Orleans Parish DA: Jailing Rape Victims is Okay

Orleans Parish District Attorney Leon Cannizzaro either doesn’t understand the gravity of his recent statements or doesn’t care. He’s on the record saying jailing rape victims to ensure their testimony is okay.

Orleans District Attorney Leon Cannizzaro says in some rare cases, it’s necessary to put a victim or witness in jail to get a dangerous criminal or sex offender off the streets.

“If I have to put a victim of a crime in jail, for eight days, in order to…keep the rapist off of the street, for a period of years and to prevent him from raping or harming someone else, I’m going to do that,” Cannizzaro said.

These statements come on the heels of a judicial watchdog group called “Courtwatch NOLA” taking issue with the DA’s office using “material witness warrants” to compel victim testimony. These are arrest warrants for witnesses or victims that send someone the District Attorney feels vital to the case to jail. Do not pass go, do not collect $200. If your testimony is important, you’re headed to the pokey.

Why would a DA’s office jail someone vital to the case? Wouldn’t a more compassionate form of ensuring their return to court be just as effective, and maybe a better look for a region and an office that already has terrible PR in the eyes of the community? In Cannizzaro’s eyes, it’s all a small price to pay in the pursuit of justice.

The DA maintains it’s a small price in the pursuit of justice.

“Steps have been taken to arrest that person, to indict him, to bring him to court and [the witness says], ‘I don’t want to get involved,’ in my opinion that is wrong,” Cannizzaro said.

That small price to keep your witness means one more person goes into the jail, with their alleged rapist. One more person gets to do the squat and cough in front of a booking officer to ensure no contraband makes its way into the jail. If that person is lucky, they won’t get a cavity search violating them a second time, this time state sanctioned. They’ll get the same jail issued jumpsuit and crocs as their rapist.

That’s DA Cannizzaro’s idea of a “small price.” It’s more about keeping the really violent offender off the streets for a long time than making sure victims and witnesses aren’t treated with compassion. A little inconvenience for them now means the bad guys are off the streets, and a little inconvenience never hurt anyone, right?

“Is it more important for this witness to be inconvenienced for a very short period of time or is it better for the community to get the violent offender off the streets and keep him off the streets,” Cannizzaro added.

Of course, this is Orleans Parish, where there’s a bit of a problem determining just when those alleged violent offenders will actually get a day in court. That problem actually saw a guy charged with rape get released from jail before ever getting tried for the offense. Cannizzaro threw a fit over that too, but let’s not get past the point of this post.

Three hundred and forty eight miles from Orleans Parrish is Harris County, Texas. Last year, during a sexual assault case, “Jenny,” a victim suffering from bipolar disorder, broke down on the stand during testimony and said she couldn’t continue. District Attorney Devon Anderson wasn’t too thrilled with the idea of her rape victim not returning to court. So she sent “Jenny” to jail. Let Devon tell you all about it.

Unfortunately for Devon Anderson, she’s no longer Harris County’s District Attorney. When it came to choosing between “Jenny” or Devon, the public chose the former and voted Devon Anderson out of office. The current Harris County DA, Kim Ogg, conducted sweeping changes of the District Attorney’s office and even testified in favor of “Jenny’s Law,” a piece of legislation giving victims and witnesses their own attorney and a full hearing before a judge signs an attachment warrant.

Leon Cannizzaro didn’t look to the fate of Devon Anderson when making his current statements to the press. That could very well be the end of his prosecutorial career, given the public’s interest in seeing victims and witnesses treated with compassion instead of dealing with an inconvenience.

Those who do not remember the past are condemned to repeat it. And in Orleans Parish, Leon Cannizzaro’s failure to remember the past of Harris County may condemn his future as a District Attorney.

Time to bust out the popcorn. Happy Friday.

 

Snap Shot: The Aaron Hernandez Verdict

With apologies to my friend, mentor, and all around esteemed colleague Scott Greenfield for the last gaffe in snagging his “But For Video” gimmick. The “Snap Shot” will be my “Short Take” on an issue. 

