Court Ordered Mediation and Informed Consent
Standard I of the Model Standards of Conduct for Mediators is entitled "Self-Determination" and admonishes us that "a mediator shall conduct a mediation on the principle of party self-determination."
One of the first questions a mediator must ask herself is whether she should take a specific case?
The Mediator as a Choice Architect
One of the most important aspects of mediation is self-determination. Standard 1 of the Model Standards of Conduct for Mediation is entitled “Self-Determination.”
Don’t Chalk My Tires, Or Why Mediation is Not Appropriate
This discussion exemplifies one of those very few circumstances in which mediation may not be appropriate because a public policy is at stake.
How Do You Define “Ethics?”
"For centuries, we have shared common expectations of how we behave ethically in society, based largely on a mutual understanding of the reality in which our decisions play out. These underlying expectations have come to be guided by three pillars."
Making Ethical Decisions
Despite the complexity of ethical issues, Ms. Liautaud has formula for making an ethical decision quite simple.
Vividness Bias: Real or Illusory?
Harvard’s PONS defined vividness bias as “…the tendency to overweight the vivid and prestigious attributes of a decision, such as a salary or an employer’s status, and underweight less impressive issues, such as location or rapport with colleagues.”
Implicit Bias is Everywhere!
Recently, I discussed an empirical study conducted by University of Hawaii Professor Justin D. Levinson and Mark Bennett, U. S. District Judge (ret.) on 239 sitting federal and state judges regarding their implicit bias towards “largely favored minority groups”.
Implicit Bias in Judging!
Recently, I attended a Zoom presentation sponsored by the American Jewish Committee San Francisco entitled, “Judging Implicit Bias: The Role of Implicit Bias in Judicial Decision-making.”
Mediation Briefs and Preparation
Why do mediators request briefs from the parties? No- it is not just to learn about the case.
Certainty Does Not Equate to Accuracy!
In the past, I have discussed studies on the unreliability of witness identification of suspects in criminal proceedings.
“Noise” is not Bias!
I learned a new term recently: noise. Not “noise” as in a room full of people talking loudly, but “noise” as opposed to “bias”.
Imbalance of Power!
When negotiating, think about the power dynamics at play and especially where lies the balance of power.
Trust and Rapport - ODR Style!
One of the most important things a mediator must do- if not the most important- is to build trust and rapport with the parties. In pre-Covid days, this was a bit easier; the mediator could sit face to face with each party and schmooze.
One Year Later: Zoom Fatigue
Almost one year ago, life for most of us changed irrevocably: we went from commuting to and from our offices and fighting traffic to commuting between our bedrooms and “home” offices and fighting over internet access.
Clash of Approaches
I have had several mediations lately in which the approach of the parties clashed.
An Ethical Dilemma: What To Do?
Teaching mediation ethics has its good points and bad points.
Start 2021 with Apology and Forgiveness!
It struck me that as we start 2021, perhaps it is a good time to “turn over a new leaf” by apologizing for our acts and/or omissions and forgiving others for their acts/omissions committed in 2020.
This post discusses interesting ramifications of personalities, such as two individuals who are each “disagreeable” tend to get along the best.
Reflections on the last 525,600 minutes!
This article looks at: What three things have I learned in the last 525,600 minutes?
The Importance of Flexibility, Creativity, and Being Prepared!
Recently, I conducted two mediations that revealed the importance of flexibility, creativity, and being prepared.
Recently, a friend of mine challenged me to write a blog about how to survive Christmas/Hanukah/Holidays dinners considering our recent election. Some will be happy while others will be distraught at the results; yet we will all be sitting around the same table (virtually?) breaking bread together.
Rethinking How We Dress!
This article examines if not conforming actually elevated one’s status.
Texting Your Way To Resolution!
Perhaps in our lives we need to take a cue from hostage negotiators.
The Dissonance Within Us
Some of us are in a conflict; we “…are motivated more by a desire to appear moral than to actually be moral.”
The Impermanence of Life
Online Yom Kippur discussed was the impermanence of life.
“Death by a thousand paper cuts.”
The term “microaggression” was coined in the 1970s by Dr. Chester Pierce who is a psychiatrist, and refers to “subtle, stunning, often automatic, and nonverbal exchanges which are ‘put downs’ of Black people and members of other minority groups; ‘micro’ refers to their routine frequency, not the scale of their impact.” (Id.)
