Mediation of Lawsuits: The Top 5 Things that Tick Me Off!

This post was authored by Brian Nash and posted to The Eye Opener on April 25th, 2011.

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Having practiced law now for almost four decades, I’ve been involved in the resolution/settlement of thousands of cases. When I was a much younger lawyer, we didn’t have formal mediation sessions. We would  just talk with the other lawyer, pick-up a phone or sit down with the claims adjuster and just worked it out. Now the in-thing is formal mediation.

For those who may not be familiar with the mediation process, in the context of our firm’s areas of practice, it is basically a formal meeting involving all parties to a legal dispute, who hire an independent person called a mediator, to try to resolve the dispute between the parties through settlement. The intent is to avoid the risk, uncertainty and expense associated with taking the dispute to trial.

There’s no doubt in my mind that a good mediation session settles some cases that might otherwise be difficult to work out. That being said, I seem to be running into some trends over the last couple of years that are – quite frankly – starting to really p**s me off!

Normally, I would keep my lawyer-rants to discussions with those in my law firm or with some lawyer pals, who share the same frustrations. Recently, however, I read a post by a legal blogger – a blawger (a lawyer who blogs), Scott H. Greenfield, who took to task legal bloggers for not taking a stand on issues. His blawg is titled Dead Lawyers Have No Enemies. I decided I would do the Lazarus thing and take a stand on an issue that’s been bugging me for some time – modern day mediation and mediators.

In no particular order, here is my list of the top 5 things about mediation that just tick me off:

1. No meaningful discussions before the mediation session

How many times now have I heard the mantra -”No, we don’t want to engage in any settlement discussions (interpretation – no first offer) until we get to mediation.” Far too many times I’m afraid. Why is this? Can’t people get the process started before mediation so that we all can make an intelligent decision as to whether formal mediation has a chance of working or whether the upcoming mediation has all the ear-markings of a waste of time and money?

Here’s the mediation scenario: The clients have to miss work or otherwise be inconvenienced to be at mediation. Many times we have to travel some distance to attend. We sit through the mandatory (but necessary for the clients) introduction by the mediator advising those new to this process who the mediator is, what his/her background is, what the process is all about, how it’s confidential and nothing said can ever be used outside the mediation session. The confidentiality form is signed and the parties go to their separate rooms.

On behalf of my clients (the party bringing the lawsuit), we make a demand. After some time passes (which varies greatly depending on the mediator), the first offer is made. Lately, more often than not, the offer is some ridiculously low-ball amount. The mediator tells you and your clients: “Don’t take it personally. They’re just trying to send a message” You fight every instinct welling-up inside you to send your own message by just walking out. After getting control of your own emotions, you try to calm your clients down. Not easy to do sometimes – for instance when (by way of a real life example) my clients just been told their dead child is worth $25,000. Of course that’s not what’s being said by the defendant’s insurer, but that’s exactly how it resonates – in this example – with the plaintiffs, who do take it personally.

There’s no doubt that when as a plaintiff’s lawyer you make a demand that’s simply ridiculous, you somewhat deserve to get low-balled in Round 1. However, when you purposely try to put a reasonable number on the table – albeit giving yourself room to negotiate, it is enraging and detrimental to the process on many levels when you get low-balled by the defense. Apparently, the defense doesn’t believe you actually tried to make a reasonable initial demand. They take a reasonable demand as a sign of weakness in the plaintiff’s case. Yet, if I were to take the other approach and start with an equally outrageous demand in Round 1, I would never hear the end of it from the other side. Sure – “reasonable” is in the eye of the beholder, but skilled advocates generally have a sense of the range it takes to be in at the end of the day to settle any given case.

My free advice: If mediators were doing their job, they would get the negotiations underway before the first formal mediation session. My suggestion: let’s get all the foreplay out of the way before the formal mediation session. If it’s going to be a waste of everyone’s time, then let’s put our efforts and money to better use and not mediate in the first place.

2. The Defense not understanding the impact of their conduct

Having been a defense lawyer before switching sides (referred to by insurance adjusters as “going to the dark side“), for years, I didn’t sit in the room with the injured party when we sent the first offer (and the second and the third and….) into the plaintiff’s room. Had I been a fly on that room’s wall, maybe I would have realized a lot earlier just what impact our “message” was going to have on that injured party, whose case we claimed we were trying to settle.