Aaron Hernandez, a former Tight End for the New England Patriots, was recently found not guilty of a double murder by a jury of his peers. His detractors on social media were quick to point out that he’s already serving life plus cancer for another murder, and that he’s not coming back to the NFL. Gleefully celebrating in a healthy dose of righteous indignation, someone made the mistake of asking me what I thought of Hernandez’s win in court.

Here’s the answer. I’m happy Aaron Hernandez got the coveted NG.

Not because I think he’s going to get into the Patriots’ good graces again anytime soon. Having married into a Patriots fan family, I’ve got experience knowing how forgiving Pats fans are for indiscretions. I also don’t see Hernandez getting into the NFL’s good graces either. A return to football would be the comeback story of a lifetime for a guy like Aaron Hernandez.

I’m happy because the Hernandez verdict represents a rarity in our criminal justice system. The state threw everything they had at Aaron Hernandez and a jury of his peers said “sorry, we’re not buying it.” That’s a rarity in our society, one so quick to condemn and label someone a criminal.

“Innocent until proven guilty” is just an empty platitude in a society based on feelings. 

Here the state didn’t have enough evidence to prove beyond a reasonable doubt Aaron Hernandez was part of a double murder. The jury, usually ready to hang a defendant at first sight, said “no” in this case. That’s a win for Hernandez and his defense team, even if he still has life in prison now that the trial is finished.

People who don’t work in the system daily don’t understand the majority of what we do is deal with failure, shrug, and move on. Far too often the State or the Feds have enough before we go to trial to secure a prison stay for our clients. So when situations like Aaron Hernandez’s come along we all celebrate, because we know victories like this are rarer than a Super Bowl ring.

But For Video: Parents Doing Stupid Things Edition

An acquaintance posted this video on social media today, asking parents for comment. Go ahead and watch it, then answer the following question:

Do the parents deserve punishment for this video? 

It’s perfectly natural for your first, visceral reaction to condemn the parents and feel horribly for the kids. On first viewing it’s hard to make it past the youngest child openly bawling, professing his innocence.

But what to do about it? Do you call for government intervention? Is your first instinct to call for the Department of Children’s Services? Many people, well intentioned parents included, saw the video and demanded the family’s local DCS hotlines get flooded until something happened.

This reaction leads me two two fundamental assumptions about those who call for DCS intervention over a stupid video:

  1. If you’re calling for DCS intervention, you’re most likely not a parent.
  2. If you’re calling for DCS intervention, you’ve most likely never interacted with DCS.

If you’re serious about the Department, Child Protective Services, or the family’s local equivalent getting involved after viewing that video, this is what you’re asking for that family:

You’re asking for a bunch of social workers, most likely flanked by police, to tell the kids to put their clothes and a few comfort items in a trash bag while the parents loudly protest their removal and tell the kids they love them. You’re asking for the kids to ride in the back of a car to a foster home together, if they’re lucky. Most likely they’ll get split up into several foster homes. Worse yet, there’s a good potential for the children as a unit to head to a group home where they will be assaulted by staff, neglected, or mistreated in some fashion.

These kids will next see their parents after Mom and Dad appear in court, flanked by attorneys that are most likely court-appointed. They will have to relive their “prank” video as evidence presented by the State that probable cause exists for the children to remain outside their home. Mom and Dad will have to submit to and pay for drug testing. Most likely, they’ll both get urine tested and hair follicle tested.

Attorneys will call the children as witnesses. The kids will have to relive the entire experience again, and this time get cross-examined over any inconsistencies in their testimony. If the family is lucky, the juvenile judge or magistrate judge will find by clear and convincing evidence the parents didn’t neglect the children or commit child abuse with their prank video.

If the judge or magistrate finds otherwise, the parents will be placed on a “permanency plan” designed by well meaning social workers to put them back on the “right” path. Steps may include weekly drug testing, maintaining a stable source of legal income, and completion of an anger management course. All of which will be paid for by the parents.

