The Importance of Control

{3:30 minutes to read} I always stress the importance of the client's right of control in a mediated matter versus the loss of control clients experience in a litigation or in an attorney negotiated matter.

My recent, 2nd personal brush with the legal system reminded me of the 1st, and brought the concept of client control in mediation to an ever greater importance for me.

A few years before I became a mediator, and still litigated matters, I retained an attorney to petition the court for guardianship of my aunt, who was in a coma after suffering a stroke. It was uncontested in that all family members agreed with my appointment. Even with that, since abuses of the guardianship process exist, there was a hearing, and questions raised by the attorney appointed for my aunt had to be addressed. I remember that when the judge’s clerk asked the attorneys to meet for a conference, I automatically got up, and then realized I was the client and not invited.  

It was a horrible feeling to be left out of discussions that affected my life and that of my family. It was also a first-hand experience of how my clients felt out of control when they were left alone on a bench while the attorneys, without their input, talked about decisions that had a major impact on them.

Of course, the delays and the timetable, which were solely dictated by the court and over which the litigants have no control, were also frustrating. This schedule failed to address the very real issues that were arising as a result of my not being able to act on behalf of my aunt.

My 2nd personal encounter with the court system was being called for federal jury duty. I was excused as a juror on a criminal trial, but I was selected for 4 weeks of grand jury duty, a service from which very few were excused.

There are 3 permitted absences. Everything else is out of your control and subject to the scheduling and convenience of those in control of the grand jury process.

This means that you do not control your own schedule -- personal and work -- for 4 weeks because, until you hear a recorded message at 6 p.m. the night before, you don’t know what time you need to report the next day. On some days, you are there to hear only one case (taking less than 1/2 of the time of my 3-hour round trip commute), and on the other days, you have 2 - 2 1/2 hour breaks in between cases.

It became clear pretty quickly that the system is not designed with the consideration of jurors or litigants paramount. As challenging as jury service was for me, it pales in comparison to having to deal with the lack of control when your future and your children’s futures are on the line.