Malcolm Sher, based in the San Francisco Bay Area, is a full time mediator who has resolved hundreds of real property, business, partnership, trust/estate, professional liability and employment cases, many of which involve significant emotional issues. In the majority of his cases, the disputants are from diverse cultural and ethnic backgrounds. A law graduate of the University of London, he is admitted in both California and the United Kingdom. For eleven years, he authored the Annual Supplement to CEB “Real Property Remedies and Damages” and now co-authors the ADR section of that treatise.
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Unravelling Cultural Diversity in Mediation
What is “culture” anyway? Webster defines culture as the “customary beliefs, social forms and material traits of a racial, religious or social group.” Dutch psychologist Geert Hofstede, defines culture more generally as “the collective programming of the mind that distinguishes the members of one group or category of people from another.”
Embracing "Cultural Diversity" in Mediation
More than seventy percent of my mediations involve parties who were born, raised, educated or lived somewhere other than the U.S. or are younger generations of people who were. Their differing “cultures” often play a big part in “who” they are and how they may behave in the face of conflict.
An Alternative Approach to Pre-Mediation Discovery
How can mediators work with parties and their lawyers to “position” disputes for early mediation, but allow for sufficient pre-mediation discovery, without “over-lawyering” the case too early?
The High Cost of Failing to Prepare for Mediation
When clients, mediators, and attorneys arrive at the mediation table, they can do so fully prepared or scrambling to catch-up. Showing up not fully prepared puts everyone at a disadvantage.
The Tail Wagging The Dog: Strategies For Settling Attorneys Fees-Driven Cases
How many times has a defense attorney declared litigation to be “unsettle
able” because plaintiff attorney fees have far exceeded the value of the case? How many
times has a plaintiff lawyer responded that the “defense tactics” were the cause? Using the
context of a landlord-tenant “habitability” dispute, this article examines how statutes and
behavior illustrate the problem and suggests strategies for minimizing it.
Emotional And Technical Challenges To Mediating Partition Actions
Partition actions come in many shapes and sizes. Although they often present significant challenges in the context of mediation, they can be successfully mediated if the emotional overlay that accompanies them is recognized and the numerous technical issues that permeate them are identified and addressed both before and during the mediation session. This article will explore not only some of the situations that give rise to partition actions, but also, how, if brought to an experienced mediator at the right time, they can be resolved without resorting to expensive litigation.
Special Challenges To Mediating Broker Cases
The skyrocketing price of homes is likely to spawn an increase in litigation naming real estate brokers and inspectors who were involved in the transaction. Attorneys’ fees and expert testimony make these cases very expensive to litigate. Many cases are susceptible to early mediation but broker cases offer unique challenges to the mediator. This article will address six of them, including the difficulties of multi-party cases, emotional issues, insurance coverage problems, meeting significant differing interests, tax considerations and attorneys’ fees.