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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.
It Is Incumbent Upon ADR Professionals To Discover And Disclose Biases
It is incumbent upon an ADR professional to disclose any bias and to discover his or her hidden biases. This becomes even more important when courts are undergoing severe budget cuts, cases are taking longer to come to trial and parties are being forced to secure private ADR professionals to decide their cases.
There is legislation on the horizon to lower the price of mediation confidentiality. What changes are being proposed in the Mediation Confidentiality statutes in light of Cassel v. Superior Court?
Securing The Court’s Continued Jurisdiction Over Settlements With Future Payments
The payment of settlements in monthly installments over two or more years is common in this economic downturn. A mediator works hard on getting the parties to agree upon the dollar amount to settle the case, but defendant’s attorney comes up with a new condition. Payments have to be made over the next two years, because defendant does not have the ready cash to pay plaintiff within 30 days.
Race, Gender, and Class: How Much Of A Role Do They Play In Mediation?
Recent studies have come to life as to the role race, gender and class of the mediator plays in mediation. Does race play any discernible role in mediation compared to gender or socioeconomic class? 11 Comments
Do Lawyers Unbundling In A Frigid Economy Lead To Exposure?
A large number of middle class litigants find the cost of legal representation prohibitive. Clients have resorted to self-representation out of economic necessity. Many litigants opt for partial self-representation because they have no financial alternative. A litigant has decided to handle the case, but needs some guidance on procedure or an attorney to handle the specific tasks that he/she cannot handle. In this situation, how can an attorney handle some aspects of the case and protect himself/herself against exposure in this frigid economy?
2008 Changed the Scenery of Mediation in Southern California Superior Courts
Mediation has gone through significant developments in 2008. The days where anyone could attend a 30 hour training course to be deemed a ‘certified mediator’ and be appointed to a court panel are fading. For 2008, two Southern California courts have adopted qualifications which state that only experienced and qualified attorneys can be on the civil court annexed mediator panel. With the stricter qualifications, these courts have provided that mediators are compensated. The only court that is holding fast to the no charge mediator panel is Los Angeles Superior Court, but this was heavily challenged in 2008 and free mediation for all may be quickly fading.
Plaintiff’s Personal Injury Attorneys Are Agonizing Over The New Medicare Reimbursement Laws
The growing Medicare shortfall in Washington has many politicians looking for ways to bridge the funding gap. As a result a new law, effective July 1, 2009, has been enacted which requires liability insurers (which include carriers who write CGL policies, auto policies, homeowners’ policies and those defendants who are self-insured such as supermarkets) to determine and report whether a claimant is covered and is entitled to Medicare benefits. If the claimant received Medicare benefits during their treatment for the injury, Medicare is holding out both hands to make sure they get 100% reimbursement, despite the comparative negligence of claimant. 1 Comment
The Economic Downturn: Has Settling Cases Become an Exercise in Rearranging Deck Chairs on the Titanic
We have always been told that parties are in a settlement mode at the end of the year, around the holidays. However, now the economic downturn has replaced this yearend rush. Mediators have seen a shift which is motivated by economic concerns which is fueling the settlement of cases.
California Court Side Steps Mediation Confidentiality and Stretches to Find a Settlement Agreement
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
Mediators And Centurions Have More In Common Other Than Wearing Shoes
After forming a new ADR firm, I am always asked the question, why did you choose the name ‘Centurion Mediation’ for your business? Centurions conjure up images of battles and aggressiveness, not the attributes of a mediator who should be peace building and peacemaking individuals. I wonder if any of these questioning individuals have ever mediated a dispute.
The Proposed California Model Qualification Standards Need To Reinforce Pro Bono Services For Those Of Limited Means And Indigent
The Judicial Council has promulgated proposed Model Qualification Standards for court-connected ADR programs. However, the Judicial Council dilutes pro bono services by requiring that the mediator, mediate a set number of cases per year to remain on the court’s approved list of mediators.
It Is Time To End Pro Bono Mediations In Unlimited Jurisdiction Cases And Redirect DRPA Funds To Those Who Lack The Financial Resources
It is time to redirect Dispute Resolution Program Act funds away from Counties who have Court Annexed ADR programs that give free mediations in unlimited jurisdiction cases, rather than charging the parties on a sliding scale basis. The Legislative intent as outlined in the statute provides funds for programs that support community based programs that resolve specific community disputes. Programs are suffering because funds are being diverted to court annexed programs that are serving the economically prosperous, who receive dispute resolution services free of charge while paying handsomely for all other aspects of their litigation.
And the Oscar for Best Movie Goes To--- Crash of Racial Stereotypes and Humanitarian Babel
Last year we saw Crash running away with the Oscar, and was acclaimed for not only the best movie of the year, but for its exposure of race relations, bias and stereotypes in American society. Again this year, Hollywood, has by accident, created incredible teaching tools that can be used to raise our unconscious biases and stereotypes which can lead us to recognize unique, individual features of others.
