comment
This is the finale of the series on Mediation by Don Dornan. Jr., of Biloxi.
When an agreement is reached through mediation, the parties feel a sense of relief on one hand and a degree of satisfaction on the other. This is because they have actively participated in crafting the solution to their dispute. Even if a party has some misgivings, this feeling usually evaporates over time, resulting in overall satisfaction with the process. Because there are no losers in mediation, no stigma is created because the parties crafted their own agreement with the assistance of the mediator.
Not every case can be settled to the satisfaction of lawyers representing Plaintiffs or Defendants. However, the best achievable settlement can be realized through effective use of the mediation process.
Many thanks to Mr. Dornan for allowing us to benefit from his work here on the blog. I hope you will find it useful. I know that from his tips and those in Lydia Quarles’ series, I have gained a better understanding of the ways to approach, prepare for, and operate during mediation. The benefits to litigants can be substantial.
December 18, 2012 § Leave a comment
This is Part V of the series on Mediation by Don Dornan. Jr., of Biloxi.
GETTING PARTIES TO SAY “YES”
Because the mediator is neutral and has no interest in the ultimate outcome of the case, he lacks the authority to force one party or the other to settle the case if it is not believed to be in that party’s best interests. Likewise, armtwisting, threats and intimidation by the mediator ring hollow because the mediator is without any adjudicatory authority over the case. He cannot admit or exclude evidence, compel discovery or grant summary judgment. Thus, it is the mediator’s effective use of the mediation process which most often brings the parties to agreement on terms which are mutually acceptable.
Some of the methods and techniques which have proven successful in changing attitudes and reassessing expectations:
Reversal of Roles – Sometimes the mediator will ask the lawyers to exchange roles in the case and make the other lawyer’s best argument. Follow up questions such as “If you were representing the other side, how would your evaluation change?” and “If you were representing the other side, how would you evaluate your witnesses?” can bring about a relaxation of the party’s viewpoint.
Correct Misunderstood Facts and Law – If a party’s evaluation of the case is clearly based on a misapprehension of a material fact or the applicable law, the mediator can often break a logjam by diplomatically clearing up the misperception in a balanced and inoffensive manner.
Best Case Scenario/Worse Case Scenario – Asking each side to articulate their best scenario and their worse case scenario often permits the litigants to see more clearly the wide range of potential outcomes by illustrating the best and worst that may happen if the mediation falls through. This approach can also add perspective to the other party’s last offer.
Take a Time Out – Sometimes having the parties take a break from mediation in the same room can break tension which builds up over a long day of negotiations. The mediator may encourage conversation on any topic other than the case. Likewise, taking a lunch or dinner break and reconvening often relaxes the participants and soothes emotions.
Confidential Disclosure of Bottom Line – If both parties will agree, this procedure can at least inform the mediator as to whether a gap between the respective negotiating positions can be closed. This approach normally should only be employed later in the negotiation process. With the agreement of both parties, each side confidentially discloses their bottom line settlement figure to the mediator. If the figures coincide, there is a settlement. If they overlap, the parties agree in advance that the case will be settled at the mid-point between the overlapping figures. If the figures do not coincide or overlap, they remain confidential and the parties remain at their prior negotiating positions. The obvious drawbacks to this approach are that it depends on the willingness of the parties to divulge their true bottom line figures to the mediator and on the integrity of the mediator in maintaining the confidentiality of this information.
Bracketing – Impasse can sometimes be broken through the technique of bracketing. In this approach, a party may send a message to the other side through the mediator such as, “We will move to $X if you will move to $Y.” There are risks in employing this technique. For example, if the opponent’s response is simply to decline the invitation, without more, the offering party has revealed a willingness to move to $X and gained neither a counteroffer nor any meaningful information about the opponent’s next move. Parties rarely agree to the conditions of a bracketed offer. Usually, the best that can be hoped for is a response such as, “We won’t move to $X, but if you will move to $A, we will come to $B.”
Attrition – The mediation process can continue for long hours and sometimes this promotes resolution. The parties can be vulnerable to mental and emotional fatigue. Ocasionally, a party’s strategy may simply be to wear down the other side’s resolve. Although the fatigue factor can sometimes result in agreement, the mediator must be careful to insure that any final agreement is entered into with the full knowledge and understanding of the parties.
December 17, 2012 § Leave a comment
This is Part IV of the series on Mediation by Don Dornan. Jr., of Biloxi.
Acknowledge the Weaknesses in Your Case
Mediation is a process which requires a candid self-examination of the client’s case. Mediators will frequently demand that counsel admit those weaknesses in the presence of the client. Credibility may be lost if weaknesses are not acknowledged, at least in the private sessions with the mediator. When the client hears the attorney acknowledge a weakness, it often vicariously allows the client to acknowledge it as well. Often, attorneys are reluctant to admit weaknesses while the client is present. Instead they may stretch for arguments to support less tenable positions or attempt to avoid the issue entirely. Good mediators, however, are able to smoke out such bluffing and evasive answers.
