The Truth About Deception In Mediation (5/17/12)
Jeffrey Krivis
Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.

Court’s Disposition Final, Despite Tentative Settlement (5/15/12)
Keith Seat

Mediation resulted in a tentative settlement agreement that needed approval of the city’s board of selectmen, but before the board acted the court ruled for the city on summary judgment, dismissing all claims. Plaintiffs sought to vacate the court’s order and enforce the settlement agreement, but the court concluded that the settlement was never finalized because the requirement of board approval had not been met and bad faith delay was not established. The court also rejected plaintiffs’ other arguments, including an assertion of excusable neglect by plaintiffs’ counsel in failing to inform the court of the settlement discussions, which the court agreed would have likely delayed its summary judgment ruling.

Bliss v. Fisher, No. 10-10252 (U.S.D.C. D. Mass., April 5, 2012)

Experts (5/14/12)
Diane Cohen
An expert is not someone you throw your entire problem to and just wait for a result to pop out. An expert, when consulted appropriately, can be an extremely helpful aid to a problem. However, an expert, when consulted without care, can give you the false confidence to make exactly the wrong choice.

Judge and Mediator - Big Brother? (5/14/12)
Clare Fowler
Judges and court-appointed mediators have an interesting relationship. ”Interesting” can be defined as big brother, incestuous, or a match made in heaven.

How Good Emailing Can Improve a Bad Relationship (5/14/12)
Susanna Jani
Today, you are in for a real treat. Jane Henderson, Q.C., our perennially popular blogger and member of our distance mediation team, is back with another of her signature frank, but light-hearted, posts. I hope you are settled into a comfortable chair because this is one you’ll want to read to the end!

Federal Court Refuses to Sanction Party for Trying to Reach Global Settlement in Mediation (5/08/12)
Keith Seat

An unsuccessful mediation between two brothers resulted in plaintiff filing a motion for sanctions against defendant for not mediating in good faith because defendant sought to resolve broader issues that would have required participation of a sister who was not a party in the litigation. A U.S. district court in Florida stated that it is up to the mediator to report bad faith mediation, not the parties. The court found that all participants required to be in mediation had been present, ignoring plaintiff’s assertion that defendant apparently sought to resolve additional issues that went beyond the litigation.

Kaplan v. Kaplan, No. 2:10-cv-00237 (U.S.D.C. M.D. Fla., March 30, 2012)

New Jersey Court Upholds Settlement in Principle Signed in Mediation, But Not Unexamined Longer Agreement (5/08/12)
Keith Seat

At the end of a nine-hour mediation of a workplace discrimination case, the parties and mediator signed a one-page “settlement in princip[le]” listing key terms and stating that a full settlement agreement would be signed within a week. Plaintiff later refused to sign a detailed 11-page agreement, claiming that no settlement had been reached and that she only signed the one-page agreement because she was told it was a confidentiality agreement. The trial court upheld the one-page agreement and required plaintiff to sign the longer agreement. A New Jersey appellate court agreed that the one-page agreement was enforceable, as it was clear that it covered more than confidentiality, so there was no need to pursue plaintiff’s assertion of fraudulent inducement. However, the appellate court rejected the trial court’s conclusion that plaintiff must then sign the 11-page agreement, as there was no review to ensure that it did not go beyond fleshing out the terms of the one-page settlement agreement.

Williamson v. Boehringer-Ingelheim Pharmaceuticals, Inc., No. A-6291-10T1 (N.J. App., March 12, 2012)

Ninth Circuit Boosts Use of Mediation in Lower Courts through “Resolution Roundup” (5/08/12)
Keith Seat

The Alternative Dispute Resolution Committee of the U.S. Court of Appeals for the Ninth Circuit is seeking to increase mediation in federal district and bankruptcy courts with heavy caseloads through a week-long “Resolution Roundup,” using mediation to clear backlogs. The U.S. District and Bankruptcy Court in Idaho is the first to participate in the program, with 35 judges, law professors and other mediation experts volunteering their time to convene and mediate dozens of cases during the first week of April.

(April 1, 2012); Press Release of U.S. District Court of Idaho (March 21, 2012)

Don't Forget About Your Witnesess When the Case Settles (5/07/12)
John Bratt
I just reached a settlement in a case that was set for trial next week. Obviously that is great news for my client, who now has some closure on a difficult period in his life.

Planning To Settle Complex Employment Cases? Ten Tips To Increase Your Chance Of Success (4/30/12)
Jeffrey Krivis
Mediating complex employment cases is like rehearsing for a great performance. Success depends on planning and preparation. The Beatles rehearsed and played their music for 10,000 hours before they were ready for the Ed Sullivan Show. That’s not to say it’s necessary to spend that much time preparing for an employment mediation, but success or failure does often depend on your willingness to invest time in planning.   1 Comment

In Support of California Assembly Bill 2025 (4/30/12)
Elizabeth Moreno
This article discusses in detail California Assembly Bill 2025. This bill is currently being considered before the California Supreme Court. AB 2025 changes the rules of mediation confidentiality.