How is Your Attitude? It makes a difference!
There is a saying among mediators: often at the start of a mediation, the mediator is the only optimistic person in the room. She is the only one who believes the matter will settle.
Some Practical Considerations When Mediating Online!
This article discusses the practical considerations or the do’s and don’ts of conducting a mediation online.
Addressing Ethical Issues in Online Mediations
Recently, I posted a blog about some of the ethical issues that might arise in mediating online using a video conferencing service. While I raised several issues, I did not address how to respond to the issues.
I just finished reading a book entitled, Start With Why? By Simon Sinek (Penguin Group, New York, 2009) which posits a simple thesis on why some organizations are very successful and others are not.
We are all facing a “new normal.”
What, Me Worry?
Being involved in a lawsuit or even just in a dispute can be stressful, worrisome if not anxiety ridden.
In Negotiations, Are Women More Ethical Than Men?
The Harvard PONS blog posted (on February 10, 2020) a thought- provoking article by Katie Shonk entitled “Moral Leadership: Do Women Negotiate More Ethically than Men?”
Watch Out for the Non-Verbal Cues!
One of the latest blog posts from the Harvard Negotiation Project notes the importance of understanding body language in negotiations.
Are You Listening?
One of the first things a mediator in training is taught is to listen, really listen what the parties are saying.
It is All a Matter of Perspective
This season is a time for reflection and to realize once again that not everyone sees the world the same way as we do.
Implicit Bias is Everywhere: Even in the ER!
This article discusses a medical diagnosis--due to bias.
Happy Thanksgiving !!!!
Thanksgiving is in a few days, and I want to take this opportunity to wish everyone a very Happy Turkey Day!
Have Faith in Another’s Honesty!
In any given mediation, I am often asked whether I think the other party is telling the “truth”, can she be “trusted”?
The Reality of Impasse: Show me the money!
It is funny how sometimes the stars align to suddenly highlight an issue that was nowhere in my conscious brain before then.
The Good and Bad of Anger in Negotiation!
I wonder whether the use of anger in negotiations is helpful or harmful.
Sometimes, It Pays to Pretend Anger!
Mediation is a voluntary process in which each party is to make her own uncoerced decision.
During a recent discussion of ethics, I asked whether it would be proper to hide information.
Framing, Process, and Empathy: How important they really are!
"Although the mediation lasted an entire day, it did not settle. Why? There was no framing, process or empathy."
Apologies Are Not for Everyone!
In my various mediator trainings, the use of an apology as a means of resolving a dispute has often been discussed and advocated.
Process Before Substance
Framing is how to present a proposal. Is it presented in a positive fashion or in a negative fashion?
The Slippery Slope of Negotiations!
This looks at a PON article which discusses four reasons why a negotiator might proceed down the slippery slope of an ethical lapse.
May I Talk to the Other Party ?
I have said this before and will say it again: talking to the other party does wonders.
Starting With the Small Stuff
In my early training to be a mediator, the trainer often suggested that to help the parties reach an agreement on the really big issues, start with the small ones.
Mediating My Own Disputes
There is an adage that a person who is her own lawyer, has a fool for a client, meaning that representing yourself is a foolish.
The “ABC Test” is Retroactive!
In 2018, the California Supreme Court drastically changed the employment law landscape in California by adopting the “ABC Test” for determining whether workers are employees ( and not independent contractors) under California wage order laws.
A New Tool in my Toolbox!
The other day I stumbled upon a tweet mentioning a “velvet hammer”.
Silence is Golden!
A pause at the right moment can be a very powerful tool.
The Hypothetical or Trial Balloon Tactic
When on a recent cruise, I had a real lesson in negotiating!
How SINS ful Are You?
In a recent blog, I mentioned that I attended a seminar presented by Professor Blondell discussing ethical fading in mediation. At one point, she mentioned the SINS scale which I had not heard about.
The NFL’s Moral Disengagement
There are approximately eight different ways to morally disengage, and I examine how this related to the NFL.
Our Pet Friendly Legislature (and other new Laws) for 2019!
At the start of each new year, I like to see what new laws our California Legislature has passed.
Implicit Biases May Be A Good Thing!
