Randy Lowry: Growing Popularity of Mediation in Court System - Video (3/18/10)
L. Randolph Lowry
Randy Lowry describes the growth and integration of mediation and negotiation into the court system to where judges want to be trained

Juvenile Offender Mediation Program Expanding as Success Shown (3/16/10)
Keith Seat

A mediation program which brings juvenile offenders face to face with their victims has been highly successful in Bridgeport, Connecticut and has expanded to the courts in Stamford, Danbury, Waterbury and Norwalk. The program reduces recidivism by more than half by having juveniles dialogue with and try to explain themselves to the people affected by their crimes, generally resulting in offenders accepting responsibility. Agreement is reached in about 95% of the mediations, with victims empowered by being able to speak to the young people, as well as having significant input into reparations and remedies, which may include apologies and community service.

Newstimes.com (January 24, 2010)

Litigation-Focused Counsel May Undermine Mediation (3/16/10)
Keith Seat

Both the success rate and the satisfaction level of parties in mediation may be declining due to the efforts of counsel to exert more control over the mediation process. Counsel are tending to move away from joint sessions, preventing principals from engaging with each other, and are focusing only on legal issues and the bottom line, to the exclusion of other interests the parties may have. Counsel may also try to game the mediation, which can harm the process for all participants.

Daily Journal.com (January 15, 2010)

Andrew Schepard: Aborigine Model Processes for Handling Child Neglect/Abuse - Video (3/16/10)
Andrew Schepard
Andrew Schepard describes how Aboriginal tribes have an optimal process of dealing with child neglect and/or abuse. If abuse is reported, a family group conference may be called; they have the choice of opting out of the coercive court system, which he sees as a model approach.

Two New Blogs To Help You "Win" Your Settlement Negotiation (3/15/10)
Victoria Pynchon
Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.

Toward Better Client Service: A Few Questions For Outside Counsel (3/15/10)
John DeGroote
March 11, 2010Toward Better Client Service: A Few Questions for Outside Counsel In a world of alternative fees, law firm convergence, the ACC Value Challenge and more, what does the client really want? Is it lower fees, predictable expenses, more “value” for the company’s legal dollar, or something else? What’s the best way for a law firm to respond? It turns out that clients are eager to share the answers to all these questions — all you have to do is ask.

Ann Milne: Quality Mediation Takes Time - Video (3/07/10)
Ann Milne
Mediators have an obligation to educate future mediators and the public about mediation and this is a process that takes time; some courts put pressure on mediators to settle in a certain number of sessions and this creates muscle mediation, or forcing the parties into settlement.

The Pitfalls Of Evaluative Mediation (3/01/10)
Phyllis Pollack
On Friday, February 5, 2010, I helped a colleague who teaches a mediation clinic in a local school by coaching some of her students conducting a mock mediation. That is, I observed the students conduct their first mediation (using a fact pattern given out by the professor) and provided suggestions. Each of the student mediators approached the task differently, but, they were all evaluative–telling Plaintiff she did not have much of a case and would lose. They each just conveyed this sentiment differently

What Will She Tell Her Husband? (3/01/10)
John DeGroote
When was the last time you were in mediation and the other side just didn’t “get it”? You have what you need to win the case — documents that demonstrate the fraud, confirm the negligence, or whatever — but the other side just won’t go away. You offer a few dollars so you’ll be done by lunch, but she still won’t give in. Why not?

Changes In Legal Practice And The Use Of ADR (3/01/10)
Richard J. Webb
In case you haven't noticed, the law business - the way law is practiced - has been changing at a rate uncharacteristic of the profession. Financial pressure from the economic downturn is a major contributor to this development. But change was afoot long before the subprime meltdown and stock market nosedive. The viability of the "big law" pyramid model for most purchasers of legal services has been questioned since the starting salaries of newly minted associates crossed into six figures, but only with the disappearance of easy money has awareness of the issue entered the mainstream.

In Mediation, Who Gets To Say “We’re Done”? (2/22/10)
John DeGroote
It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual: This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.

How Attorneys Value Your Claim When Making A Recommendation To Settle Or Proceed To Trial: An Explanation For The Parties (2/22/10)
Victoria Pynchon
I used to receive correspondence like this once every couple of months. For reasons not clear to me, I'm now receiving two or three a week:

Texas Appeals Court Finds No ‘Meeting Of The Minds’ In Dispute Over Mediation Cancellation Fee (2/16/10)
Victoria VanBuren
The Fourteenth Court of Appeals of Texas held that silence does not create a contract to pay a mediation cancellation fee.

Notable U.S. Mediation Cases (2/09/10)
Keith Seat
This article, by Mediate.com News Editor Keith Seat, summarizes recent legal cases involving mediation from around the U.S.

