Meeting Missouri Mediators

The Association of Missouri Mediators graciously welcomed me last month as one of the speakers for a day of advanced mediation training. I taught a session on Apologies in Mediation, and also conducted the “Ethics Game.” The training was a hybrid of people in person as well as on Zoom. I thoroughly enjoyed my experience and am grateful to Kathleen Bird and all the fine mediators in Missouri!

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SBC CEO Candidate Apologizes

A finalist to head the Southern Baptist Convention included an apology in his resignation last week. Willie McLaurin, the interim president and CEO of the SBC Executive Committee, admitted that he had falsified his resume, and had not graduated from any of the institutions listed.

In his resignation letter, submitted to the SBC Executive Committee, he said in part:

“In a recent resume that I submitted, it included schools that I did not attend or complete the course of study… To the Southern Baptists who have placed their confidence in me and have encouraged me to pursue the role of President & CEO of the SBC Executive Committee, including pastors, state partners, entity servants, colleagues, and SBC African American friends, I offer my deepest apologies. Please forgive me for the harm or hurt that this has caused.”

If this is the sum total of the apology – and it may well not be –, it’s deficient.

Responsibility: For what is he apologizing? He reportedly admitted his wrong when confronted by the Executive Committee, but it’s not clear here that he’s apologizing for lying.

Remorse: “my deepest apologies” sounds weak somehow. Why is it plural? “deeply sorry” would sound more sincere.

Reform: A good apology includes a description of how the offender intends to alter behavior and avoid the offense in the future.

Impact: While he acknowledges that this caused “harm or hurt,” he doesn’t acknowledge exactly how – e.g., that it set back the SBC months in its search for a new CEO, and has shaken the already-shaken faith of many Southern Baptists who trusted him. Not sure why you need both “harm” and “hurt,” and if you’re going to keep both, wouldn’t it be better to link them with an “and” instead of an “or”?

To his credit, he didn’t try to justify himself or offer an explanation. But the weakness of this apology leaves us wondering whether he truly is sorry, and whether he fully understands the consequences to others of his wrongdoing. Let’s hope this isn’t the full apology, or that there’s more to come.

Schembechler Apology Falls a Little Short

Only three days after he was hired, Glenn Schembechler resigned Saturday as assistant director of recruiting for the University of Michigan football team. Football fans discovered and were appalled by some of Mr. Schembechler’s “likes” and re-tweets on his Twitter account, including racist posts as well as support of the January 6, 2021, invasion of the Capitol.

In one portion of his apology statement, Mr. Schembechler said, “My sincerest apologies, again and profusely, to anyone that I have offended …”

Although the statement was issued through a public relations firm, it misses one of the cardinal elements of a good apology: take responsibility. The phrase, “to anyone I’ve offended” sounds too much like, “You shouldn’t have been offended, and if you were, it’s your problem.” It implies that he doesn’t know whether he offended anyone – but the storm of fans complaining about his social media posts indicates there were plenty of people who were “offended.” Why not substitute “everyone” for “anyone”?  Or better yet, “I realize that my comments were offensive and have hurt many.”

Pointing out that “we have all made mistakes” also doesn’t have a place in a sincere apology. That’s for his listeners to note, not him.

Other parts of his apology were good, including the straight-up admission, “I was wrong.”

Which all goes to show, once again, that it’s tough to make a good public apology.

Church Settles Dispute Through Courts

The Evangel Church in Detroit had a dispute about its governance. Some leaders determined that the pastor should be selected by the board of elders, and then the pastor would select the members board of elders. But the church members contended that they had always had voting rights.

This is not an uncommon debate in Protestant churches. Instead of resolving their dispute “within the church,” they brought their dispute to the civil courts – the Wayne County Circuit Court. The trial court found in favor of the members, based on the church’s organizing documents, so the church leaders appealed to the Michigan Court of Appeals, and lost again.

Evangel Church estimated its legal costs at $50,000. The church chose the most public, expensive process to resolve its dispute. And it’s likely that, while the legal issue may be resolved, the damage to relationships will last a long time. Perhaps they tried some kind of private mediation process that didn’t succeed, or sought wise counsel from leaders of other churches that went unheeded. But, failing that, they could have proceeded to a church arbitration, where all parties agree in advance to be bound by the decision. That would’ve kept it private, and likely would not have cost so much. There are several national peacemaking organizations that offer this service –Googling “Christian arbitration” yields many options.