It’s going to be really hard for the parents if either of them works with or around kids, too. There’s a good shot they’ll get “indicated” for potential child abuse and placed on a registry of people who were actually found guilty by a judge of committing child abuse long before they reach trial over this video. That means when either parent goes to work, they might be out of a job. Getting off a registry like that takes substantial time, energy, and luck. And money.
Back to the permanency plan. If the Department’s workers don’t find within a year the parents have “substantially complied” with the permanency plan, there’s a good chance the Department will file to have the parents’ rights terminated. This is critical mass. At this point the State throws everything at the parents to prove them completely unfit to parent, and will pressure them into signing “surrender” documents that allow the kids to find their biological parents once they become adults.

If a judge finds by clear and convincing evidence the parents’ rights should be terminated, the family is severed forever. The kids will then be put up for adoption.

Now that you’ve read the entire hypothetical of what happens when you involve DCS, CPS, or any similar government agency, go back and reevaluate your answer to the original question.

Do the parents deserve punishment for this video? 

Not comfortable answering that? Let me rephrase the question.

Does this family deserve to be forever torn apart for this video?

The parents did something stupid and put it on the Internet. The world is already calling them vile and mean spirited. They will probably suffer social consequences for their actions. They’ve suffered enough. Destroying the entire family by calling in DCS doesn’t help.

 

Citizen Cromwell’s Day In Court

There’s times when you get a case, or look a the case, and wonder what the hell a person was thinking when they did something. And then there’s the “Sovereign Citizen,” which at this point I’m inclined to believe is code for “batshit insane.”

Consider the case of Lee Howard Cromwell, an alleged* member of this movement. He’s currently charged with several offenses, including numerous filings of false liens against government officials. That’s a familiar tactic of sovereign citizens. Cromwell is a special case, though. He’s charged with killing several people by driving his truck through a Fourth of July fireworks crowd.

There’s a question to Cromwell’s mental capacity. According to his twenty-seven page manifesto, he doesn’t need a driver license to operate a motor vehicle on roads. Instead, he carries a four page “constructive notice” citing certain Supreme Court cases that allegedly mean he doesn’t have to have a driver license since public transportation on roadways is a “common right.”

Cromwell also doesn’t think judges are legitimate, since they are not “licensed,” and receive compensation from the IRS. Attorneys licensed through their State Bar associations are not legitimate, either, since the State Bar is the one place where you can get a license to practice law.

Keep with me on this one. It gets better.

Lee Cromwell also thinks statutes aren’t laws. According to his sublime interpretation of the U.C.C., statutes aren’t law unless there’s a clear legislative intent to “abrogate the common law.” Therefore, because statutes are merely “corporate policies,” they aren’t laws, and they don’t apply.

Oh and Article III of the United States Constitution is under attack by treasonous people who call themselves “lawyers.” Since lawyers merely enforce corporate policy through the State Bar association, the Constitution is in jeopardy.

The one problem with all of Lee Cromwell’s “constructive notices,” failure to recognize courts, law enforcement, and lawyers as legitimate, and his resounding condemnation of the law, is his failure to justify any of  these positions in a manner that makes sense to a rational human being. Furthermore, his citations aren’t to any source of relevance.

Cromwell’s numerous “statutes” and “definitions” are pulled from things lawyers call secondary sources or reference material. He uses American Jurisprudence  (“AmJur,”) which is an encyclopedia of the law as referenced through case material. It is not law. Cromwell’s understanding of the U.C.C. and its relevance to modern law comes from a treatise called Anderson on the U.C.C., Text, Cases, and Commentaries. 

That volume contains no binding legal authority either. It is a person’s opinion on the Uniform Commercial Code, a set of laws dealing with commercial transactions. It has nothing to do whatsoever with the twelve counts of aggravated assault, reckless endangerment, vehicular homicide, murder, and criminally negligent homicide he’s facing.

We’re getting to even better stuff.

The conclusion to Lee Cromwell’s “Conditional Acceptance of your Security Instrument Offer**”  makes numerous demands of “substantial evidence” regarding the night in question, prove that he is a “citizen of” Anderson County, provide evidence as to who the named parties are in his case, and why he’s being held in jail instead of Anderson County simply filling out a Form 1099-A and recompensing the injured or survivors of those dead with money from a government agency he doesn’t recognize.