There may be another and more positive way of looking at implicit biases; it is simply a question of “framing”.
Every Dispute is Two Disputes
The theme of the session was that while being intelligent is good, it is also very important to have emotional intelligence; the ability to tap into the emotions of others, or to read people.
Happy Thanksgiving !!!!
Thanksgiving was a few days ago, and I want to take this opportunity to wish everyone a very Happy Turkey Day!
Forget the “Carrot and Stick” Approach!
Over the years, many people have told me that they sometimes use the “carrot and stick” approach as a negotiation tactic.
Typically, before I discuss the topic of mediation ethics with my students, I delve into the topic of “negotiation ethics” in general.
Too Many Cooks in the Kitchen!
I just finished conducting a mediation (lemon law) which did not settle. And I think I know the reason.
Generating Multiple Options!
Attending a mediation requires making difficult decisions.
New Mediation Confidentiality Law
On September 11, 2018, Governor Jerry Brown signed in a law which will require attorneys to inform their clients of the confidentiality restrictions related to mediation.
Revenge as a Learning Experience
No doubt, at some point in your life, you have wanted to take revenge against someone who “did you wrong”.
Past the Time Is the Right Time!
Many, many years ago, someone once said to me that people do not begin to negotiate until it is past the time to negotiate.
Acceleration in conflict begets acceleration until we become mice on a treadmill.
Dispute Resolution 101!
My husband’s stay in the hospital has taught me a very basic lesson: knowing how to resolve disputes is a necessary tool in every aspect of life, especially in stressful situations such as hospital stays.
Not Just Another Set of Lamb Chops!
Someone once said to me that while to a butcher a pair of lamb chops is just another set of lamb chops, to a person who has not eaten in a long while, it will be the best meal ever. In sum, it is all a matter of perspective.
“Trusting” the Expert
In its Smarter Living section on April 29, 2018, the New York Times posted an interesting article about how our unconscious biases can play tricks on us when it comes to experts.
The Need For Preparation!
Several times in the past, I have discussed the need for each party to prepare for mediation for it to be successful.
An Update on Prior Disclosure
As some of you may recall, the California Law Revision Commission issued its Tentative Recommendation late last year to create an exception to mediation confidentiality.
Over Confidence Can Kill!
While typically we discuss the over confidence bias in the context of negotiations, trials and other non-life-threatening events, this bias applies to all situations.
Settlement Ethics 101
So… is the attorney in the Daniels/Trump case in a no-win situation here?
The Medium Makes the Difference!
The last decade and a half has seen an explosion in communication by every means imaginable other than face to face. For this reason, I believe its points are worth revisiting.
You Look Like Someone I Can Trust!
When my sister had just been born, my mother boarded a crowded war time train with my sister in her arms, then turnd and handed the baby to a trusting stranger.
I Like You!
Lawsuits are products.
Anger Has Its Benefits !!
Researchers concluded that “‘People intuitively chose to become angry… They believed they would become more effective competitors.’”
I Apologize For Suggesting It !
Mediations and their participants never cease to amaze me.
One of the unexpected obligations as a lecturer in law at a major university is that I must participate in harassment prevention training. One topic caught my attention although it was barely mentioned: micro-affirmations.
Sunk Costs and the California Law Revision Commission
On September 28, 2017, the California Law Revision Commission met to review the public comments it had received to its Tentative Recommendation (issued in June 2017) following its study to create an exception to mediation confidentiality (Study K-402).
Expanding The Benefits of An Apology!
On July 13, 2017, Hong Kong’s Legislative Council passed an Apology Law.
Why You Should Avoid Trial and Mediate Instead!
We all have cognitive biases.
A Fat Bias: Implicit or Explict?
When you see an overweight person walking down the street, or perhaps sitting in a meeting with you, what is your reaction? Do you cringe or try to avoid that person?
The Power of Silence
While I have known that silence can be a powerful tool in my mediation tool box, I never really thought about until I read a recent article posted on the BBC news website called “The subtle power of uncomfortable silences."
Commenting on Tentative Recommendation
On June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create an exception to mediation confidentiality (Study K-402).
Time, Money, and Happiness
This article discusses a study in which individuals reported greater happiness when they paid others to do their chores.