As the years went by and I saw some plaintiff lawyers packing-up their bags and heading-out with their clients as a response to our message offer, I started to get it. Call me a “slow learner,” but at least I had my epiphany.

Now that I am sitting with the injured person who brought the lawsuit, let me share a bit of advice with my colleagues on the other side. Don’t p**s off the plaintiff and in turn his/her lawyer by sending the wrong message. Does any defense lawyer or risk management person really believe the plaintiff wants to hear: “Your dead child (or replace with – your injured child, your missing leg, your paralyzed son – and every other injury that has befallen a plaintiff) is worth $25,000 or $50,000.”

Now that I’ve been sitting with these injured or grieving people for years, I get to see firsthand  just what kind of impact a low ball, “message offer” has on people. It starts the process out on the wrong foot. You – as the lawyer representing the injured person – have to try to remain calm in order to calm your client down. You try to convince them that this is just a game being played and they shouldn’t read anything into it. Well, Dear Defense Lawyer and Claims Person, it is not a game to the person who’s been injured!

Apparently many defense lawyers are relying on their bible, Mediation 101, which ostensibly tells them that when they are in the initial general session, the defense should tell the plaintiffs just how sorry they, the defense, are for the injuries and losses the plaintiffs have suffered.

Well here’s some free advice from the dark side: With the first chance you have to show that this empathy was really sincere, don’t slap the plaintiffs in the face with a low ball, message offer. It’s not a good technique!

If you, the defense, take this approach, you have completely lost all credibility, the war is on and now it will take hours of worthless and unnecessary haggling to get to where this all could have started if the parties had started out in good faith efforts to negotiate. Hopefully, Advanced Mediation Technique – 201 will be coming out soon!

3. Mediators who are nothing but high-priced messenger services

Finding a qualified mediator seems to be getting harder and harder. The good ones seem to be booked-up for months to come. Maybe that’s because they are good. Why does it seem to me that every retired judge now thinks that he or she is a qualified mediator? Sorry, Former Member of the Judiciary, but you are not all qualified. Some are; some are not.

How many times have the litigants experienced a mediator who simply walks from room to room and delivers the latest offer or the latest demand? My answer: way too many times! If I need a courier, I’ll hire a courier. They are a heck of a lot less expensive and could be equally effective.

Since so many of us “in the trenches” are searching for skilled, qualified and effective mediators, who don’t cost an arm and a leg (and dramatically increase the costs of the case), a lot of newbie mediators are among the selection pool. Well, I for one am not interested in a mediator getting his or her training-wheels on my client’s case. Can’t there be some universally accessible databank or message board or listserv in today’s digital age where litigators can freely express their views, comments and criticisms of mediators so that litigants can have a real choice of qualified, reasonably priced and effective mediators? Maybe I’ll make that my next project – in my spare time.

4. Using mediation as a “feeling out” session

I cannot tell you how many times I have gone to a mediation session where the goal seems to be that one side – usually the defense – wants to get a feel for just how much it’s going to take to get the case settled or to get a feel for the plaintiff and how they will come across to a jury if the case doesn’t settle.

Sorry, but mediation is not discovery! If the defendant’s insurer or claims person wants to gain these insights, then they should take the time, in serious cases, to attend the plaintiff’s deposition. If they can’t be there, maybe they will be interested to learn that there’s new technology called a video deposition. It’s only been around for years!

In this same vein, it fascinates me when I hear a messenger mediator tell me some of the justifications for why a low-ball offer being made is well-founded. The mediator (particularly those in the messenger class) takes as gospel so-called facts about the case from the defense and conclude they are being reasonable – or even magnanimous – when these facts are nowhere to be found in the evidence of the case being mediated!

Recently, I had a defendant and its settlement team of lawyers and adjusters, totally enamored with their causation defense (admitting in essence the caregivers had totally failed to follow acceptable standards of good medical care but claiming – “our conduct, which we recognize was awful, didn’t cause your client’s injuries”) that drove the entire negotiations toward abject failure. After hours of meaningless back-and-forth, small, incremental offers and demands, the whole mediation session fell apart.  If the mediator had truly known the real facts of the case, he would have realized that this so-called defense was in large part predicated on a defense expert’s unfounded opinion. Truth be known, that “expert” had totally failed to read our client’s subsequent care records, which disprove his baseless opinions.