If the named individuals can’t meet Cromwell’s demands within fifteen days of receiving his “Conditional Acceptance,” all the named parties have to pay him five million dollars. And he gets to file liens against any of the named parties at any point in which he so chooses.

Now that you’ve been served your appetizer and main course of [ableist slur], here’s the ever so rich dessert.

Cromwell invoked his Fifth Amendment right against self incrimination during a deposition at the Anderson County Courthouse on April 12. In fact, that’s all he would say during the course of his deposition besides give his name, age, and address. Every single question got the same response: “I invoke my Fifth Amendment right against self-incrimination.”

This guy, who doesn’t believe the law applies to anyone, who thinks lawyers are practicing through a corporation committing treason against Article III of the United States Constitution, and who somehow managed to construct a completely new standard and burden of proof, backed slowly away from his demand of five million dollars and did what his lawyer told him to do: shut the hell up.

Normally I don’t touch crazy cases like this with a ten foot pole. There’s several lessons to be learned from Lee Cromwell and his “sovereign citizen” status. Let’s wrap up today’s material.

  1. You can call yourself a “sovereign citizen.” You are free to read the laws of this country in any fashion you so choose. When you run afoul of the actual laws, the people who went to school, trained in the profession, and work hard to keep your ass out of the fire are going to apply and use the law for you, whether or not you agree with how they do it.
  2. Cromwell did the right thing at his deposition. He paid attention to his attorney and shut up. Cromwell might have gritted his teeth through every bit of the deposition, but he shut up the entire time. Keeping your trap shut is as good a strategy as you can take in court, even if you’re a “sovereign citizen.”
  3. It’s not a good idea to question the legitimacy of the Court, Law Enforcement, or attorneys in a rambling demand letter pushing Trust and Maritime Law. Or to send it to Loretta Lynch.

I’m done. Happy Friday.

The Sit Down goes Live Monday

If  you’re a listener of my broadcast “The Sit Down with Chris Seaton,” we appreciate your support.

If you’re not listening, you can remedy that by going here, or subscribing on iTunes, TunedIn, Google Play, Stitcher, or wherever fine podcasts are sold or stolen.

Unfortunately, this week things are going to be different.

I got a message from The Sit Down’s producer, Aaron Campbell, last night. He’s laid up in the hospital with what is most likely a severe case of the flu. He wanted to cancel the show. I said “no thanks.”

So this week we’re going to try an experiment. Monday, March 27, starting at 11 AM, “The Sit Down with Chris Seaton” goes live with its first ever video show. Livestreaming video, 100% uncensored, and completely open to the viewers and listeners.

Want to be a part of the show? There’s several things you can do.

1. If you’ve topics to suggest, leave them in the comments, twit them @clsesq, or email contact@thesitdown.org

2. If you’ve questions you can do likewise or join us on the live Periscope broadcast. We will try to get to as many as possible during the show.

3. If you can’t make it, tell a friend.

Should you happen to miss the broadcast, it’ll be on the Sit Down’s YouTube page for later consumption.

I look forward to joining you in a one vs. the mob style discussion about big ideas, fun topics, and controversial opinions.

See you Monday.

Tennessee: Operation Gideon

Tennessee won a battle with the Indigent Representation Task Force. In April the group will present their recommendations to the General Assembly. We can celebrate now, but there’s hard work to win this war.

All 99 House of Representative Seats are up in 2018.

Tennessee Representatives serve two year terms. It is on us, the people who care for the state’s poor and want to ensure their competent representation, to hold every legislator’s feet to the fire over these recommendations.

Their marching orders are very simple. You adopt the Task Force’s recommendations or you are out.

I will be watching which representatives adopt the recommendations and which reject. There will be a continually updated list on Mediation is Dead listing each accept and each reject. We will, as an organized force, eject every single candidate from office that rejects the recommendations.

Vote reject and you will be very uncomfortable. 

Technology is an amazing thing when it comes to influencing elections. Anybody with a smartphone can get on Periscope or Facebook Live and broadcast real news, in real time, to hundreds of thousands of people. Those Representatives who vote to reject the Task Force’s Recommendations will face quite a few bad days.

