What's New
High Conflict Mediation and Ethics (1/30/12)
Ann Begler
Working with high conflict people requires skill that goes well beyond facilitating a conversation. Some mediators do it well and some should never try. If a mediator sees it as his or her responsibility to make a fair assessment about competency in this regard, everyone is well served – clients, mediator and the system, itself.
Mediation in Ireland: Current Trends, Future Opportunities: Part 2 (1/16/12)
Caitriona Heffernan
This is the second article in a two-part series about mediation in Ireland. This article focuses on the current approach to training and accreditation and also looks toward the future.
Guest Blogger! Ray Shonholtz on Occupy Wall Street (1/10/12)
Brad Heckman
Folks, enjoy my very first guest blogger, mediation visionary Raymond Shonholtz, founder of Partners for Democratic Change and Community Boards. Ray based this post on his keynote address at the Oregon Mediation Association conference on November 4th.
ADR and the Occupy Movement: The Importance of Dialogue (12/12/11)
Chris Poole
The Occupy Movement has dominated headlines for the past several months and garnered significant attention. Though the movement is inherently political and certainly controversial, there did emerge themes from Occupy that echo values long held in the ADR community.
Taking the "Me" Out of Mediation (10/24/11)
Delores Manwar
The "Me" impacts many areas of the mediation process. We can leave the “Me” out of mediation and replace it with an armor of understanding, empathy, open mindedness, and non-judgmental practices.
Reading the Clouds – Secure File Sharing in ADR Cases (9/20/11)
James Melamed
You can now affordably take advantage of your own secure file sharing “cloud” for case collaboration. You can designate secure cloud folders per case, including email notification of new uploads to authorized users. This supports ongoing 365/24/7 attorney and party involvement in ADR cases, with security, elevated services and substantial cost savings.
Counsel and Client Penalized for Failure to State Demand Prior to Settlement Conference (9/20/11)
Keith Seat
A federal magistrate imposed attorneys’ fees and costs on plaintiff and her counsel for failing to provide a written demand and other information in the format required prior to a settlement conference with the magistrate. During a 3-1/2 hour settlement conference, plaintiff refused to budge from the $150,000 demand she had made months earlier. The magistrate refused to find that the negotiations were in bad faith, but did conclude that if defendant had known in advance that plaintiff’s position was firm, the voluntary settlement conference might have been cancelled. Relying on Rule 16(f)(1)(C) rather than three other bases, the magistrate awarded the attorneys’ fees and travel costs of defendant’s counsel, but not the lost time of the corporate representative, and then reduced that amount because defendant could have been proactive in contacting plaintiff to determine her position. The magistrate refused to include the $5,400 defendant spent preparing the sanctions motion, resulting in total sanctions of $3,300.
Snydman v. Amper, Politziner & Mattia, LLP, No. 10-1344 (U.S. E.D. Pa., July 15, 2011)
Predators and Punishment (6/05/11)
Stephanie West Allen
An article abstract on legal responsibility and psychopathy.
Use fMRI to Measure the Usefulness of Conflict Resolution Programs? Me, I Don't Think So! (5/23/11)
Stephanie West Allen
Irrelevant Facts (4/03/11)
Phyllis Pollack
I finally had the opportunity to read the book my colleague Victoria Pynchon, J. D., LL.M, recently published, A is for Asshole – The Grownups’ ABCs of Conflict Resolution (Reason Press 2010) and discovered that I should have read it much sooner as it is delightful!
California Supreme Court Allows Use of Mediation Confidentiality as Shield to Avoid Legal Malpractice Claims (3/21/11)
Keith Seat
Continuing its strict interpretation of California’s broad mediation confidentiality statute, the California Supreme Court rejected the appellate court’s creation of a judicial exception, and prevented a party from using his private communications with his attorneys before and during a mediation in a later action for legal malpractice. The alleged malpractice involved claims that the party’s counsel had conflicts of interest and coerced him to settle for too little. Although private conversations during the mediation between the party and his attorneys did not involve the mediator or other party (or reveal anything said or done in mediation discussions with the mediator or other party), the Court relied on the plain language of the statue to conclude they were confidential nonetheless and that any exception must come from the legislature. The confidentiality statute only applies to civil actions, however, so would not protect an attorney from use of mediation-related oral communications in a criminal prosecution for fraud.
Cassel v. Superior Court, No. S178914 (Cal., January 13, 2011).
One to Watch on “Federal Mediation Privilege” (3/21/11)
Keith Seat
A federal appellate court has accepted an immediate appeal on a discovery ruling by the trial court that there is a “federal mediation privilege” under which documents from mediation proceedings are privileged, but documents from arbitration proceedings are discoverable.
Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, No. 957 (Fed. Cir., January 10, 2011)
N.D. of Texas Issues Temporary Restraining Order Enjoining FINRA Arbitrations (3/07/11)
Victoria VanBuren
The Northern District of Texas has issued a Temporary Restraining Order enjoining multiple arbitration proceedings before the Financial Industry Regulatory Authority (FINRA)
A Connecticut Mediator In A Kangaroo Court?: Successfully Communicating The “Authorized Practice Of Mediation” Paradigm To “Unauthorized Practice Of Law” Disciplinary Bodies (12/27/10)
Paula Young
This article analyzes the disciplinary proceeding brought against Dr. Resa Fremed and the statutes and precedent on which the Connecticut Statewide Grievance Committee relied in finding that she had engaged in UPL. The analysis is highly critical of the decision.
“Churning” The File: An Unprincipled Mediation” (12/13/10)
Phyllis Pollack
A few weeks ago, I, unwittingly, conducted a “bad faith” mediation. One of the parties was clearly there with a dishonest purpose and an intent to seek an unconscionable advantage.
Stulberg, Joe: Teaching Conflict Resolution - Video (11/28/10)
Joseph Stulberg
Joe Stulberg emphasizes his love of teaching and notes that the teaching methods used in conflict resolution and mediation trainings are innovative techniques within the field of pedagogy.
Eleventh Circuit Construes Mediation Confidentiality Narrowly (10/12/10)
Keith Seat
The U.S. Court of Appeals for the Eleventh Circuit upheld an award of attorneys’ fees based in part on the fact that defendants did not offer to settle, despite plaintiff’s objection that such information should not have been disclosed from the mediation between the parties. However, the Circuit Court held that the applicable mediation confidentiality rules (M.D. Fla. L. R. 9.07(b)) only prevent statements made by a mediation participant from being used against the interest of that participant. In this case, the court did not rely on any statement of plaintiff during the mediation.
Angiolillo v. Collier County, No. 10-10895 (11th Cir., August 25, 2010)
ABA Ethics Committee Analyzes Mediators’ Duty of Care in Drafting Agreements (9/28/10)
Keith Seat
The American Bar Association’s Standing Committee on Mediator Ethical Guidance issued an opinion on the level of care mediators must take when unrepresented parties request them to draft settlement agreements. While the specific context of the opinion is divorce mediation, much of the analysis would be similar in other contexts, since the Committee construed the general Model Standards of Conduct for Mediators rather than the Model Standards of Practice for Family and Divorce Mediation. Among other things, the opinion discusses the mediator acting as scrivener, moving beyond that role by suggesting provisions, providing legal information or offering actual legal advice.
Federal Court Awards Costs for Failure of Corporate and Insurance Reps to Attend Mediation (9/28/10)
Keith Seat
A federal trial court in South Carolina sanctioned defendants for not having a corporate representative present at mediation, as required by local rule, and for having an insurance representative only participate by telephone without permission of the court. The court awarded full travel expenses, attorneys’ fees and mediation fees, as well as $2,000 of the $7,500 asserted as lost income by plaintiff for attending the unsuccessful mediation.
Barnthouse v. Wild Dunes Resort, LLC, No. 2:08-CV-2546 (D.S.C., August 5, 2010) (Subscription Required)
Ninth Circuit Affirms that Confidentiality Provisions Shield Alleged Legal Malpractice During Mediation (9/28/10)
Keith Seat
The U.S. Court of Appeals for the Ninth Circuit affirmed the Oregon district court’s grant of summary judgment to a lawyer against claims by his clients that he had committed malpractice by advising them against settling a case in mediation that they subsequently lost in court, because the evidence against the lawyer was inadmissible due to Oregon’s mediation confidentiality statute. The appellate court concluded that there is no confidentiality exception for clients to challenge their attorney, and without the confidential mediation communications there was no evidence of legal malpractice.
Fehr v. Kennedy, No. 09-35768 (9th Cir., July 16, 2010)
Howard Bellman: Mediation Past, Present, and Future - Video (9/27/10)
Howard Bellman
Howard Bellman speaks of how the mediation field has become more mainstream, though it's original intention was to be more radical and counter-culture. He believes the field will continue to grow.
Singer, Linda: Mediation "Catching On" - Video (9/04/10)
Linda Singer
Linda Singer describes the infiltration of mediation into the legal establishment, the resistance and acceptance of this phenomenon.
Howard Bellman: Views on Society and Conflict - Video (7/03/10)
Howard Bellman
Howard Bellman describes his politics regarding mediation and conflict within a society. His view is that a society should be diverse and accepting of different opinions and viewpoints, a society where conflict is allowed, yet they are addressed.
Michael Lang: Practitioners Not Thinking Critically - Video (7/03/10)
Michael Lang
Michael Lang talks about how many mediators lack awareness about their own process and this troubles him.