Should I have told the defense where they were wrong? Or – should I save this information for cross-examination if I honestly believe the case is not going to settle and I will have to try it? Tough call – but I opted for the latter course since the negotiations were going nowhere fast anyway. I made a judgment call that the reserve put on the case by the healthcare was so low that this case would not settle no matter what they learned that day.

Mediation sessions are intended to resolve cases, not act as a session for the claim’s representative to figure out what the case is about! Just how many serious cases do these claims people have that they can’t come prepared for mediation? How in the world do they set a reserve on a case not understanding the medicine (in a medical malpractice case) of the case?

A free, albeit unsolicited message for our claims brethren: If you don’t or can’t understand the medicine before you put a value on it, learn the medicine from your defense lawyer. Isn’t that what you are in part paying for when you pay their hourly fees? Really know your file and question your defense counsel about their recommendations. Simply put – come to mediation understanding the facts and the law as best you can. Don’t see mediation as just another opportunity to spend a day out of the office.

5. Mediators who don’t, can’t or won’t challenge the positions of each side

Maybe this is a corollary to my “don’t be just a messenger,” but it holds a special place in my heart– so it makes the list. I can’t tell you how many mediators announce during the initial, joint session (where all parties and counsel are present) that they are not advocates for one side or the other. Well that’s fine; however, there comes a time when the position of one party or the other needs to be challenged by the mediator.

Messenger Mediators just listen and are often blindly impressed by the arguments of the lawyers for each side. Here’s the problem – a good mediator needs to be able to understand the validity – or lack thereof – of those arguments to be effective. If a mediator doesn’t understand the law or the facts of a case well enough to challenge either side’s position, then what purpose do they serve?

Admittedly, a mediator cannot possibly know the “facts” of a case as well as the litigants. That does not mean, however, that they should simply show-up and facilitate a settlement by trying to act as a middleman in reaching the “sweet spot” of dollars that both sides are willing to accept to reach a settlement. While this approach may work in some smaller cases, it simply does not work in more complex and higher value cases.

Some of the best mediators I have had the pleasure to work with listen to the arguments, analyze the relative strengths and weaknesses of those positions and then challenge the parties and lawyers by questioning the validity of their arguments and position. When that’s done, it is amazing how progress is made toward a resolution of the case. Simply put, good mediators cut through the posturing and puffery and expose the weaknesses of each side’s case. The only way that can happen is if the mediator has taken the time to really learn the case. In my field of medical malpractice, that may mean taking the time to read the key medical records, key depositions or whatever other “evidence” each side believes supports their respective position and using that knowledge to cut to the heart of the issues.

Sure – it may mean paying a mediator a bit more for their time, but if it gets a settlement done, isn’t it worth it? I for one would rather spend money for a mediator who can perform this type of service than one who spends hours in the mediation session just listening to a party’s specious arguments, getting a new offer or demand and then doing the shuttle diplomacy gig. Way too often, this time-consuming shuttling from one room to the other doesn’t work. The mediator’s time “in the room” would be much better spent by questioning, probing and dissecting the relative positions of each side. That – in my experience – works more often than not and gets the case settled. Every case has weaknesses for all parties involved. So – Mediators – find the weaknesses, expose them and use them to bring reality to the mediation process in order to get it done. You don’t have to be an advocate, but you do need to be pro-active.

What are your pet peeves?

This blawg rant is not intended just for lawyers or mediators. I’d love to hear from people – like clients/parties to a lawsuit, who have participated in today’s modern marvel – formal mediation sessions.

Lawyers and litigants – plaintiff and defense – what is it about mediation that you think needs to be fixed? Maybe if we all put our heads together, we can make this a more meaningful process for everyone.

Related Posts:

One More Mediation Pet Peeve, John Bratt, Miller & Zois

 

 

 


 

 

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12 Responses to “Mediation of Lawsuits: The Top 5 Things that Tick Me Off!”

