Where's The Lemon (11/18/08)
Phyllis Pollack
It never ceases to amaze me how “coincidences” seem to happen. Last week, I was scheduled to mediate a “lemon law” case in which, while the lawsuit was pending, plaintiff was involved in an automobile accident which caused a total loss to the vehicle.

Court-Connected Mediation In Massachusetts Another Casualty Of Tough Economy (11/18/08)
Diane J. Levin
In news that has stunned the alternative dispute resolution community in Massachusetts, the Massachusetts Trial Court has terminated its mediation contracts with programs approved to provide services in courts throughout the Commonwealth.

Court of Appeal Overturns Class Action Settlement Arrived at in Mediation (11/18/08)
Jeffrey Krivis, Mariam Zadeh
The California Court of Appeal in Kullar v. Foot Locker Retail, Inc. found that the trial court abused its discretion in finding the terms of the class action settlement to be fair, reasonable, and adequate where the record failed to establish what investigation counsel conducted or what information counsel reviewed on which counsel based their assessment of the strength of the class members’ claims.

Bumps In The Road Of Maine’s New Rule Of Evidence 514: (11/17/08)
Jonathan W. Reitman
For the past twenty years of my full-time ADR practice, I have confidently said to the parties in mediation something like “Nothing that you say here can be used against you, even if we don’t resolve the dispute today in mediation.”

Some Interesting Hard Statistics (11/10/08)
Geoff Sharp
Over at Practical Dispute Resolution there is a very interesting research exercise going on.

Better Settlements From Better Information: Early Case Assessments IV (11/10/08)
John DeGroote
As we have discussed before, getting your ECA done — gathering the information required by the Early Case Assessment Checklist discussed in Part II and Part III of this series — requires an up-front investment. This post will tell you why, if you plan to settle your case, a thorough Early Case Assessment will be worth that investment.

Putting the Checklist into Action: Early Case Assessments Part III (11/03/08)
John DeGroote
In Part II of this series we outlined the 15 elements of the Early Case Assessment checklist, but a checklist alone isn’t enough. How an ECA works in practice — actually getting what’s on the ECA checklist done — isn’t quite the paint-by-numbers exercise it might seem to be. The following are 4 important ideas, admittedly based on mistakes I have made, that will make your ECA efforts more effective.

Real Lawyers Don't Eat Quiche (11/03/08)
Geoff Sharp
So in the inevitable corridor time, well into the afternoon of a mediation this week, one of the lawyers who I had last seen when I was at my law firm in the 1990's says to me; "So Geoff, when did you give up real law?"

A Tool for Multi-Party Insurance Litigation Mediation with "Additional Insureds" (10/27/08)
Jeff Kichaven
The settlement of a basic, two-party case at mediation is often hard to accomplish. When three parties are involved, the task is generally much more difficult. With multiple parties, the challenges increase exponentially.

Easier Said Than Done: Early Case Assessments Part I (10/27/08)
John DeGroote
et’s face it: new lawsuits rarely come at convenient times. At the outset, they are rarely anyone’s first priority. Soon enough, legal wrangling sets in — deadlines approach, extensions are brokered, and the plaintiff’s perspective advances unrefuted. The case becomes a problem everyone seems willing to pay $50,000 a month for until they’re ready to deal with it.

The Early Case Assessment Checklist: Early Case Assessments Part II (10/27/08)
John DeGroote

Vanishing Trials: Out-of-court Settlements on the Rise (10/21/08)
Geoff Sharp
Well, if it's true, why don't more lawyers bother to understand the art and science of settlement?

Blawg Review 181 (10/14/08)
Diane J. Levin
Welcome to Blawg Review #181, celebrating International Conflict Resolution Day. For those of you who are unfamiliar with Blawg Review, allow me a brief introduction. Hosted each week by a different blogger, Blawg Review highlights noteworthy legal blogging, sharing the pleasure of discovery of insight, news, and commentary sampled across the spectrum of legal practice.

You Can Win By Settling Halfway: Settlement Structures Part I (10/14/08)
John DeGroote
“If you are going to do a half-ass job, don’t do it at all.” My dad gave me that advice years ago, and I never forgot it. But if you have an important dispute, settling it halfway may be a victory in itself.

Going To The Balcony (10/14/08)
Nancy Hudgins
When the other side attacks you or your client or your case evaluation, one of your strategies can be to go to the balcony.