Imagine being a comfortably secure Tennessee representative, hosting a pancake breakfast for your constituency to spread your campaign platform. Suddenly as you’re speaking, a person with a smartphone pops up and asks you “Representative (x), you voted against the Task Force’s recommendations to provide better indigent defense in this state. Why do you hate poor people and the Constitution?”

Now imagine your answer and your response not just temporarily live streamed, but uploaded to YouTube for the world to enjoy.

People will go to town halls, Q&A sessions, ribbon cuttings, and more to put this question to any representative who rejects the Task Force’s recommendations.

Any gubernatorial candidate must endorse the Task Force’s recommendations to win. 

There’s a footnote on page 42 of the Task Force’s report regarding a peculiar member’s decision on raising compensation rates for court-appointed attorneys.

Task Force member Dwight Tarwater, who serves as counsel to Governor Bill Haslam, did not participate in the decision regarding the recommendation to change the hourly rate.

Why Dwight decided to abstain from this recommendation is unclear. It’s not as if his paycheck is in jeopardy should he decided to sit on the side of the Constitution. And his boss term limits in 2018, so it’s back to private practice or teaching somewhere.

The problem facing any candidate with an (R) on their names is the Republican governor’s private counsel decided to stay out of the decision to raise rates of pay for court appointed counsel. The lawyer to the businessman who promised up and down, honest to goodness, that he’d create more jobs in this state mysteriously “did not participate” in a measure that could create more jobs.

A rate raise to even $75 per hour means more attorneys can hire assistants and paralegals. That means more jobs right off the bat in the legal profession alone. It means the quicker payment of student loan debts. And it means bills get paid faster and children eat better at night. Finally, lawyers can do what they went to school to do and not have to drive for Uber or take side gigs to keep their practices alive.

If you’re running for a chance at the Governor’s mansion in Tennessee next year, and you run Republican, you’re going to need to address the Task Force’s recommendations now. You will need to endorse them. Show us you care or the mansion goes to the Democrats.

The fight begins today.

It’s time for those of us who give a damn about the mandate of Gideon to do something about it. I pissed off enough people on my own, and change came for the better. Now it’s time for the rest of us to put enormous pressure on the state’s House and Gubernatorial candidates to adopt the good in the Task Force’s hard work.

Join me. You won’t regret it.

Project Update Status, Spring Edition

The first day of Spring was yesterday, and with it comes some significant changes to a few projects I’ve had in the fire. If you’re interested, here’s a few updates.

Fault Lines, a site I poured my blood, sweat, and tears into for about two years, is nonexistent at this point. I will be migrating some of the older material that got better views to MiD, and potentially to Medium as the time comes.  Eventually I may take the lion’s share of what I did at Fault Lines and put it into an anthology.

To every contributor to Fault Lines, past or present, you have my endless respect, love, and admiration for all you did. One day we shall rise again and raise hell together. If you’re ever in my neck of the woods we’ll crack a jar.

The Sit Down with Chris Seaton is my latest project. Originally the fourth hour of “That Midday Show,” The Sit Down is a news and talk program where we discuss all manner of issues from legislators behaving badly to “The Bachelor.” You can find it wherever podcasts are sold or stolen.

The Sit Down also has a YouTube channel where we discuss short topics. Expect me to play more with video in the coming months. I’ve enjoyed what I’ve come up with for YT greatly.

Mediation is Dead will still continue. It will be the primary source for all my writing going forward, so keep an eye on the site because as I have more time to pour into my own personal piece of the Internet I’ll continue to make it worth your attention.

Film: I’ll be releasing the details of a project I’ll be shooting this summer that will capture your attention. Working on “Silenced” and “Un/Convention” was a life-changing experience and I don’t see that going away any time soon. This new project, code named “Miranda,” will see probably a turnaround in the fall depending on how the start of funding goes.

Stay tuned. Stay frosty.

I am Chris Seaton.
Mediation is Dead.

Stupid People Doing Stupid Things, Wrestling Edition

Preface: This is a post about stupid things in pro wrestling. You may find it enjoyable. You might not. Either way, you’ve been forewarned. Terms not familiar to the layperson explained at the end of this post.