  1. John BrattNo Gravatar says:

    6. The defense brings an adjuster/claims rep who does not have full authority to settle the case. I hate when you sit there while the adjuster is on the phone to whoever in the claims office actually holds full authority, trying to get more money from somebody who is not there, does not know the case, and can’t be beaten on by the mediator effectively. It’s easy to say no from 1500 miles away without looking the plaintiff, his legal team, or the mediator in the eye. So much of what makes a mediaton effective is having everyone there, invested, and working on the process. An outsider who actually has yes/no authority makes it much more difficult to get anything done. Especially on a claim that has not been reserved correctly from the start. Getting that wrong assumption corrected without the decision maker there is tough to do.

  2. Brian NashNo Gravatar says:

    John

    First of all, very much appreciate your comment and couldn’t agree more with “#6″ – I understand that if a major, national insurer can’t be at 2 or even 3 mediations at the same time, BUT….there simply has to be more work on the front end so that this issue doesn’t surface or at least is a very rare occurrence. I firmly believe that the issue of proper reserving is at the heart of this problem. Don’t know if you saw the article I wrote for the Maryland Association for Justice entitled “A View from the Shady Side,” but it does offer some insights and suggestions on how to potentially avoid the problem of under-reserving a case. http://www.nashandassociates.com/Maryland-Association-For-Justice-Article.pdf.

    At least it’s a suggestion as to how we, as plaintiff lawyers, might take steps to avoid this problem.

    Brian

  3. shgNo Gravatar says:

    Glad to have inspired you to get this out. Not only are you right, but if “experienced” lawyers like you don’t call it like it is, then things just continue as before and nothing gets better.

    As an aside, I’ve been doing small claims arbitration in Manhattan since the 80s as pro bono, and had remarkable success settling cases using the very methods you discuss, the most important of which was to play an active role in making litigants understand the flaws of their claims and defenses, and the risks they take going to trial. It’s amazing how a little incisive criticism gets people to wake up and come to grips with reality. Neither side gets to play the game.

    The mediation “industry,” however, doesn’t work on the tough love theory, but rather the “I’m okay, you’re okay” theory of hugs and kisses. It doesn’t seem to occur to these holistic mediators that this is litigation, there is a right and wrong in there somewhere, and their job is to resolve it, not make everybody feel good about themselves. It’s like going to a therapist when you need surgeon.

  4. MarthaNo Gravatar says:

    Excellent article – and you have very accurately described many of the inherent problems of mediation.

    My question is: What happens if you hire a mediator / arbitrator to settle a family law dispute, and they do not do their job properly? What remedies are available to the client who hired the mediator, and is there a process by which you can force a mediator to do their job, ie. mediate – make a decision – on the dispute?

    What you have neglected to mention, is that there is an obvious and inherent conflict of interest in play, when you hire a person – by the hour – to mediate a dispute. You are expecting that they will do their job, and assist in bringing all parties to a settlement, as that is what you hired them to do. However, it is much more profitable for them to prolong your dispute indefinitely.

    In my situation, my ex and I agreed to hire a mediator in order to assist us in formalizing our separation in a cost effective, amicable and efficient fashion. We wanted to avoid the formalities of the court system, and just `work it out’.

    I had no understanding that we had somehow agreed to this `formalized’ mediation process, and that I would have no independent right to terminate the services of this mediator/arbitrator without the consent of my ex-husband. The `mediator’ insisted that we each hire independent lawyers, and then gave us a list of referrals, including the names of the most notorious `pit bull’ type family law lawyers in Toronto.

    This dynamic sent us down a process which has persisted for 2 and 1/2 years, and cost our family hundreds of thousands in legal fees and expenses. The lawyers immediately went into action with frivolous `motions’, including attempts to have me declared insane and have my custody and access to my children taken away. I did make a formal complaint to the LSUC, but was told that it was highly unusual (and NOT RECOMMENDED!) to make a formal complaint against your mediator/arbitrator, while you are still in the formal arbitration process. I expressed my desire to terminate the services of the mediator, but he refused to step down, and my ex-spouse refused to consent to firing him.

    During the past 2 1/2 years, he has allowed my ex to use the system to bully me, and to inflict enormous legal bills and expenses on me. He has not made a single decision, and has acted only as a `courier of messages’ and the informer of the never-ending `process’.

