Yesterday’s collapse of what was ostensibly an attempted settlement conference creates many questions for me. When this is over, the blog will pursue unsealing of the minutes of these deliberations to find out what happened.
It was apparent, despite WP being characterized as a “no-show”, that the Selectmen and Town Manager were aware WP would not be attending. If there had been any expectation of their presence, Mr. Ford and the town’s attorney’s would surely have been there. As it was, it was only the Selectmen and the Town Manager.
It also seems unlikely that WP would fail to attend the meeting if they had requested it. So it seems probable that the town had invited WP and their attorneys. It is also unlikely that the Board of Selectmen would initiate a meeting with WP and their attorneys to discuss carpooling to the trial or where to have lunch.
No, this most likely was the failed result of an attempt by the Selectmen to initiate a settlement conference, and it comes as no big surprise that WP was not interested.
You will recall the open letter that WP published to the BOS and citizens of Wolfeboro in the Feb 13 Grunter. There, WP offers to participate in a mediation process. Indeed, in subsequent correspondence between the BOS and Wright Pierce, WP reiterates their position that they are ready and willing to settle, but only within the framework of a professional mediation. From what they have said publicly, Wolfeboro seems to want to settle first and mediate later. Hence the deadlock.
Continuing this string of conjecture, you have to wonder what might have prompted Wolfeboro to request a settlement conference, if indeed that is what happened. The festering issue of the integrity of the damages claim and now open question before the court of whether Mr. Ford will be allowed to define, explain and defend the damages suffered by the town might have something to do with it.
Should the court uphold WP’s objection, the town’s case would be eviscerated. It’s not hard to imagine that the judge would dismiss it. That said, at every turn my impressions of the import and substance of these issues has been that of a layman and sometimes surprised by the subtleties of the law as applied in decisions of the court.
But that’s exactly what this issue is about. The judge, in no uncertain terms, has put WP on notice that they will require expert testimony to pursue their defenses of remediation and betterment. Both topics that are intertwined with the damages claim. WP, in their objection to Mr. Ford testifying to the damages has raised that issue. They argue that the court defines these damages in such a way as to require WP to offer expert testimony, yet Wolfeboro is saying the damages are easily understood by an average person. In layman terms WP is arguing that you can’t have it both ways.
The question for all of us is:
Why did the town refuse to meet with a mediator?
What was the downside? You get a neutral legal scholar to listen to both sides, review the evidence presented, and offer an opinion about the merits of both sides. The results are non-binding and not admissible in any subsequent trial. Many of the issues in these case defining rulings that have resulted from the pretrial motions would have been raised in mediation. Call it a reality check.
For better or for worse, we’re all in.