Bumps In The Road Of Maine’s New Rule Of Evidence 514:
Jonathan W. Reitman
For the past twenty years of my full-time ADR practice, I have confidently said to the parties in mediation something like “Nothing that you say here can be used against you, even if we don’t resolve the dispute today in mediation.”

California Court Side Steps Mediation Confidentiality and Stretches to Find a Settlement Agreement
Elizabeth Moreno
Counsel can no longer assume that anything that happens, especially written notes, is protected by the confidentiality provision. Even if the parties sign the confidentiality agreement at the beginning of mediation that does not mean that everything is confidential, aside from a Settlement Agreement signed by the parties.

A Loss For Mediation Confidentiality
Phyllis Pollack
       An interesting decision was issued the other week by the Second District of the California Court of Appeal on mediation confidentiality. Reading it left me with the impression that the appellate panel was result oriented or using “legal realism” rather than simply applying the governing law to the facts to lead it to the logical, mechanical and deliberative conclusion. (“formalist approach”.) (See “Blinking On The Bench: How Judges Decide Cases” – February 28, 2008 blog.)        In the...

What Can You Do if Someone Breaches a Mediation Confidentiality Agreement?
Victoria Pynchon
(image from and links to HOA Issues Solved in Five Steps) I've recently been covering mediation confidentiality from an attorney's point of view.  Because my statistics page reminds me that clients also read this blog, I sometimes direct posts to the people with the problem -- clients.   This morning I notice that someone landed on my site seeking an answer to this question: What can you do if your HOA Board member breaks the mediation confidentiality...

California Courts Let You Have it Your Way: Arbitrate and Appeal the Award
Victoria Pynchon
(while we're walking down memory lane anyway, "Have It Your Way" from 1976)  When I ask litigators why they don't choose arbitration over litigation before unpredictable judges in a crowded court, their answer invariably is "because I can't appeal the ruling."   We cling to appellate review even though we appeal fewer cases than we try -- which is a very small percentage of our case load as it is.  Not surprising, however, we litigators,...

The Trouble with Thottam: Mediation Confidentiality At Risk
Victoria Pynchon
UPDATE:  See the analysis of Thottam at May it Please the Court, noting that the "big print giveth and the small print taketh away." Before further discussing the problems created by the Thottam holding, I'm providing a "brief" of the case about which I ranted and raved earlier here today.   THE FACTS:  A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed,...

The Never Ending Story: Mediation Confidentiality
Phyllis Pollack
       On October 23, 2006, I wrote a blog entitled “When Public Policies Collide: Something to Think About” in which I discussed the appellate decision in Simmons v. Ghaderi.  That  court determined that the lack of consent by Dr. Ghaderi was more important than honoring and upholding mediation confidentiality. It held that California Evidence Code §1119 (providing for confidentiality in mediations) should not be applied such that the trial court could take evidence of what occurred during the ...

Mediation Confidentiality in New York? Not According to Hauzinger Decision
This decision concerns the unsuccessful attempt of a mediator to quash the subpoena issued by defendant for the mediator's appearance and papers at a deposition in this divorce action. Should this decision stand, mediators in New York and elsewhere plainly must promote clear and binding confidentiality legislation. The New York court ignores the parties' contractual agreement for confidentiality in favor of unbridled litigation. This decision highlights how private mediation has now come to be viewed, at least in New York, as a cog in the judicial machinery. The failure to recognize the value of mediation and critical importance of protecting parties' and mediators' expectations of confidentiality is troubling at best. This case should be a wake up call for mediators to defend the critical qualities, including effective confidentiality agreements, necessary for successful mediation.

Mediation Confidentiality: Does It Exist In Federal Court?
Phyllis Pollack
       On August 16, 2007, the Ninth Circuit Court of Appeals issued its opinion in Babasa v. LensCrafters, Inc. (Case No. 07-55880), which, while focusing on the removal jurisdiction of the Court, determined that mediation confidentiality is of no moment. For many mediators in California, the Court’s discussion is unsettling.         Factually, in April 2005, Patrick Babasa and others filed a putative class action in state court against LensCrafters, Inc. alleging various labor code...

Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?
Karin S. Hobbs
How do attorneys ensure confidentiality of the mediation process, protect their clients from motions to enforce and enter into binding deals in mediation. This article discusses the critical importance of mediation confidentiality, the application of the Uniform Mediation Act, and offers practical suggestions for attorneys to use to avoid court action regarding mediated settlement agreements.