    I have spent most of this period unrepresented, as I was unable to find adequate and competent legal assistance. There is not one single family law lawyer in the city of Toronto who was willing to assist me in making a claim about apprehension of bias, regarding the mediator and my complaint about his services to the LSUC.

    I formally asked him multiple times to step down, due to bias, and he refused. I informed him that I will not continue to pay his bills, and he still refused to step down, and continues to bill me for services that I have not asked for. He continues to retain the power to make any award or judgment against me, regarding our financial settlement, and has actively tried to prevent and sabotage any genuine attempt towards settlement between my ex and myself.

    So – in short – that is my pet peeve about mediators!

  5. Brian NashNo Gravatar says:

    You sure did. Sometimes I think lawyers are just so unwilling to be criticized if they put themselves “out there” or our DNA is such that we seem to be risk averse. So, thank YOU for the “inspiration.” Love your blawg too. Thought you well deserved the link so others can enjoy what you’re putting out there.

    On your own mediator experience comment, would you ever consider thinking of doing medical malpractice mediation in the Baltimore-Washington area? :-) Maybe you can give courses to some of our so-called “mediators.” they could surely use it. I’m totally not into the “hugs and kisses” variety either. I’ve had several close but not cigar mediators, who – if they had done the “incisive criticism” approach could, in my opinion, have brought these cases across the finish line. Unfortunately, they also were of the ilk that announced at the beginning – “I’m not here as an advocate for either side.” I almost wanted to leave with that announcement. Believe me, Scott, they are off my favorite list of mediators.

    Just want to say before closing, great to hear from one of the star blawgers in the blogosphere. Thanks much for taking the time to drop by and leave a comment.
    Brian

  6. Brian NashNo Gravatar says:

    Martha

    OK…let me do my “lawyer thing” at the very beginning of my reply to you – the disclaimer. I can’t give out legal advice in this type of forum. If I do, I may need a job as a “former” lawyer doing mediations. Just not allowed by ethical rules and not wise to do so either. Seems like you also have your dispute going on in Canada. I really don’t know the laws of Canada, so that is another “issue” in writing this reply. Finally, sounds like you are represented by counsel right now. Our ethical rules are very clear and properly strict that I could not give you any advice while you are represented by counsel.

    Alright, with that out of the way – you ask:

    “My question is: What happens if you hire a mediator / arbitrator to settle a family law dispute, and they do not do their job properly? What remedies are available to the client who hired the mediator, and is there a process by which you can force a mediator to do their job, ie. mediate – make a decision – on the dispute?

    I don’t know anyway in the jurisdictions in which I am licensed to “force a mediator to do their job” as you properly define it. Where we are, if we don’t like what a mediator is doing or we think they are being ineffective, or we think that have a financial, ulterior motive for plodding on at our expense – or whatever reason we might have – we simply have to say, “Thanks, but your services are no longer needed.” It’s frankly that simple.

    Sounds like you may have – what – signed some type of agreement that has restrictions in it to compel you to proceed on in the fashion you have described? Have you asked you own divorce attorney if this is an enforceable provision (again, I’m speculating that this condition or these terms are in some form of mediation agreement – I just don’t know) or what your rights are to simply make this end – at least from the mediation standpoint. I’m only guessing this from your mentioning that termination of the mediator’s services required the consent (apparently) of both you and your ex-husband. I’ve never in my career of over 35 years seen such a provision – that much I will tell you – for what it’s worth. it doesn’t mean it doesn’t exist or that it’s not binding – that’s why I strongly urge you to ask your present lawyer what your options and rights may be – if you haven’t already done so.

    Your journey sounds like the proverbial nightmare that litigants can find themselves in at times. I mean this sincerely – I really am sorry to hear about what you’ve been going through. This kind of nightmare is exactly what makes people turn on the legal system and those who try to serve it. I get it! I sincerely doubt you are having fond feelings for the process or the players – or that you ever will.

    To the extent is is ANY consolation, your comments may just help someone else who may read it. If a person is given any agreement to mediate (or any legal document for that matter), folks need to READ it and ask questions if they have any. I’m not suggesting you didn’t – this is just a general statement to the others who may read it. So many times I hear people in my profession and others as well say something to the effect – “You can read it if you want; it’s just a bunch of legal mumbo-jumbo that I have to ask you to sign so we can get started.” Then you find out the “legalese” is the beginning of a legal nightmare that seems to have no end.

