Mediation And Social Norms: A Response To Dame Hazel Genn (6/29/09)
Charlie Irvine
The article is a response to Dame Hazel Genn’s 2008 Hamlyn Lecture, in which she characterized mediators as having ‘no interest in justice and fairness.’ The article argues that mediators’ own rhetoric has allowed this caricature to develop and suggests that, in practice, mediators are no longer indifferent to norms like justice and fairness, if they ever were. Drawing on the work of Ellen Waldman and Julie MacFarlane this article examines the role of social norms and ethical codes in mediation practice, and calls on mediators to examine their values.   1 Comment

The Dilemma Of Confidential Information (6/29/09)
Phyllis Pollack
In many mediations, I have faced the dilemma in which one side provides crucial but confidential information to me in a separate session (i.e. caucus), admonishing me “not to tell the other side.” I sense that the information is extremely relevant and may make the difference in reaching a settlement. But, I know “my lips are sealed” unless I can convince that party to change her mind and either allow me to disclose the information or have her do so directly to the other side! Do I have any other options?

By Popular Demand (6/29/09)
Geoff Sharp
I have had a number of emails about my last post where I mentioned a law firm breakfast I had last week to chat about 10 suggestions I had for lawyers heading into a mediation.

UDR: An Introduction To Unconventional Dispute Resolution (6/29/09)
John DeGroote
As I have said before, if you really want to cut your litigation costs, step one is to have less litigation. Step two, however, is just as important: actively manage what’s left. This post will explore a great way to do both — UDR.

The Bentley Is A Lemon (6/22/09)
Phyllis Pollack
As many of my readers are aware, I mediate “lemon law” cases or matters brought under California’s Song-Beverly Consumer Warranty Act (Civ. Code §1790 et seq.). (“Song-Beverly Act”).

By Popular Demand (6/22/09)
Geoff Sharp
I have had a number of emails about my last post where I mentioned a law firm breakfast I had last week to chat about 10 suggestions I had for lawyers heading into a mediation.

Courts Must Enforce Settlement Agreements as Written (6/15/09)
Keith Seat

Settling parties provided that the remedy for not carrying out their mediated settlement agreement would be a judgment for the unpaid amount, so a New Jersey appellate court reversed the trial court’s decision to reinstitute the original claims. The appellate court explained that if the parties wanted the option to bring back their original litigation as remedy for a breach, they needed to include that in the settlement and seek the acquiescence of the court.

Kaur v. Assured Lending Corp., 2009 WL 536902 (N.J. Super. App. Div. March 5, 2009)

Australian Courts Turning to Mediation (6/15/09)
Keith Seat

A report on mediation in the Supreme and County courts in Australia shows that use of mediation is steadily increasing. All civil cases before the Supreme Court are now being sent to mediation, where judge-led mediations are being used. A pilot mediation program in Magistrates Court has been extended and expanded from all cases under A$10,000 to all those under A$40,000. The author of the report noted that 80% of mediation participants are satisfied with the process, but that some cases need to be referred to mediation earlier.

The Age (April 2, 2009)

Mediation – An Integral Part Of Our Litigation Culture (6/15/09)
Geoff Sharp
Speech by Lord Clarke of Stone-cum-Ebony, Master of the Rolls.

Lawyers Are From Mars, Clients From Venus: Differing Perceptions Of Mediation Documented In New Book (6/08/09)
Diane J. Levin
After attending a breakout session at the 2009 ABA Section on Dispute Resolution Spring Meeting titled “What Do Litigators Want from Mediation?”, I decided it was high time to ask “What about clients?“, writing a post that called for much closer attention to the needs of those directly affected by disputes. I’m glad I did, since it turns out that my readers and I are not the only ones concerned about questions of that kind.

Law Like Love: Thoughts On A Supreme Court Nomination, ADR, And Jurisprudence (6/01/09)
Diane J. Levin
Earlier this week President Obama announced the nomination of Federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court.

The Ah-Hah Moment (5/25/09)
Phyllis Pollack
Imagine the following: you have been mediating/negotiating a dispute for hours. While there has been a lot of brainstorming occurring, none of the potential solutions, on closer analysis, work. You have been going back and forth with the other party so much that your senses are dulled and your brain is “fried”. So, you decide to take a break, go outside for some air and perhaps some coffee. While outside, you begin to think or talk to others about other things. In the middle of such distraction, the proverbial “light bulb” goes off. You get a brilliant idea about how to resolve the dispute. When you return to the mediation from your break, you present the idea; the other party thinks it is a great solution and the dispute is resolved. Just like that!

Mediate.Com CEO Responds To Questions About New Mediator Certification Program (5/25/09)
Diane J. Levin
Three of the mediation world’s leading bloggers, Diane Levin, Geoff Sharp and Victoria Pynchon, not necessarily great fans of mediator certification, interviewed (think “grilled”) Mediate.com CEO, Jim Melamed, on the new Mediate.com Certification Program. Here is the interview:

Hey Justice Logic: Don't Go Around EMPATHIZING (5/25/09)
Victoria Pynchon
Check out Balkinization's Why is Empathy Controversial? or Liberal, an excellent analysis of empathic wisdom (and blind spots) on the Bench in the wake of a noted Republican's vow to filibuster any Supreme Court nominee who might commit the (liberal?) sin of empathizing from the Bench.

UK Civil Litigation Review (5/18/09)
Geoff Sharp
UK's Lord Justice Jackson published his Preliminary Civil Litigation Cost Review last Friday. I don't know the politics of this well enough to speculate whether this might be another Lord Woolf moment but given that any rethink of how litigation might work better normally impacts in some way on our world of mediating litigated cases, this may be worth a read (at 1000 pages!).

The Dilemma Of Confidential Information
Phyllis Pollack
In many mediations, I have faced the dilemma in which one side provides crucial but confidential information to me in a separate session (i.e. caucus), admonishing me “not to tell the other side.” I sense that the information is extremely relevant and may make the difference in reaching a settlement. But, I know “my lips are sealed” unless I can convince that party to change her mind and either allow me to disclose the information or have her do so directly to the other side! Do I have any other options?

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.”   2 Comments

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.   2 Comments

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.   7 Comments

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...