The Need to Dance; the Fear of Failure
The other day, I received a telephone call from an attorney wondering if I could conduct a mediation on very short notice.
Have you ever asked yourself, “What if I had taken a different route? Then I would not have been involved in the auto accident?”
The CLRC’s Tentative Recommendation on Mediation Confidentiality!
If passed by the legislature, new Evidence Code section 1120.5 would allow parties to pursue claims against counsel for “legal malpractice” occurring in a mediation context.
A Bully in Real Life
Life’s lessons come when you least expect them, and my mediation training comes in handy at such unexpected times.
A Real Case of Prisoner’s Dilemma
One of the first things I learned about in game theory was the prisoner’s dilemma.
Jack and Jill Go Up a Hill… And Argued No More (Part 2!)
The tribal effect is often deliberately used to manipulate and divide people. It preys upon the “us v them” mentality.
Looking for Happiness!
Well… we missed it again! International Day of Happiness was March 20, 2017, but, perhaps, missing it was not such a bad thing.
Jack and Jill Go Up a Hill….and Argue!
As they are going up the hill, from out of nowhere, Jill makes an offhand but biting remark to which Jack responds negatively. The ensuing conversation gets totally off track on whether they should go up the hill and instead focuses on Jack’s personality traits and then on Jill’s personality traits.
Too Much Information May Be Bad
Often in negotiating, a party may make a monetary demand without providing any reasoning behind it.
On Apologies…. Once Again!
If poorly worded, an apology can only exacerbate the situation rather than ease the hurt and pain caused by the initial faux pas.
After this political year, we ask: why will the publis only accept facts which support their current beliefs?
Just About at the End!
While the exception to mediation confidentiality has a long way to go before it becomes law in California, I sense that the initial work of the CLRC is just about concluded.
Stepping Outside of Ourselves
Not everyone lives the way we do. And just because someone may do things very differently than we might does not mean that what he alleges as happening is false.
Exception to Mediation Confidentiality: Moving Forward
On December 1, 2016, The California Law Revision Commission (“CLRC”) met once again to discuss its Study K-402-Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct.
The Slippery Slope
At one point or another in our lives, most of us have told “little white lies” if only to avoid hurting someone’s feelings. In telling that “little white lie”, we tell ourselves it is harmless and it will lead to nothing, and definitely, will NOT lead us to tell “bigger white lies”.
Different Ways of Looking at the Same Thing!
Emotions, not logic, control our decision making.
Recently (as part of a book club), I read The Psychology of Conflict by Raul Randolph (Bloomsbury Publishing PLC, London 2016) who is a barrister and mediator. His approach is to use existentialism as the vehicle through which to discuss the psychological aspects of mediation.
Researchers discovered that when the LSU Tigers unexpectedly lose a football game, the juvenile judges take their anger/frustration at the loss out on the juveniles before them by imposing longer sentences.
Bring Them Cake!
This blog may not have much to do with mediation but has everything to do with conflict resolution.
Where We Stand on Mediation Confidentiality, Both in California since the Cassel decision and in the Ninth Circuit
During the past year, there have been two interesting developments regarding mediation confidentiality.
Are We Our Own Worst Enemies?
An article, from the Harvard Law School Program on Negotiation entitled “Salary Negotiations”, focuses on negotiating the best salary possible, some of its points are equally applicable to negotiations in general.
It Ain’t Easy To Say “I am Sorry”
There are right ways and wrong ways to say “I am sorry”. Most of us have figured out the wrong ways… by accident.
To Leave or To Remain?
Brexit: should Britain remain within the European Union or leave? The proponents on both sides have been quite strong in their respective positions accusing each other of exaggeration, if not misrepresentation.
The California Law Revision Commission’s Latest Decisions Re: Mediation Confidentiality
On June 1, 2016, the California Law Revision Commission (CLRC) held its meeting in Sacramento and, as in the past, took up mediation confidentiality as the last item on its agenda.
Risk Taking: It is a Matter of Biology.
Are you a risk taker? Or, are you a risk averter?
A Perfect Example of Engaging to Avoid
A few weeks ago, I discussed the paradox of Avoidance and Engagement. Parties engage in mediation to avoid further litigation or prolonging the dispute yet at the same time, they avoid each other during the mediation (through the use of separate sessions) to engage in settlement negotiations.