There’s been some truly head-scratching moments in recent days for pro wrestling fans. If you’re anywhere near the business, you can smell the stupid coming off major companies and those with decision making authority. The smell, of course, isn’t pleasant.

Guilty Party number one is Total Nonstop Action Wrestling, or Impact Wrestling. Currently under new management with Anthem Sports, a division of Canada’s “Fight Network,” TNA is going through the difficult measure of figuring out who to hire and who to fire in an effort to save the struggling promotion.

One target no one saw on the chopping block were the Broken Brothers, Matt and Jeff Hardy. Veteran tag team wrestlers, Matt recently revived his career with the “Broken Matt Hardy” gimmick that turned him into a wealthy lunatic with a Mexican gardener, a menagerie of zoo animals containing the souls of great warriors, and a lake that revived wrestler gimmicks long retired.

Broken Matt would feud initially with Jeff, who he called “Brother Nero,” in a singles program for the rights to the Hardy family name. The two would then team to face a group called “Decay.” Finally, an entire episode of Impact Wrestling with incredible amounts of lunacy was taped at the Hardy compound in Cameron, North Carolina.

These three bits, “The Final Deletion,” “Delete or Decay,” and “Total Nonstop Deletion” are best termed pro wrestling’s “Sharknado” trilogy. You will love them or hate them, but the general consensus is each is so bad it’s good. Regardless, each of the segments produced impressive ratings for a struggling pro wrestling promotion on Pop TV.

Contract negotiations didn’t go well with the Hardys. They felt so insulted by Anthem’s offers they didn’t even counter. They just finished out their dates, offered to drop the TNA Tag belts at a taping*, and then moved on to Ring of Honor, where they quickly won the Tag Titles.

Anthem countered by serving the Hardys with a Cease and Desist, claiming intellectual property rights in all of the Broken gimmicks, and demanding the duo cease using the Broken gimmick immediately.

This is not a good look for Anthem or Impact Wrestling, as Matt’s wife Reby Sky recently pointed out on Twitter. Among the organization’s egregious sins, “Senor Benjamin,” the gardener in the Broken universe, is Reby’s real life dad and was never under contract with Impact or Anthem. Asking him to stop being himself or threatening him with legal action is just plain stupid.

Matt’s more than likely ready to fight this should Anthem decide to make good on the threats of a lawsuit. He’s probably coaching Jeff on what to do in case something goes south. Jeff knows a thing or two about the legal system, so safe bet is he’s not exactly scared of a lawyer.

Anthem, back off. Get some sense. And rid yourself of the owl logo. That suggests wisdom, and picking a legal fight with the Hardy Boys doesn’t display much sense.

Guilty Party Number Two is the big dog in professional wrestling, WWE. In preparation for the Showcase of the Immortals, the organization announced on Twitter today the Undertaker would face Roman Reigns at Wrestlemania 33.

This is a hard level of stupid to measure, because it deals with an iconic WWE star, someone the federation has tried to get “over”** with the fans with no success for some time, and a Wrestlemania tradition called “The Streak.”

The tradition at Wrestlemania is the Undertaker never loses. For some reason, The Deadman is able to up his game at the company’s biggest yearly show and come away with a W. That would change on April 6, 2014, when former UFC World Heavyweight Champ and former NCAA Heavyweight Champ Brock Lesnar would end the streak in the New Orleans Superdome.

Ever since that year, the Undertaker has beaten his Wrestlemania opponent. Lesnar remains the 1 in 23 and 1, but Vince McMahon, the WWE’s top dog, wants Roman Reigns to get over with fans badly. He wants “The Big Dog” to get some sort of traction with the WWE Universe***, and it smells like Vince is considering asking ‘Taker to “do the honors”**** for Reigns this year.

If that happens, there will be riots. If there’s a person liked less than John Cena in WWE, it arguably has to be Roman Reigns. If there’s one person the WWE fanbase resents having shoved down its throats repeatedly, someone who can’t cut a promo without a Hollywood script writer handing him his lines hours before airtime, it’s Roman Reigns. A win over the Undertaker at Wrestlemania does no favors for Reigns or WWE.