Substantiate Your Position to the Opposing Party
Often lawyers assume prior to mediation that the facts of the case are clear or that the evidence is undisputed. This is a mistake which can be avoided. In advance of the mediation, be sure you have all of the evidence necessary to establish your claims or defenses. Evaluate the strength of the evidence on each element for credibility, reliability and accuracy. Then, be sure the opposing party is provided with documentation supporting your position. It is fundamental to any negotiation that the opposing party have all the information necessary to understand and evaluate your position. Too often, attorneys wait until the mediation is imminent to provide evidentiary materials to the opposing party. In personal injury cases, medical expenses, hospital records, economic reports and life care plans are of no value if they have not been provided to the other party sufficiently in advance for review by those who will make the ultimate decision on settlement.
Anticipate challenges to the accuracy of your evidence by the opposing party and bolster your case, if necessary, in advance of mediation. This will help prevent the other side from arguing that facts which are actually established or irrefutable are in dispute, a common mediation technique.
December 13, 2012 § Leave a comment
This is Part III of the series on Mediation by Don Dornan. Jr., of Biloxi.
Develop a Strategy
Attorneys who have consistently achieved good results in mediation have followed at least two rules. First, they have made a realistic evaluation of the potential settlement and verdict ranges of their case, along with the risks of proceeding to trial, and will have discussed them fully with their client. Additionally, successful attorneys devise a negotiation strategy similar to a game plan which will help them reach their objective. A cogent discussion of the risks and ramifications of trial and other potential weaknesses will be critical to establishment of a realistic mutual goal.
For example, the client’s confidence in his lawyer can be adversely impacted if he learns for the first time during mediation of some risk, such as summary judgment or punitive damages, which was not explained to him earlier. An experienced mediator is likely to ask about these issues. Therefore, the lawyer is well advised to have the client prepared for and read to discuss all potential pitfalls.
The mediation game plan should be planned in advance yet be flexible enough to account for the opponent’s actions. Preparing the client and obtaining sufficient settlement authority are important aspects of the overall strategy. Access to the client and lines of communication to other persons with authority should be established in advance.
Be Punctual, Courteous and Attentive
The mediation date is an important event in the life of any lawsuit. It should be treated with the same level of importance as a court hearing. Lawyers and their clients should be on time for the mediation. Tardiness and last minute scheduling conflicts are poor excuses and do not enhance the credibility of the lawyer or the case. Nothing gets a mediation off to a poorer start than for the lawyer to be late while his client sits patiently awaiting his arrival. In addition to being unprofessional, tardiness rarely promotes resolution.
The Joint Session
A typical mediation begins with a joint meeting of all participants presided over by the mediator. The mediator usually delivers a brief preamble and overview of the mediation process and secures a commitment to proceed from the parties. The mediator will customarily invite each party to make an opening statement or position statement. This is the time when counsel are allowed to set forth a summary of the case and their position on the disputed issues. Because all participants are present, the position statements are delivered to a captive audience which is obligated to listen quietly to the other side’s arguments.
Some lawyers are reluctant to submit their clients to a joint session for fear that the opponent’s opening statement will inflame the client and make compromise more difficult. This viewpoint is usually inaccurate. The joint session and opening statements are almost always useful or at least not counterproductive.
Beyond disclosing each side’s position, the joint session has the following advantages:
It identifies the issues which are in dispute and those which are undisputed.
It allows clients to hear the other side’s position for themselves. While they will not likely agree with what they hear, the opponent’s position will be confirmed in the mind of the client. This helps underscore the uncertainty of litigation which must be acknowledged in order for the client to make meaningful compromises.
It can encourage parties to ventilate and begin the process of emotional runoff which will hopefully translate into a willingness to compromise.
Listening to the opponent’s position statement introduces the client to the reality of a contested adversarial proceeding and provides a preview of the trial.
December 12, 2012 § 1 Comment
This is Part II of the series on Mediation by Don Dornan. Jr., of Biloxi.
Avoid Mediation When Your Client is not Seriously Interested in Resolution
If the facts of the case are such that you are certain to prevail, there is probably no reason to mediate, absent court order. Likewise, mediation will not likely succeed unless both parties are committed to the process. If your client is not committed to resolution, it will be difficult to achieve a successful settlement. When this occurs, the lawyer should not encourage mediation nor allow the opposing party to gain misplaced optimism that a mediated settlement is likely. Often, lawyers and their clients agree to mediation knowing that there is little chance of success. When this occurs, lawyer and client both run the risk of damaged credibility with the opposing lawyer and the mediator when the mediation proves fruitless.
Don’t be Afraid of Your Own Client
Before the mediation, all aspects of the mediation process should be explained to the client. The lawyer’s evaluation of the claims and defenses should be laid out for the client in a reality-based fashion. The client should be encouraged to listen closely to the lawyer’s assessment and to acknowledge the strengths and weaknesses of his case. At the same time, the pre-mediation meeting will afford the client an opportunity to express his feelings and ventilate, if necessary. The adroit lawyer will provide an empathetic ear and reinforce his confidence in the client while administering a dose of reality about the case.