May God bring healing to all involved.

How Does Litigation Funding Affect Mediation?

Litigation funding is a means of financing a lawsuit. A third party “invests” in the lawsuit, helping to pay for the costs of litigation, then collects a portion of the recovery. It mostly helps plaintiffs, especially parties who could not afford to sue, such as class actions. If its side does not prevail – in other words, if the plaintiff doesn’t win at trial–, the funder gets nothing, and it loses the funds it provided. But if its side wins, the funder may collect most or all of the proceeds, depending on the arrangement it made with the party.

The idealistic justification for third-party litigation funders is that they level the playing field, allowing average citizens to seek justice from gigantic corporations. The concept of a wealthy person paying for an injured party’s lawsuit has been part of western civilization for centuries; it was known as champerty at common law.

This practice is booming in the U.S. these days, but it is not without controversy. The U.S. Chamber of Commerce recently complained to a Chicago federal judge that financiers can improperly influence legal proceedings and undermine attorney-client trust, in addition to posing a natural security risk. And then there’s the issue of what happens when the funder and the party disagree about litigation strategy. Although Burford Capital – the largest litigation financier in the U.S. — told “60 Minutes” last December that it lets its clients run their cases as they see fit, it is in a dispute right now with its “fund-ee” Sysco about whether to settle certain claims and at what price. As that case demonstrates, most lawsuits these days do not go to trial; they are resolved by pre-trial court rulings, or they are settled. They may be settled in mediation.

For mediators, the question is, how does litigation funding affect a party’s behavior – strategy, negotiation style, settlement steps – in a mediation, and how should mediators respond?

  1. Disclosure of existence of Litigation Funder: For starters, the mediator (and the other side) may not know that there is a litigation funder lurking in the background. Parties typically sign a Non-Disclosure Agreement (NDA) when they engage a litigation funder. The funder may choose not to attend the mediation, and if they do attend, their role as funder may not be clear. But some litigators believe it’s to plaintiff’s advantage to disclose the existence of a funder, as a sign that their case has merit—so much so that a stranger has invested in it. There are legal efforts to mandate disclosure of a third-party funder, both at the state and federal levels. Some states already require disclosure in certain types of cases.
  2. Risk assessment: One of a mediator’s key tools is the assessment of risk, asking each side, in a litigated case, to consider what is the risk that they will lose in court. Whether you win or lose, how much will you have to pay to get to a verdict? High litigation costs and a low damages award can turn a win into a loss. Mediators encourage plaintiffs to consider the costs of litigation in their assessment of risk. But a third-party litigation funder reduces that cost to practically zero. That changes the calculus: now, instead of, “I could lose big,” it’s “What do I have to lose?” Mediators have to use other tools in their toolbox to settle these cases.

Of course, it’s also true that the litigation funder provides another set of eyes to evaluate the case. The funder has already asked the tough questions regarding the weaknesses of the case that a mediator might otherwise pose. The plaintiff may be more realistic about likely trial outcomes.

Or, both the funder and the plaintiff may have an inflated view of the value of their case, in which case the mediator may have to work twice as hard.

  1. Timing of settlement: Depending on the terms of the agreement between the party and the litigation funder, the party may have an incentive to settle sooner, as litigation funding contracts may have a sliding-scale repayment, with the portion of the proceeds taken by the funder increasing as time goes on.
  2. Value of the case: A gigantic finance company views money differently than an individual does. A defense offer of $100,000 may be insulting to the litigation funder but enticing to a cash-strapped plaintiff. This is why it’s wise for the funder not to get involved in litigation decisions such as what amount to accept in settlement. The more involved they are, the more the mediator will have to mediate between the funder and the party.

Barbara Reeves, a mediator with JAMS, wrote an article on how the presence of a third-party funder changes the decision-making of both parties in mediation. She concludes that — if a mediator is fully-informed about the presence of the funder — a mediator can successfully factor that into the settlement negotiations.

But it requires the mediator to approach the case with a different perspective, and to implement new tools in the toolbox.


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