First, it tarnishes Brock Lesnar’s beast-like credibility. Part of the beauty behind Lesnar’s status as the 1 in the 23-1 is that Brock is such a huge animal of a human being, he could have legitimately “gone into business for himself”***** during that match, beaten the piss out of the Undertaker, and cemented a legacy he shouldn’t have.

After the conclusion of their match, The Undertaker stumbled through the curtains before passing out. He left with Vince McMahon in an ambulance to a nearby hospital for concussion testing and an injury evaluation. Vince didn’t return to the Superdome that evening and watch the finish of his show. That’s unprecedented.

If Reigns defeated the Undertaker at Wrestlemania 33, doubling the Deadman’s losses, it doesn’t give Reigns any extra heat******. It just makes Taker look a little bit older and ready for retirement. It also takes the wind out of the excitement normally reserved for the Undertaker’s moment at Wrestlemania. He doesn’t make many appearances beyond that date, and fans pay good money to see him work.

WWE is on the verge of doing something very stupid with Roman Reigns and the Undertaker. I hope for the sake of the company, the boys in the locker room, and those who shell out their $9.99 a month they don’t double down on stupid.

*”drop the belts”=losing the titles to a team the promotion wants to have the belts

**”over”=successfully getting a desired reaction with fans. If you are a good guy, being “over” is getting cheered. Bad guys are “over” when they’re booed.

***WWE Universe=the name the promotion gives its fans

****”do the honors”=lose to the other wrestler

*****”going into business for himself”=deviate from the expected finish with the express intent of making yourself look good at your opponent’s expense.

******”heat”=forward momentum, alternately negative reactions to things you say or do.

The Dilution of Mediation

Mediation is becoming diluted as a form of alternative dispute resolution. Despite being touted as the be-all, end-all of resolving conflicts, an ugly truth has emerged. You don’t need qualifications, training, or expertise to be a “mediator.” You just have to call yourself one.

This would be absurd in any other profession where dispute resolution was key. Yet in mediation, the sole requirement for you to “mediate” a case is to call yourself a mediator and run with it. You need no training in persuasion, balancing power, or helping parties find alternative outcomes. When the bodies that govern the training and expertise of mediators don’t even bother to police themselves, the term means nothing.

Consider the Volunteer State. There is a specific rule that governs the conduct of mediators. It’s Tennessee Supreme Court Rule 31. If you are to become a “Rule 31 listed” mediator you have to pay out thousands of dollars in training fees to get “certified.” Then you submit an application and take continuing mediation education (CME) classes to keep your Rule 31 status.

The dirty secret of a “Rule 31” listing is that it only puts you on a list for judges who need a mediator at a moment’s notice when parties can’t agree on a neutral. It also grants you qualified judicial immunity when performing a Rule 31 mediation. That’s it. You’re arguably better off marketing yourself as a dispute resolution professional than spending time attending the CMEs that tell you to advise litigants to pack a lunch and bring a book because they’ll be in session all day.

This means anyone can hold themselves out as a “mediator.” If you want your local pastor to “mediate” your divorce, they’re more than capable of doing it. Someone without a grasp of the law, persuasion, ability to “expand the pie” beyond nominal dispute resolution boundaries can “mediate” a case. When that person does so, their case is more than likely headed to trial.

In the legal profession, this would be untenable. Lawyers have to get a JD, pass the bar to show they’re minimally competent when practicing the law, and continually update themselves when it comes to their chosen profession. No one in their right mind would go to a criminal defense attorney and ask them to handle a bankruptcy case. The criminal defense attorney would be either desperate for money or foolish if they took said case, and an ethics complaint would most likely be in order if the crim law attorney held himself or herself out as a bankruptcy attorney.

Yet in mediation, anything goes. The party who wants to use Jim Bob from Farmer’s Insurance as the neutral of their choosing gets to do so as long as the other side agrees. Never mind Jim Bob has no training in mediation, doesn’t understand the process, or even has a solid grasp on the law that governs the case in dispute. As long as Jim Bob from Farmer’s calls himself a “mediator” he can mediate the case as he pleases, and to the parties’ detriment.