Lost In Translation: Legislature’s Revision Necessary To Restore Funds To Community Based Dispute Resolution Programs
In 1986, the California legislature enacted a statute to fund a Dispute Resolution Program. The legislature intended for the funds to be directed to the community to develop an informal resolution of disputes in a non-coercive dispute resolution forum, outside of the court system. However,the intent of the legislature has been lost and the funds are being directed toward court programs that favor the economically well off who have the financial resources to maintain costly and protracted litigation.
Flash Flood Warning: After the Early Raine Decision this Year, Employers’ Are Creating a Weather System That Forecasts a Hurricane
Recently, I have been mediating several claims involving the Raine v. City of Burbank (2006) decision. I thought you would be interested in how to deal with the problem . . .
Corporations Will Carry The Bottom Line Torch And Ignite The Diversity Fire In The ADR Profession
As Diversity Chair of the ABA Dispute Resolution Section, we have the task of presenting the Diversity Forum at the Annual Conference. This year Corporations were particularly interested in addressing diversity in the ADR field. Unexpectedly, they announced at the Forum that their demands for diversity will extend to ADR providers that they utilize directly and indirectly.
Mediators Beware: Joint Sessions Are Not Confidential Under The Administrative Dispute Resolution Act
As we all know, California distinguishes itself from the rest of the United States in many arenas. It is not a surprise that it is any different in the mediation world. Unfortunately, California mediators who mediate, for example, federal workplace disputes under the Administrative Dispute Resolution (ADR) Act (5 USC §574) are on auto pilot and assume that the confidentiality provisions are the same in both forums. However, the Administrative Dispute Resolution Act has confidentiality twists and turns.
THE D-LISTS (The Darn Damages Demand Detail Lists): A check list for successful ERISA and Employment Mediations
Participants at mediations go through tedious rounds of negotiations in trying to come up with a number to settle a case. When we think we have a settlement as to the damages, a party throws in an additional demand that was never mentioned in the early stages of mediation and the other party always scream, ‘Darn! Why didn’t they mention that in the beginning?’
Will Businesses Begin To Demand That Legal Counsel Use Diverse Mediators?
As a result of demands from leading companies who are its clients, law firms now have diversity policies and programs to recruit and retain diverse partners and associates. Will these companies demand that law firms address diversity in the pool of mediators it uses?
The Los Angeles Superior Court ‘Mediation’ Panel Is Nothing More Than Early Neutral Evaluation: Mediators’ Reluctance To Engage In The Process
Los Angeles Superior Court (LASC) defines a mediator as ‘an impartial, neutral intermediary, whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options.’ However, the role of the neutral that is assigned to ‘mediate’ an action, in actuality does not conduct a mediation but an early neutral evaluation, whose aim is not to settle an action but to assist the parties to determine their future strategy in the case. The LASC Mediation Panel has to be redefined and relabeled for mediators to actively participate in the process. 3 Comments
One Stop Shopping-The New Breed Of Investigators/Mediators In The Employment Arena Are Creating Conflicts
Employers are seeking neutral and objective investigators as a result of recent case law. Those offering their services to employers are attorney/mediators who concentrate in the employment arena. However, by design or by accident, the investigation may conclude as a mediation which can cause conflicts and compromise neutrality of the investigator/mediator. What questions should the attorney/investigator/mediator be asking before wearing these various hats? What pitfalls lie in wearing multiple hats? 1 Comment
Pre And Post Election Fear And Anxiety Creates An Emotional Barrier To Settlement That The Mediator Has To Overcome
Part of the country has rejoiced in last Tuesday’s election. Others have described it as Black Tuesday. It is understandable that the candidate and its supporters feel dejected after such a defeat of a hard-fought campaign. However, unlike any other election this has created and continues to create emotions that will linger for a long time, create a barrier in reaching any common ground, including successful resolution of disputes. 1 Comment
Conflict Coaching: Creating Directions for Kobe Bryant and the International Gymnastic Federation
Many people tend to create conflict, rather than consider preventative measures and other ways to shift their culture to be conflict competent. However, there is a new emergence of Conflict Coaching which is emerging as a viable and productive mechanism in an effort to deal with and prevent conflict.
A Workplace Dispute Resolution System Creates A Winning Team
The most highly publicized and best example of conflict in the work place is the Los Angeles Lakers. We saw throughout the season the disputes between Kobe and Shaq, Kobe and Jackson, Peyton and Jackson.The smaller organization teaches us that dissolving a team does not lead to resolution of conflicts. Building a workplace dispute resolution system creates a winning team.
The Lessons of Rojas: Let's Play Ball
Legal commentators are claiming that the new California Supreme Court opinion of Rojas v. Superior Court (July 13, 2004), where the court held that everything disclosed in mediation has a veil of ‘absolute confidentiality’, will cause litigants to disclose their weaknesses then hide behind this veil of ‘absolute confidentiality’ during the post-mediation discovery process and at trial. The legal commentators are claiming that the Rojas decision will kill mediation. These commentators’ theories are out of the ball park. 3 Comments
The Mediators Role: Tackling Their Illusion of Objectivity
Recent studies of employment discrimination jury verdicts in California, substantiated the bias of humans. How can mediators tackle their illusion of objectivity and keep neutral during the mediation process?