Principles and Optimism /Realism and Compromise
As a mediator, I have often had a party tell me that she will not settle on the terms proffered because, “It is all about principle!”
Sidestepping Mediation Confidentiality
Once again, the Ninth Circuit has sidestepped discussing the contours of mediation confidentiality in federal lawsuits based on diversity jurisdiction.
Is There a “Gorilla in the Room”?
California has a statute – Code of Civil Procedure Section 583.310– that requires that all cases be brought to trial within five (5) years of being filed or else be subject to dismissal. However, this five year period is tolled if during the final six (6) months of this five year period (i.e., after the case has been on file for 4 ½ years) the matter is submitted to mediation.
An Offer to Settle Does Not End the Case!
The Ninth circuit recently determined that a rejected Offer of Judgment did not moot the case. Defendant appealed. This is their story.
Changing Our Habits !
For the first few weeks of 2016, we will keep our New Year’s resolutions but as time passes, they may fall by the wayside, and we will find ourselves doing the same things we promised ourselves we would avoid. Why? Habits!
Which System Would the Jury Use?
If you have been reading my blogs, you know that I am interested in neuroscience and the notion as discussed by Daniel Kahneman in his book Thinking Fast and Slow that we have two systems of thought to get through our day.
Asking the Tough But Necessary Questions!
Based on the many, many mediations I have conducted, I have found that one of the biggest obstacles to resolving a lawsuit is the lack of preparation. The attorney representing the party and/or the party have not given any real thought to what it will take to settle the case or even if or why they want to settle the case!
Defining A “Settlement” or When Is A Case Moot ?
The other day, I came across a case argued before the U. S. Supreme Court on October 14, 2015 involving both of these issues. It caught my interest because the questions presented to the U. S. Supreme Court are; (1) whether a case becomes moot when the plaintiff receives a settlement offer that provides full and complete relief on his claim; and (2) Does such an offer of complete relief on his claim moot his class claim where that class has not yet been certified?
A Further Update to Mediation Confidentiality in California
The California Law Commission rejected the use of a cooling off period after a settlement agreement is signed at mediation (such as is used in certain employment disputes) and also rejected the ability of the parties to unwind the agreement where misconduct is alleged. This article discusses additional updates to California mediation policy.
The Upside of Anger
In most disputes, when people get angry- it is a bad sign! It usually means that the dispute will NOT get resolved, and that one or the other party will leave in a huff. Indeed, neuroscience teaches us that when the emotional side of our brain (right brain) is operating in full force, there is absolutely no way that we can think deliberately or rationally (?). Our left brain is being overpowered by right brain.
Stop and Think … Before Suing!
Californians have a reputation for being litigious; for making mountains out of mole hills. Judge Kozinski of the Ninth Circuit Court of Appeals minces no words on this point. A very small “tiff” got very much out of hand apparently because neither party had the courage (or common sense?) to admit the error and/or apologize.
Mediations are Supposed to be Confidential… But Are They Really?
Either as a participant in a mediation or as the mediator, we have all learned the cardinal rule that mediations are confidential both in terms of the statements and other communications made during the mediation and the information the mediator keeps to herself, not sharing it with the other parties. Many times a mediator has analogized mediation confidentiality to the television ad, “What happens in Vegas, stays in Vegas” to explain the sacrosanct nature of mediation confidentiality.
Second Thoughts on Mediation Confidentiality
Recently, I posted a blog about the August 2015 meeting of the California Law Revision Commission (CLRC) in which as part of its study on the “Relationship between Mediation Confidentiality and Attorney Malpractice and Other Misconduct ” (Study K-402), the Commission requested that Staff Counsel draft legislation to include exceptions to mediation confidentiality.
Rudeness Begets Rudeness!
I conducted a mediation the other day in which both sides professed that they wanted to settle the matter as the trial would be a “big distraction” but were stymied in their efforts due to personality conflicts. (They both wanted to settle as they did not want to have anything further to do with the other: to each party- the other was not to be trusted.) It reminded me of a divorce in which both parties want the result but are so busy hating each other that they cannot get past the hatred to work towards the mutual goal of ending the relationship.
