What's New
Intuition Or Counter-Intuition? (11/16/09)
Phyllis Pollack On Saturday, November 7, 2009, Dr. Daniel Druckman, Professor of Public and International Affairs at George Mason University in Fairfax, Virginia delivered the 5th Annual L. Randolph Lowry Lecture at Southern California Mediation Association’s 21st Annual Conference.<
To Avoid A Claim For Malpractice, California Court Says Keep Your Mediator Present At All Times (11/16/09)
Jan Frankel Schau Both the mediation and legal communities in California are abuzz about the Court of Appeals decision in Cassel v. Superior Court (Cal. App. 2 Dist. November 12, 2009)which held that attorney client communications are not protected from becoming evidence when they take place at mediation if the mediator isn't in the room at the time of the communication.
(11/10/09)
Keith Seat
A settlement agreement reached after thirteen hours of mediation was found enforceable by a Minnesota appellate court because the document expressly stated it was binding, despite the omission of precise descriptions of the land involved. The agreement recognized that additional details needed to be finalized and provided that if disputes arose over the final documentation the parties would have the mediator act as an arbitrator and decide the disputes. When issues arose, one party challenged the authority of the mediator turned arbitrator, but the court upheld both the settlement agreement and its arbitration provision.
Ed Cave & Sons, Inc. vs. City of Two Harbors, 2009 WL 2998001 (Minn. App. September 17, 2009) (Subscription Required)
(11/10/09)
Keith Seat
A five-year, $50 million construction project for a courthouse in Santa Clara County resulted in assertions of faulty construction by the county and counter-assertions of faulty design and $17 million in change orders by the contractor. After a two day mediation, the parties agreed to resolve all claims against each other and from subcontractors for payments by the county of $8.1 million. Although the county Supervisor had predicted that the county would come away with money for the faulty work, he stated after the mediation that the settlement was worthwhile to avoid the burden and expense of litigation and that it was time to let the dispute go.
Gilroy Dispatch (September 14, 2009)
Customizing The Mediation Process (11/09/09)
Michael P. Carbone Back on September 1, I wrote about the “Task Force on Improving Mediation Quality.” The Task Force, which was formed by the American Bar Association Section of Dispute Resolution in 2006, was charged with conducting an investigation to identify the factors that define high quality mediation practice. You can find their Report on the Section's website.
(11/03/09)
Keith Seat New Hampshire is adding a mediation program for civil appellate cases pending before the state Supreme Court. The appellate program will be administered by the state’s Office of Mediation and Arbitration and rely on retired judges as mediators. The program expands mediation to all levels of court, from small claims and family, to civil cases in superior and probate courts.
WCax.com (Sept. 10, 2009); Appellate Mediation Program
(11/03/09)
Keith Seat A committee of lawyers convened by the Court of Common Pleas in Philadelphia to find ways to improve the court’s landlord-tenant program recommended a mandatory mediation program, which the court is now implementing. Mediation is particularly intended to assist the 40% of pro se landlords and nearly 100% of pro se tenants who are involved in appeals, which require compliance with procedural rules that are difficult for non-lawyers. The program is now recruiting and training volunteer “settlement masters” to act as mediators, who will have access to court papers through the court’s e-filing system and can call a helpline of experienced landlord-tenant attorneys with questions.
Legal Intelligencer (Sept. 30, 2009)
Moving The Goalposts - How To Craft A Mediator's Proposal (11/02/09)
Alec Wisner In mediations involving commercial, business, contractual, employment, construction and insurance issues, the bottom line is most often dollars and cents. This is referred to as "distributive mediation," meaning that the size of the pie is predetermined, and the issue is limited to determining what size each claimant's slice will be. In my practice, I've developed a systemic method (sort of) through which I can narrow down my focus as much as possible in order to be able to insert my own proposal in a final effort to close the gap and obtain settlement.
What We Can Learn From Law Students (11/02/09)
Nancy Hudgins The American Bar Association, Law Student Division, hosts a variety of negotiation tournaments for law students. I spent a Saturday afternoon recently as a judge of an early round of the in-school competition at UC-Hastings College of Law.