The client can be the best piece of evidence in the attorney’s arsenal even though the mediation is informal and non-binding. A credible and impressive client at mediation is just that – a credible and impressive client. However, the opposite is also true. While it may not be tactful to broach this directly with the client, a poorly performing client is a factor which should be taken into account in the evaluation of the case.
It is the responsibility of the lawyer to explain the mediation process to the client. The goal here is to enhance the client’s ability to understand what is happening as the mediation unfolds. The client should be prepared to answer questions from the mediator clearly, concisely and without hesitation. The client should also be prepared to deal with an effective opposing attorney who addresses his opening remarks to the client rather than to the mediator. Here, the client’s body language and appearance are more important than any words which may be spoken.
Don’t be afraid to advise the client of the other party’s position and the fact that the client may feel threatened, criticized or intimidated during the joint session. Explain to the client that the opposing party will not agree with his position on disputed issues and that the client may be angered at the opposing lawyer’s position statements. Such statements should not be internalized nor allowed to create emotional barriers to compromise. Clients are better served when they are prepared in advance for negative information.
Prior to the mediation, explore with your client the process of negotiation. The idea that settlement requires negotiation and negotiation requires compromise should be explained and encouraged.
December 11, 2012 § Leave a comment
This is Part I of the series on mediation by Don Dornan, Jr. of Biloxi.
MAKING AN OFFER THEY CAN’T REFUSE
There are overcrowded dockets in many of Mississippi’s Circuit and Chancery Court Districts. In the more populous counties, the time interval from filing to trial date can often be many months. The uncertainties of full dockets, motions under advisement and trial resettings frustrate litigants. These factors operate on both plaintiffs and defendants. Mediation offers parties an immediate forum and process which focuses on the strengths and weaknesses of the case and provides an opportunity to avoid the transactional costs of litigation and the uncertainties of trial.
Attorneys and judges have come to realize that approximately 90% of civil cases are settled at some point in the litigation process. They have learned that the mediation process creates a focus by the parties not previously achieved through routine discovery. This direct focus on strengths and weaknesses promotes resolution. Even when a mediation is unsuccessful, valuable information about the opposing party’s evidence, legal arguments and strategy is often gleaned.
Become Proficient Representing Clients in Mediation
If, as posited above, mediation has become a recognized and entrenched process for resolving litigated disputes, lawyers representing plaintiffs and defendants are well advised to expand their knowledge and understanding of the mediation process. In mediation, lawyers are tasked with the role and responsibility of obtaining the best result for their clients. However, in mediation, the lawyer’s role is unique in that he acts as an advocate and a negotiator. Recognizing these dual roles and refining a lawyer’s skills in each area are keys to successfully representing clients in mediation.
Lawyers who are successful in “making an offer they can’t refuse” have learned to embrace the mediation process. They know to develop a clear strategy and objectives with the client and how to utilize negotiation techniques intrinsic to the process.
December 10, 2012 § Leave a comment
Attorney Don Dornan, Jr. of Biloxi authored a superb article on mediation techniques for The Mississippi Lawyer in the Fall of 2004. With his permission and that of the Bar, I have made some minor editorial changes to serialize it here, beginning tomorrow. Together with the pieces contributed by Lydia Quarles last month, you will have some impressive tools to help you develop skill in representing your clients in mediation.
Mr. Dornan’s extensive experience with mediation qualifies him to speak authoritatively on what you need to do to have a successful experience with mediation.
Mr. Dornan’s bio above omits that he is a past president of the Mississippi Bar Association.
November 21, 2012 § 2 Comments
Thanks to Lydia Quarles for providing the thoughtful series over the past week focusing on successful mediation in domestic cases.
My hope is that you will take Lydia’s insights and use them as a springboard to explore ways to maximize success with mediation in domestic litigation.
There is no issue that can not be resolved by agreement if there are imaginative lawyers advising clients who come to the process with good will and flexibility. We older lawyers are familiar with the maxim that “child custody is the one issue that can not be settled,” but with joint custody and increasingly liberal visitation, coupled with ever-greater mobility, even that issue can be mediated successfully. There is no reason why equitable distribution, alimony, child support, visitation, and even attorney’s fees can not be dealt with the same way.
Next month we’ll take another look at mediation with practical tips from attorney Donald C. Dornan of Biloxi.
November 20, 2012 § Leave a comment
This is Part V in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
THE $64,000 QUESTION
When I am mediating a domestic issue, I always begin the first caucus with this question to the party: “If you could be your own judge — and I know that you would be reasonable and fair, knowing that you cannot have it all – how would you determine the issues that face you and the other party, and why would you do it that way?”
Prepare your client to be able to identify the issues that must be resolved for mediation to be effective, and how he/she would resolve them and why. The ability to communicate this to the mediator can go a long way in preparing your client to understand that there is give and take in mediation that there will not be in a trial. It also prepares your client to be reasonable and sensitive in approaching emotional issues.
Remind him/her that things can be resolved in mediation that cannot even be broached in a courtroom and if some of those things are of significance to him/her, this is the opportunity to discuss them and sort them out.