Update on Mediation Confidentiality
As originally drafted and introduced into the California State Assembly, it provided that mediation confidentiality would not preclude the introduction of “… communications between a client and his or her attorney during mediation… in an action for legal malpractice or breach of fiduciary duty or both, and in a State Bar disciplinary action, if the attorneys’ professional negligence or misconduct forms the basis of the client’s allegations against the attorney.” In short, mediation confidentiality would not provide a shield to an attorney in a legal malpractice action, State Bar proceeding or disciplinary action where his alleged misfeasance or malfeasance arose during mediation.
Empathy - Part 2
Last week, I wrote about empathy – its definition and what researchers have found about why we may be more empathetic in certain situations and/or given our personalities. The blog concluded with the notion that empathy can be learned; it is our choice whether we wish to be more empathetic.
Empathy - Part 1
Empathy- it is an interesting word. Although containing only 7 letters, it is packed full of meaning. The Merriam-Webster dictionary defines “empathy” as “the feeling that you understand and share another person’s experiences and emotions: the ability to share someone else’s feelings.”
I have mixed emotions. Why? Recently, I have conducted multiple mediations simultaneously in matters involving the same plaintiff’s counsel and defendant’s counsel. These are lemon law cases and so frequently the same plaintiff’s counsel will have multiple cases with the same defense counsel. The mediations are thus scheduled for a single day and only counsel are present.
Plaintiffs file lawsuits seeking “justice”. Defendants respond, stating they are seeking “justice” as well. Both come to mediation, seeking “justice”. When I am told this, that each side wants “justice”, I am not sure how to respond because I do not know exactly what that word means.
Competition to Cooperation
When I started mediating cases, I never thought that I would have to be aware of or learn advanced mathematics. But a book that I recently finished has shown me otherwise.
The Simplest Way to Negotiate
I have mediated over 1400 matters. Thus, I have seen parties approach negotiation in a myriad of ways; some appear to be “winging it” while others appear to have some sort of strategy in mind. The common thread appears to be “self-interest” or how can each party get the best deal possible. Yet, pursuing one’s own self-interest at the expense of the other party often leads to poor results for both parties.
Beyond “Being Difficult”!
Recently I read an article about two lawyers assaulting each other during a deposition being conducted in the courthouse. Two attorneys were arrested and charged with simple assault on Wednesday after they got into a heated dispute that turned into a fist fight at the Bergen County Courthouse in Hackensack, authorities and witnesses said.
The Slippery Slope
Everyone enters into a negotiation with the intent to be honest. But- ay- that is the “rub”. One party’s (“Jane”) definition of “honesty” may be different than the other party’s (“Mary”). Why? Research has shown that one’s honesty will vary with the environment.
To Build Rapport- Laugh Together!
Well- we missed it! March 20 was International Day of Happiness. Evidently, it was created by a United Nations Resolution passed at its 118th plenary meeting on June 28, 2012, declaring March 20th of each year to be the holiday. As one might guess, the resolution was promoted by the Kingdom of Bhutan which has a Gross National Happiness Index.
The Value of Joint Sessions
Over the last few years, the trend in California has been not to hold joint sessions in mediation but, to conduct the entire mediation using separate sessions so that the adverse parties are never in the same room at the same time.
The Priming Effect of Temperature
Roaming around on the internet the other day, I stumbled across an interesting article on LiveScience.com about the effect of temperature on our psyches. Entitled, “5 Weird Ways Cold Weather Affects Your Psyche”, the author Laura Geggel discusses different studies showing that we react differently depending upon whether a room is hot or cold. While the March 11, 2015 article discusses 5 “weird ways”, three of them are pertinent to negotiations.
Snap Judgments. We all make them … and how they can lead us astray! This obvious point is made in a blog posted on March 2, 2015 on the Harvard Program on Negotiation’s blog website ( entitled “How Snap Judgments Can Lead Negotiators Astray In Negotiation Conversations” ).
Mediation Confidentiality Strikes Again
Once again, an appellate court in California has confirmed the “…near categorical prohibition against judicially crafted exceptions to mediation confidentiality.” In Amis v Greenberg Traurig, LLP et al, (Issued March 18, 2015, Case No. BC 426815) (Id. at 8.), the Court of Appeal for the Second Appellate District held that mediation confidentiality precluded an attorney malpractice action from going forward.
