Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan led an enlightening discussion this afternoon of Rule 124, the arbitration rule that really involves mediation. It’s truly unfortunate that these webinars are neither recorded for viewing by those unable to see these presentations when scheduled, nor are they accorded 31 CFR §10.6(f)(2) CPE qualification for EAs, ERPAs, and retreps. If they were so recorded and qualified, they would get a larger viewership.

Mediation, a refined form of headbanging, does provide a most useful outlet for pro ses, and even protesters, who just want to be heard. Here echoes the lament of Linda Loman in Arthur Miller’s great tragedy: “Attention must be paid!” As Judge James S (“Big Jim”) Halpern explained, he uses pretrial conferences as a chance to hear the protester out, and to acquaint them with their nonexistent chance of prevailing. Having been heard, they settle. Sort of mediation light.

But CSTJ Lewis (“Caro Nome”) Carluzzo pointed out that formal mediation wouldn’t work with pro se litigants who generally have no idea how to prepare or evaluate a case.

Maxine Aaronson, Esq., a longtime mediator from Dallas, offered the useful point that lawyers and litigants fall in love with their case. A mediator can take off their rose-colored glasses and show the warts and blems on the beloved. And, as Tax Court cases involve multiple issues and often multiple years, mediation can serve to effect settlement of even more issues and years, potentially even years not before the Court, than a formal opinion.

Of course, it was generally agreed that expert testimony cases are the best candidates for mediation; “hottubbing” the experts (even though never so-called) is the best method of trying to reach some kind of useful consensus, or to cull the incurable expert who is playing advocate. And Judge Holmes is once more vindicated, as valuation cases are best candidates for mediation.

I found the reticence of OCC’s representative, Shawna A. Early, Esq., left me questioning to what extent, if at all, OCC wants to play in this sandbox. Is OCC afraid that mediation might lead their side to give more than they might get from a judge? Of course, OCC has no worries about legal fees and disbursements.

Howbeit, I’d really like to know what my readers have experienced. Having been a mediator myself once, I found it rewarding.