    I don’t know if I’ve helped at all – I seem to doubt it. What I do want to leave you with is this – THANK YOU very much for your comments. Hearing from lawyers, mediators is wonderful and much appreciated. The fact that you were/are a party in the mediation process and shared your experience is – frankly – fantastic. Mediation can be such a great thing IF a person knows what they’re getting themselves into and IF they hire the right mediator. Otherwise, it is actually – as you seem to feel – a totally counter-productive event.

    Best of luck – I sure hope this nightmare ends soon – and better – for you.
    Brian (Nash)

  7. MarthaNo Gravatar says:

    Thanks Brian;

    It is absurd, but sadly true. The family law system in Canada has been widely criticized, even by judges that are part of the system. I have read a quote that trying to fix our family law system at this point is akin to rearranging the deck furniture on the Titanic!

    I should clarify, as well, that I am not a lawyer and not currently represented by a lawyer. I literally could not find a lawyer to agree to LET ME hire them – even at outrages fees of $600 an hour. I had 3 different lawyers representing me throughout the process, and fired each and every one of them. I am not very popular in the legal community here!

    Your advise is so valid. I have worked in law offices for over 15 years, and my ex is a lawyer. You would think that we would know better – but we did not read the contracts that we signed. I assumed that all lawyers are bound by a strict code of ethics and responsibilities, and are required in the best interests of the children.

    The way I was finally able to (hopefully!) secure a settlement, is to offer a friend (non-lawyer) a flat fee to come and represent the best interests of my children at the pre-arbitration conference. I promised double – and will pay double, once he brings us all to an amicable settlement. When our paid-by-the-hour mediator finally allowed both sides to actually communicate with each other (late afternoon), we came to an agreement in a matter of minutes. Done.

    Finally – one person with a financial incentive to end the dispute!

  8. Brian NashNo Gravatar says:

    Martha – really glad you wrote again and gave all of us the (hopefully) good news!

    I won’t even comment on the issue of “all lawyers [being] bound by a strict code of ethics and responsibilities” – other than to say – that’s one truth that should be self-evident but is not (most unfortunately) the case.

    I did learn another lesson from your comments, I will NOT be taking the Canadian Bar Exam so as to be able to practice domestic relations law (is that an oxymoron?) any time soon!

    Best of Luck!
    Brian

  9. shgNo Gravatar says:

    Hey Brian. For a while, they had me training rookie civil court judges in how to settle cases. Their ineptitude would have been shocking, but for the fact that so few of them every practiced law or had the slightest grasp of how clients thought. To call them inartful is an understatement; between their unwarranted pomposity (using fancy law talk without realizing that the litigants had no clue what they were talking about) and their inability to understand what motivated people, it was a fiasco.

    Of course, the problem with a lawyer teaching new inexperienced judges anything is that it made them feel small and incompetent, and they really hated it and resisted. Since I never saw much point in trying to teach pigs to sing, I gave up.

    I would love to do mediation and arbitration; if done right and honorably, it could be great for everybody. But then, who would want a curmudgeon like me to resolve their case when they can feel the loving embrace of a more pliant mediator?

  10. Brian NashNo Gravatar says:

    You all may want to check out a post by John Bratt – “One More Mediation Pet Peeve.” Nice post by our friend at Baltimore Injury Lawyer Blog (Miller & Zois). http://bit.ly/mJofyY. Thanks, John, for letting us know about your post. Good stuff!

  11. yalobtaNo Gravatar says:

    I have been dealing with my malpractice lawsuit for 2 1/2 years….my lawyer techniques are not to my liking, but I want this case to be over with…the defense attorneys are offering a low amount,..I asked my attorney about going to mediation, he stated that meditations are for federal cases and my case is a state case…I don’t believe that to be true. I’m going to call the bar association and ask this question.

  12. Brian NashNo Gravatar says:

    I’m not sure what jurisdiction you are in, which theoretically could be important to your situation. You say your case is a “state case.” All I can tell you is that in the jurisdictions in which I am licensed, Maryland and the District of Columbia, there certainly is no such prohibition. In fact, the courts in these jurisdictions encourage (and often mandate) some form of alternative dispute resolution before trial. Good luck!

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