Article on Advocacy
Several months ago, Joan Kessler asked that I provide an article to be included in the ADR issue of The Advocate. Since then, I have pondered on what I should write about. For inspiration, I went to my weekly blog which I have been posting since August 31, 2006. Reviewing them, I noticed a recurring theme: preparation for mediation. At least twice a year, I posted vignettes about mediations gone badly due to a lack of preparation. Because preparing for mediation is so important, I would like to share them with you, as my contribution to this ADR issue of The Advocate.
“Good Faith” vs. “Naive Realism”?
Perhaps I am an idealist, or even though a baby boomer with many years of litigation experience behind me— a bit naïve. Or –perhaps it is because I am a mediator and so am privy to both sides of the dispute and can see the “story” as an outsider or bystander. I do not know.
Is Conflict Like Driving?
Recently, the Kluwer Mediation Blog posted an interesting discussion about the cognitive biases at play during a dispute. What caught my interest is that the author- Charlie Irvine- used the example of driving to make his point.
Benefit Vs. Purpose
My first mediation of 2015 settled based on pragmatism. It was a lemon law matter filed under California's Song Beverly Consumer Warranty Act - Civil Code Section 1792 et seq. Plaintiff purchased the vehicle from a neighbor somewhat on a whim, thinking she would use it for commuting. Unfortunately, Plaintiff found herself taking the vehicle in for repairs quite frequently- too frequently for her liking. While Plaintiff thought the vehicle to be a "lemon", the defendant manufacturer took a hard look at the repair orders and found that many of the concerns were repaired after one attempt.
California's Legislature - Hard At Work Once Again-2014
Each year, I find it interesting to look through the new laws enacted by the California legislature to see if my tax dollars were well spent. Once again, the legislature was "hard at work."
Giving Yourself Permission
The holidays are upon us, and with them come the usual stress and tension that family events often bring. Over Thanksgiving, I had an experience that put it in perspective for me. Although I am supposed to be the conflict resolution person, it was a cousin that gave me a very much needed "reality check", if not "permission" to think differently about family loyalty.
Mediations Are Supposed To Be Confidential... But Are They Really?
Many times a mediator has analogized mediation confidentiality to the television ad, "What happens in Vegas, stays in Vegas" to explain the sacrosanct nature of mediation confidentiality. But, are mediations really confidential? This article was reposted to ensure mediators are fully aware of this important topic.
It Is All In Your Perspective!
The December 2014 edition of The Atlantic contains an interesting article entitled "The Real Roots of Midlife Crisis" by Jonathan Rauch. In it, he notes that mid-life crisis is not a unique reality to the United States. Rather, it is a worldwide phenomenon explained by science and more particularly the "U" or happiness curve.
Thanksgiving Through The Centuries!
Thanksgiving will soon be upon us. And while we will all give thanks for the many blessings that we have, I thought I would share some of the lesser known, but interesting facts about our national holiday. (Spoiler alert: This blog has absolutely nothing to do with mediation!--maybe just communication and national culture?)
Time Is "Like-The-Present"
There is an old adage, "Why do today what you can put off until tomorrow?" And indeed, many of us do just that because time is a precious commodity of which there is never enough.
Did Hunger Sabotage A Mediation?
The other day, I conducted two mediations between the same plaintiff's counsel, the same defendants and their counsel. The only different party in the two mediations was the plaintiff. One mediation was to start in the morning and the next in early afternoon, figuring each would take about 3 hours.
Mediation 101: Know What It Is That You Want!
I had an interesting mediation the other day. I say "interesting" as I am not sure what other adjective to use. Like most of my mediations, it involved an automobile. The plaintiff claimed that the defendant, a used car dealer, misrepresented several important details in the financing of the used automobile that she was purchasing. As a result, she was suing.
It Is All In The Attitude !
Once again, the New York Times has published an interesting article in its Sunday Review section on September 5, 2014 entitled "Liking Work Really Matters" by Paul A. O'Keefe. The thesis is that when we really enjoy what we are doing, we can do it for much longer than if we find it to be tedious. Our mental gas tank is nowhere as depleted when we are in the "in the zone" or in "flow": "During a flow state, people are fully absorbed and highly focused; they lose themselves in the activity." (Id.)4545
Should Your Next Mediator Be An Avatar?