Seldom Does One Size Fit All (10/26/09)
Chandana Jayalath Inter-alia the courts’ primary role is to make, interpret and define law and safeguard the public interests and social values. In contrast, ADR has come into more widespread use believing such formal processes have failed to afford real justice which would mean that parties deserve something more than what courts traditionally offer. It should not however be misled because ADR is not a panacea, anathema or a substitute to courts.
Does The Mediator Really Matter? (10/26/09)
Phyllis Pollack Recently, I was sent a study that was published in The Jury Expert (www.astcweb.org) entitled “Civil Case Mediations: Observations and Conclusions” by James A. Wall, Jr., and Suzanne Chan-Serafin.
The authors researched 62 civil case mediations in two cities to determine, empirically, whether the behavior of the mediator and/or that of the plaintiffs and/or defendants influenced the process or outcome of the mediation. The cases observed were mediated by attorneys (21 of them) and retired judges (8 of them) who had practiced law on average for 30 years and had mediated on average 606 cases over about nine years.
Mediation As Profession, Hobby Or Retired Occupation (10/26/09)
Victoria Pynchon Though I'm not wild about raising the over-discussed issue whether mediation is a profession, in writing L is for Lawyer (for the ABC's of Conflict Resolution) I had occasion to take a look at the characteristics of "professions." I thought I'd share them with my readers to add a little fuel to this long-burning fire because, frankly, L is for Lawyer is one of the most boring chapters of this book.
How Can I Get My Mediator To Be Evaluative? (10/26/09)
Michael P. Carbone I remember being asked this question a few years by a lawyer who was in the middle of a mediation of a complex case. When I asked who the mediator was, she answered with the name of a retired judge. I was surprised at first since we often hear about former judges who supposedly cannot resist the temptation to evaluate every set of facts that comes before them.<
Making Settlements Last (10/19/09)
Alec Wisner A settlement is meaningless if it the parties don't respect it. Parties who don't respect settlements simply see breach as another cost of doing business, accepting further litigation if they see the overall result to be profitable.
M3: The Future Of Mediation (10/19/09)
Phyllis Pollack In a recent blog, I mentioned that the Southern California Mediation Association (“SCMA”) will be putting on its annual conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. Entitled “M3 – The Next Generation,” (see,2009scmaconference923095) its theme is the increasing use of mediation in our society. In 1976, Professor Sander espoused the novel proposition of having a “multi-door courthouse” at the Pound Conference. (I will call this M1 or the first generation of mediation).
Can You ever Commit Malpractice In Mediation? (10/19/09)
Steve Mehta The question of whether someone can commit malpractice during mediation is recently gaining quite a bit of traction. The answer to that question lies in the philisophial riddle “If a tree falls in a forest and no one is around to hear it, does it make a sound?”
An Offer He Can’t Refuse (10/19/09)
Michael P. Carbone Marlon Brando will always be remembered for saying: “I am going to make him an offer he can’t refuse.”
Evaluative Or Effective? (10/12/09)
Michael P. Carbone I have been thinking about my colleague Victoria Pynchon's recent post on evaluative mediators. There is a saying that "less is more." Or as we are somtimes told: don't overdo it, or don't try too hard. How does this advice apply to mediators?
“Sentiment Analysis” (10/12/09)
Phyllis Pollack Last week, I discussed a study focusing on the effect of e-mediation (that is, a software program) on negotiating behavior. The study sought to determine whether a computer could mediate as well as, if not better than, a person. While the computer did reach resolution more often, people still preferred using the “live” flesh and blood mediator.
Apology Infuences Jury Verdicts, New Study Finds (10/12/09)
Steve Mehta A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct. Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them. Recent research sheds light on this issue.
Settling Personal Injury Cases (10/05/09)
Michael P. Carbone In my last post I discussed the need for thorough preparation before going to mediation. In particular, I noted the need to prepare the opposition, which may have surprised some readers. Why, you might ask, should I prepare the opposition as well as myself? Why can’t they prepare their own case?<
Sure We Can Compromise, But Can We Negotiate Justice? (10/05/09)
Victoria Pynchon The following is the conclusion of an excellent post on the recent Pfizer-Justice Department settlement noting that it met "the People's" justice interests better than a judgment could have.
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