Mediate.com Featured Blogger Interview: Victoria Pynchon at Settle It Now Negotiation Blog (2/08/10)
Victoria Pynchon
Mediate.com is doing a series of articles on our Featured Bloggers. This is the featured blogger interview of Victoria Pynchon.

Understanding Your Downside Risk (2/08/10)
Michael P. Carbone
As a plaintiff in litigation, it is hard to imagine anything more frustrating than to get to the end of the road and to learn that you are may be the party writing the check instead of the one taking it to the bank. That is what happened to the plaintiffs in Goodman v. Lozano, S162655, decided this week by the California Supreme Court.

International: More On Hong Kong’s New Mediation Procedure (2/08/10)
Victoria VanBuren
To follow up on our earlier post, here are more details about Hong Kong’s mediation initiative:

Mediation Confidentiality In Federal Court Revisited (2/01/10)
Phyllis Pollack
Recently, I came across the unpublished decision in Benesch v. Green, 2009 WL 4885215, Case No. C-07-3784 EDL (N.D. Cal. Dec. 17, 2009) (“Benesch”)(Benesch v Green ) in which the Honorable Elizabeth D. La Porte, United States Magistrate Judge, relied wholly on the California statutes and case law in rendering a decision on mediation confidentiality. It caught my interest because, although a federal case, it applied California law on mediation confidentiality.

New Information: One Way To Help Your Client Save Face (2/01/10)
John DeGroote
The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.

Expansion of Florida Statute Requiring Mediation Notice Applied Retroactively to Insurers (1/26/10)
Keith Seat

A Florida appellate court determined that amendment of a Florida statute expanding mediation requirements to commercial residential insurance policies, such as condominium associations, applies retroactively to contracts formed prior to the amendment. The court analyzed a balancing test to determine whether the impairment of the contract is constitutionally tolerable, and concluded that impairment is minimal since mediation is non-binding, mediation costs are less than conducting an appraisal, insurance is already regulated, and there is no immediate harm or ongoing change in the contractual arrangements. The court found that minimal impact was outweighed by the state’s express purpose in expanding mediation requirements to address a substantial economic issue.

Florida Ins. Guaranty Assoc. v. Devon Neighborhood Assoc., 2009 WL 4283084 (Fla. App. 4 Dist., December 2, 2009)

Initiating The Dance (1/25/10)
Phyllis Pollack
Often, during a mediation, I have asked a party if she wants to make the first offer. More times than not, especially if it is the defendant, the party tells me that she wants the other party to go first on the rationale that it is a sign of weakness or some similar explanation for her to make the opening offer.

The Mediator’s Proposal Roundtable: The Good, The Bad, The Ugly (1/25/10)
Steve Mehta
Recently the topic of the mediator’s proposal came up in a topic of conversation. Several people had different views on how the proposal should be made, if at all. I decided that this might be a nice topic for a Mediation Roundtable. The format of the roundtable is that I have given each mediator 5 questions. Each mediator’s answer will be in its original form, unedited, and together. This will provide you with several different views on one topic in one place. As such, I am presenting to you the topic of Mediator’s Proposal Roundtable: The Good, Bad and Ugly.

Appellate Mediation Experience Differs Across States (1/19/10)
Keith Seat

Mediation programs for litigated cases on appeal are developing around the country, such as the pilot mediation program beginning in Maryland’s Court of Special Appeals. Maryland hopes to reduce the 1,300 civil appellate cases heard each year by the court, and will conduct its pilot program for at least a year. However, a pilot appellate program in the Arkansas appellate courts has been slow to develop. After a year, only a couple of appellate cases have been mediated in Arkansas’s voluntary program. The state supreme court justice who oversees the program suggests a key difference is that Arkansas does not have the congested court dockets of other states.

Daily Record (November 22, 2009); Arkansas Times (November 19, 2009)

Archdiocese Resolves Nearly All Clergy Abuse Cases Through Mediation (1/19/10)
Keith Seat

The latest figures from the St. Louis Archdiocese show that it spent $350,000 last year on victims abused by priests and more than twice that on its lawyers, although over the past ten years victims received $7.6 million while its lawyers were paid $5.9 million. The archdiocese set up a mediation program in 2003. An attorney for the archdiocese states that it attempts to address credible cases through mediation and has resolved up to 90 percent of the cases that way.

Kansas City.com (November 16, 2009)

The Use And Abuse Of The Joint Session (1/18/10)
Michael P. Carbone
Traditionally, mediations of litigated cases begin with a joint session in which the mediator invites both sides to explain their case. The mediator moderates the discussion to insure that each person has an opportunity to speak without interruption. Time may also be provided for rebuttals or to pose questions to the other side.