One way to fix this problem would be for mediation groups like the Alternative Dispute Resolution Commission to self-police, ensuring those who held themselves out as “mediators” actually had the minimal training and competency to fulfill a neutral’s role. This has worked wonders for the practice of Collaborative Law. If you bill yourself as a Collaborative practitioner, someone’s going to eventually ask you where you trained, who trained you, and what practice group you associate with. Insufficient answers will find you pressured to removing the “collaborative” word from your business cards.

If we set standards for training, expertise, and qualifications and enforced them for mediators as stringently as we do for doctors or lawyers then mediation standards would increase. Client satisfaction with the process would go through the roof, because the layperson would have to put in effort to see the process work. Fewer cases would go to trial, because the experienced professionals worthy of the label “mediator” would actually be able to use it.

Unfortunately, because we love to keep the playing field open, and want to see anyone become a “mediator,’ we will dilute the meaning of a very precise term in dispute resolution. And when words have no meaning in an alternative dispute resolution process, as they often do in real life, it’s easy to see why Mediation is Dead.

Saying You’re “Neutral” Doesn’t Make You A Mediator

Neutrality is the cornerstone of mediation. A mediator is to remain “neutral” to all parties during the dispute resolution process. This is to give the illusion that all sides are heard and respected as the parties work to a solution.

Saying you’re neutral and actually being a neutral are two different animals. It’s easy to utter the word as a magic cure all whenever your impartiality is questioned. Actually being neutral requires you to take both parties as equals and listen to them without bias or prejudice.

Consider the following scenario and see if you think the mediator in this scenario is a “neutral.”

An attorney and client are involved in a fee dispute. The mediator, prior to the attorney’s arrival, has a copy of the Rules of Professional Responsibility dealing with fee disputes printed out and placed in front of both parties, with what the mediator deems relevant sections to the dispute highlighted.

During the mediation, the neutral continually utters her neutrality while giving the majority of eye contact to the client, rather than listen to both sides equally. The mediator encourages the attorney to lowball an offer to settle the dispute. When the client disagrees with the amount and actually requests the attorney be paid higher, the mediator says “sometimes attorneys do discounted work for their friends and family.”

On examination of the work performed, the mediator makes comments to the attorney about his lack of knowledge on the relevant areas of the law, going so far as to call him “ignorant.” This mediator tells the attorney his conduct is illegal and unethical if he proceeds in a certain fashion, because that’s “the law.” Moreover, the alleged “neutral” even questions the value the attorney’s services added during certain months!

This isn’t neutrality. It’s the farthest thing from it. It’s not just evaluative case analysis, it’s not even arbitration, it’s outright advocacy for one party masked as a form of mediation. That a party can simply smile and say “Remember, I’m the neutral in all this” is a slap in the face to alternative dispute resolution.

Real neutrality takes hard work. Maintaining a semblance of impartiality is crucial to the process, and yet it takes one mediator like that described above to cost everyone their trust in alternative dispute resolution. If I had been part of such a scenario, I would have exited the bargaining table double quick, asked for a different mediator, or gone to a judge and asked for an Order of Reference if the other party could not agree to a different mediator.

Adding to the problem with the above hypothetical is the “mediator” commenting on the law, and one party’s alleged grasp or lack of expertise in that field. That violates neutrality rules, denigrates the legal profession, and contributes nothing to the public’s trust in the process. Several states, including my own, would call that sanctionable conduct for mediators.

Make sure your mediator is one who works to listen to both sides, even the one you don’t like. Otherwise, you run the risk of finding yourself subject to the bias and prejudices of a mediator who will pressure you in an unfair fashion to settle a case that will lead to buyer’s remorse on signing the deal.

And to my fellow practitioners of Alternative Dispute Resolution: repeating the words “I’m a neutral” or “I’m neutral” are hack, played out, and carry as much meaning these days as “I was in fear for my life” when a cop shoots a person dead in the street. It’s eventually going to a judge, and that judge is going to determine the mantra of “I’m neutral” carries as much weight.

A lack of neutrality, and outright advocacy, is one more reason why Mediation is Dead.