ODR and Napoleon: World Conquest (4/30/12)
F. Peter Phillips
No sooner had Colin Rule addressed my students at New York Law School but we met each other again in Washington, DC, where he was on a panel on online dispute resolution at the Annual Meeting of the ABA’s Section on Dispute Resolution. Colin’s seven years with EBay/Paypal, combined with his new start-up Modria, have turned that sparkle in his eye to a glint. He sees the future, does Colin, and it doesn’t include lawyers — or the law.

Beyond the Numbers: the Client, the Court, and Dispute Resolution (4/30/12)
Diane J. Levin
He was a widower and a grandfather. He arrived at the mediation with his attorney and one of his adult daughters for moral support.

Confidentiality Exceptions (4/09/12)
Joe Markowitz
Last year the California Supreme Court upheld California's expansive protection for mediation confidentiality to bar evidence of attorney-client communications made during mediation in support of potential malpractice claims against attorneys. In doing so, however, the court practically begged the legislature to consider amending the statute to allow the use of such evidence.

Meet M. Laurie Murphy (4/09/12)
This is one of a series of interviews conducted by jan Frankel Schau. Jan is interviewing representatives of the 97% of attorneys who are winning cases without going to trial. This interview is with M. Laurie Murphy.

Effective Use of Depositions in Mediation (4/02/12)
Henry Cox
Most attorneys use discovery to prepare for trial. Most civil cases settle outside the courtroom. Attorneys who use discovery with mediation in mind, tend to reach for effective results in the mediation process.

Embedding Mediation in South African Justice (3/26/12)
Jacques Joubert
This is a perspective on the future of mediation in South Africa. It discusses the flaws and benefits of the current system, as well as anticipated developments in the future.

Proposed Legislation To Do Away With Mediation Confidentiality (3/12/12)
Phyllis Pollack
On Thursday, February 23, 2012, Assembly Member Wagner introduced AB 2025 before the Californai State Legislature. The proposal seeks to create an exception to mediation confidentiality by amending the California Evidence Code to allow the introduction of evidence. This could have lasting impact on California mediators, and may set the standard for national evidence codes.

Appellate Mediation? (3/12/12)
John Bratt
In the past, I have written about alternative dispute resolution as a means for resolving personal injury cases before trial. Well, there is a new article out in the Maryland Bar Journal about how mediation is being used to resolve cases on appeal in the Court of Special Appeals.

Straus Institute Conversation Series featuring Ken Feinberg (Video) (3/09/12)
Kenneth Feinberg
The Straus Institute for Dispute Resolution debuted a new “Conversation” series on November 14, 2011, as part of their 25th anniversary celebration. “Straus Presents: A Conversation with Ken Feinberg” featured one of the best-known figures in the field of alternative dispute resolution in a ninety-minute interview conducted by Straus Institute academic director and William H. Webster Chair Tom Stipanowich. The interview focused on Feinberg’s early involvement as special master mediating the Agent Orange cases and other mass tort claims, his role as special master of the September 11th Victim Compensation Fund, and his current oversight of the Gulf Oil Spill Fund.

Do Children Fare Better in a Mediated or Litigated Divorce? (3/05/12)
Howard Chusid
Sometimes, parents think that only they are getting divorced and the children aren't adult enough to merit being heard. This is a major mistake that may fester and manifest into problems in the future. Poor grades at school, stomach aches, missing school days, getting up late, not listening to teachers, alcohol and drug use are just some of the ways that children and adults react to the stress and acrimony of divorce.   4 Comments

One Key Difference Between Mediation and Collaborative Law is Often Overlooked (2/28/12)
Michael A. Zeytoonian
As a mediator and a collaborative lawyer, I often get asked: “What is the difference between mediation and collaborative law (“CL”)?” It’s hard for parties in a dispute and other non-lawyers to see the differences; in fact lawyers have trouble articulating them.

Introducing Karina Sterman (2/20/12)
Jan Frankel Schau
As a part of the 97% Series of Interviews, I loved this one: Read on about Karina Sterman's classic move towards a sophisticated business dispute: can you say "lunch"?

Court Funding (2/20/12)
Joe Markowitz
I heard LA Superior Court Presiding Judge Lee Edmon speak at a County Bar Association lunch recently about the current dire state of court funding. Due to the state budget crunch, the state legislature began drastically slashing the courts' budget several years ago, but the courts have managed to avoid the worst effects of these cuts by diverting capital funds and reserve funds to current operations.

Effective Use of Civil and Commercial Mediation in Poland: Part 2 (2/06/12)
Sylwester Pieckowski
Poland was one of the first EU Member States to enact a detailed and complete legislation on mediation in civil and commercial matters (“Polish Mediation Law”). The Law entered into force on December 10, 2005. This article discusses Polish mediation in civil matters.