How are contentious legal settlements really reached behind
closed doors? First-year students got a peek on April 12.
Whispers, Offers and Deals With the Devil: Mediation Brought to Life
It won’t air on a cable channel anytime soon, but “Real Litigants of Washington, D.C.” offered up another spectacular episode at the Columbus School of Law on April 12.
Its commonplace title, United States of America ex. Rel. Grace A. Garrett v. Twin Oaks Hospital, Inc., gave no hint of the drama packed within the story.
Grace Garrett, (above left) an unemployed medical records specialist and courageous whistle-blower, is involved in the lawsuit of her life. Win, and she gets both money and acclaim for bringing the feds down on the fraudulent overbilling practices of her former employer, Twin Oaks Hospital. Lose, and she winds up a penniless, untouchable troublemaker.
The fictitious Garrett could have leapt out of the headlines of any newspaper in America. As it happens, she is the brainchild of Columbus School of Law Professor A.G. Harmon, who for the second year has scripted and staged an intricate and convincing simulated mediation exercise that allows first-year law students a front-row seat to observe the delicate dance that characterizes most mediated conflicts.
Grace A. Garrett v. Twin Oaks was the culmination of the first-year appellate advocacy problem that lawyering skills students worked on all semester and finally got to see played out in real-life. Harmon, a published novelist, brings a professional writer’s skill to the task of creating an engaging and realistic legal teaching scenario for students.
The plaintiff, defendant, counsels and even institutions like Twin Oaks Hospital are equipped with secrets, checkered histories and hidden agendas. (Whistle-blowing hero Garrett, for example, lives in fear of the discovery that some of the methods she used to uncover the fraudulent billing practices weren’t quite legal).
As instructors in the law school’s unique Lawyering Skills Program, Harmon and Professor Olivia Farrar reached across campus to the drama department and theater majors to bring the story to life.
Two actresses from the drama department—Professor Marietta Hedges and Mimsi Janis—took the roles of the clients. The lawyers were played by first-year law students Stuart Clarke, Ellen Berndtson, and Dan McGraw. A real mediator from the D.C. Circuit, Richard Ugelow, volunteered to mediate the complex settlement between Grace Garrett, Twin Oaks Hospital and the U.S. Department of Justice, which also jumped into the case when it was determined that the overbilling charges were a matter of federal court jurisdiction.
Saddled with the expenses of two small children, no husband and no income, the plaintiff was plaintive when first addressing the mediator.
“I really need a job to support myself and my family. I haven’t worked for a year. That’s really an important outcome for me,” Garrett stated at the outset. Harassed by a vindictive supervisor after she red-flagged the hospital’s malfeasance, Garret claimed she was forced to quit.
As is common in mediation, the two sides were far apart on financial and other reparations. As mediator, Ugelow patiently led the legal combatants to shared ground. He asked questions, probed expectations, pointed out untenable positions and, a number of times, asked one side to leave the room so he could converse freely with the other.
In the end, Twin Oaks Hospital settled with Garrett alone. They offered her a different job under a new boss, agreed to pay her attorney's fees, and offered her some extra money for compensatory damages. The hospital administrators also decided to continue to slug it out with the federal government over its billing practices.
The mediator felt that with more time, he might have made the hospital reconsider the risk it was taking by not settling with the government.
“After we threw in the towel and ended it, Ugelow discussed the events with the students and the principals so that the audience could understand why he did what he did,” said Harmon.
Garrett and the cast of characters in Harmon’s legal play aside, the real winners in the room were the first-year lawyering skills students, who were treated to a gritty and unflinching look at the human factors than can and do influence the application of the law.