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A few days ago I posted a hypothetical question about whether a mediator, after having learned (in confidence) both sides’ reservations points and concluding that no zone of possible agreement (ZOPA) exists, could the mediator tell the parties that mediation will be fruitless and end the process?

B’s answer is correct:

yes, with advance permission from the parties that caucusing could be used to determine whether there was a ZOPA, and, keeping all other details confidential, report back to them on that determination.

But, there’s a bit of analysis missing.  Sorry, B, you only get partial credit.  Remember, the job is to show that you can turn a simple yes/no question into hundreds of hours of billable work.

For those of you who are curious, the reason the mediator can’t tell the parties mediation would be fruitless is that doing so would reveal some bit of confidential information, namely that the other side’s reservation point lies beyond your reservation point.  She isn’t saying what the reservation points are, but she is still giving up confidential information which she is not allowed to do.

Likewise, a mediator should not encourage the parties to proceed with mediation, because doing so may reveal (or at least appear to reveal) information about the ZOPA.  Basically, the mediator should do nothing but keep the parties civil, and should not encourage any agreement.  Too bad that’s not how they actually train mediators.

So you can run and tell THAT, …home boy.

If I end up failing the Alabama bar it’s because I’ve spent more time working on things like this: The Six People You Meet at the Bar Exam than on learning substantive law.

Also, the morning of the MBE I woke up with really terribly heart burn and then puked about an hour later.  I may have been a little hungover, but not terribly so, and was less nervous than the previous days.  The thing is, I recognized the puke as a meal I’d eaten some 14 hours earlier.  Your stomach is supposed to empty after only about 5 hours, right?  Do I have a digestive disorder, or am I just paranoid?

It’s day two at the bar exam for those of us in the Heart of Dixie, day one for most other states.  I just wanted to take a moment and wish you all good luck on the MEE, and hope you’ve been reading up on 1983 actions and the federal E-SIGN law.  Cheers.

Just finished day one of the Alabama Bar Exam.  For those of you not familiar (ie: people with real life prospects), the first day is only 3 hours and consists of 6 Alabama civil procedure essay questions.  For the most part, there’s no really much you can say in your answers.  The fact patterns are short, and the questions rather pointed.  Explaining the rules for serving process on a minor doesn’t take that long.

And, apparently studying for it doesn’t take very long either.  I hadn’t seriously started working on this stuff until yesterday, and honestly did most of my good studying in the two hours before the exam.  It was enough time to listen to the lectures one last time and follow along in the outlines.

Now though, it’s time to go drink some forgetting juice, because the facts I crammed into my head this morning are honestly not things I really want to ever have cause to remember.

Plaintiff is suing Defendant in a tort action for negligence and the court orders the parties in mediation.  While in caucus (private meetings with the mediator) each party discloses to the mediator evidence regarding likelihood of outcome at trial and damages.  The parties agree there are even odds on which party would, and the mediator agrees.

The plaintiff has good evidence showing that he has suffered $10,000 in damages, and with a 50% chance of winning, values the case at $5,000, but is willing to accept $3500 to reduce its attorney fees, and because it is slightly risk adverse.

The defendant has good evidence showing that plaintiff only suffered $2,000 in damages and as such values the plaintiff’s case only at $1000.  But, like the plaintiff, defendant wants to reduce its attorney fees and is risk adverse, and is willing to offer $2500.

The mediator believes that both damages valuations are reasonable, and that a jury is equally likely to agree with the plaintiff as with the defendant.

Because there is no zone of possible agreement (ZOPA), the mediator knows that mediation will not ultimately result in a settlement.  After caucusing with both parties, may the mediator immediately tell the parties that mediation will be fruitless and recommend that they proceed to trial?

(Ben Corman has complained that I post questions that I either don’t know the answer to, or which simply don’t have an answer.  In this case I actually know the answer, or at least an answer I think I could argue convincingly.)

Do not confuse “provide your analysis” with “provide urinalysis.”

Alright kiddies, going to keep this one short and sweet:

Require law schools to sign as guarantors for all federal loans their students receive.

Boom.  Done.

This is for all the people who majored in philosophy in undergrad:

Stage 1: You feel excited because you’re learning fascinating new ideas.

Stage 2: You feel sad because you realize you don’t actually understand them.

Stage 3: You feel excited again, because you think you’ve finally really figured them out.

Stage 4: You feel depressed because yes, you have figured them out, and they mean your life is pointless.