Appellate Mediation Program Begins in New Hampshire (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

Philadelphia Court Institutes Mandatory Mediation Program for Landlord-Tenant Appeals (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.   2 Comments

Contingency Fee: The Dark Lord Of Mediation Fees Or The Fee That Shall Not Be Named (11/02/09)
Steve Mehta
Yesterday, I was in a meeting and discussing mediation services when I was shocked by what I heard. An attorney told me that a prominent mediator (He who shall not be named) in California charged a contingency fee for a mediation.

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 that 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.

E-Mediation: Will I Be Replaced By Software? (10/05/09)
Phyllis Pollack
As some of you know, I am the incoming president of the Southern California Mediation Association (“SCMA”). Before I take my oath of office, I must go through a rite of passage which is chairing the SCMA’s Annual Fall Conference. This year it will be held on Saturday, November 7, 2009 at Pepperdine University, Malibu, California.

Mediator Testifies For Insurance Carrier And Court Enforces Mediated Settlement Agreement Against Policyholder (10/05/09)
Victoria Pynchon
This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published. The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority. The no-publication order does not, however, diminish my distress about the mediator's decision to file a declaration in support of State Farm's motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings.

Apologies (9/28/09)
Phyllis Pollack
Apologies are important in interpersonal relations. Just think about the emotional turmoil caused by a person who never apologizes, never says “I’m sorry.” Probably, that person will get called some rather ugly names.

Evaluative Neutrals And Mediator's Proposals (9/28/09)
Victoria Pynchon
Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career.Ready? Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer.

Buyers Remorse In Settlement And Mediations: Seven Ways To Avoid It (9/28/09)
Steve Mehta
Recently, I read a blog post regarding attorneys coercing their clients to settle a case. On Victoria Pynchon’s blog, Settle It Now. This made me think about the issue of buyers remorse that can happen in mediation and how to avoid the issue.

Restrain The Pitbulls And Release The Attentive Questioners For Theirs Is The Kingdom Of Resolution (9/28/09)
Victoria Pynchon
A mediator who is bullying you or your client to settle simply hasn’t gotten the knack of asking questions and creating opportunities. She’s still too used to wielding power. If it’s important enough to spend your day mediating, it’s important enough to tell the mediator that you do not want her bullying any of the parties.

More Ways To Commit Legal Malpractice As A Mediation Advocate (9/21/09)
Victoria Pynchon
If you didn't already understand how to protect your mediated settlement agreement from challenge, you do now. But wait a minute! Is that what you want? What if your client entered into the agreement only because its opponent made a material misstatement of fact? What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution? Can you win the "good faith settlement" motion without the testimony of the participants in the mediation?