Once again, The Economist has reported on an interesting study concerning artificial intelligence and psychology. In its August 16, 2014 edition, the authors of "The Computer will see you now" discuss a study in which the participants chatted with an avatar.
Duologue: Inattentive Conversing
Daniel Simons and Christopher Chabris discuss the notion of Inattentional Blindness or how when we are looking at a scene, we may become so focused on one particular aspect of what we are viewing that we miss the other objects or stimuli that are in plain sight. "Inattentional Blindness occurs where attention to one thing causes us to miss what to others may seem to be blindingly obvious. We have a limited ability to focus and attention in one area can distract us from another area."
In the last few weeks, I have published blogs about the way we think. That is, while we use System 1 throughout most of the day, it is intuitive, lazy, and emotional and does not always lead us down the correct path. In contrast, our System 2 is analytical, deliberate, slow, effortful and rational. It takes effort to use it, uses up energy, and being the lazy souls that we are, we tend to default to System 1 thinking as much as possible.
Be Sure To Get Some Sleep !
Once again, another study has connected sleep deprivation with cognitive function. And, it provides some good news and some bad news. The bad news is that if a party witnesses an event while sleep deprived, and then is asked later to recall the event while still sleep deprived, she will recall it inaccurately; that is, she will have a false memory of it.
To Mediate Or Not To Mediate Now, That Is The Question
With the upmost respect and acknowledgment to Hamlet's famous soliloquy in Shakespeare's Hamlet, (Act 3, Scen3 1, lines 55-87), the question often arises of when should the parties attempt to negotiate a settlement, through mediation or otherwise.
Vengeance Shall Never Be Yours!
In a recent post, I discussed that the best way to calm someone down is to address the emotion and not the words. I learned this in a training session with Douglas E. Noll. However, I did not explain the theory behind this strategy.
Which System Is In Control?
In his bestselling book, Thinking Fast and Slow, Daniel Kahneman (Farrar, Straus and Giroux, New York, 2011) notes that our brains contain two systems of thought: System 1 which "... operates automatically and quickly, with little or no effort and no sense of voluntary control" (Id. at 20) and System 2 which "...allocates attention to the effortful mental activities that demand it, including complex computations...." (Id. at 21.)
Quite often, one party accuses the other party of not negotiating in "good faith". I never gave much thought to the precise meaning of this term until I attended an entertainment law seminar in which one of the speakers mentioned that most entertainment contracts contain a clause requiring the parties to negotiate the terms "in good faith". He then queried how does one really determine if this clause has been breached, and if so, how does one then calculate damages?
It Is All About The Food
Something tells me that being a foodie if not a chef should be part of the job description of a mediator. About a month ago, I wrote about a study that showed how one's grumpiness and thus willingness to settle disputes depends on the level of one's blood sugar; the grumpier one is, the greater the likelihood that one wants to stick pins in a voodoo doll representing the opposing party.
Let us suppose that you are at a mediation or in some sort of negotiation and the other party has just said something that has gotten you so angry, you are ready to grab your belongings and storm out of the mediation/negotiation.
Is There A Bad Faith Exception to Mediation Confidentiality?
This articles analyzes an order of a federal court providing that mediation confidentiality would not apply to prevent an insurance company from using statements made during mediation to defend itself against claims of insurance bad faith.
Is There A Bad Faith Exception To Mediation Confidentiality?
Recently, I received an e mail alerting me to an order of a federal court providing that mediation confidentiality would not apply to prevent an insurance company from using statements made during mediation to defend itself against claims of insurance bad faith.
I Am Better Than You Are!
The Lake Wobegon effect, a natural human tendency to overestimate one's capabilities, is named after the town. The characterization of the fictional location, where "all the women are strong, all the men are good looking, and all the children are above average," has been used to describe a real and pervasive human tendency to overestimate one's achievements and capabilities in relation to others.
The Five Stages
In 2000, when I took my first mediation training class, my teacher discussed the five stages of loss and grief first proposed by Elisabeth Kubler-Ross in her 1969 book, On Death and Dying. The particular training course I was attending focused on divorce mediations and so the stages were relevant because of the loss and grief suffered by the parties in a divorce.
It's All about the Relationship
In 2000, I decided to move away from practicing law because I got tired of fighting with opposing counsel and being labeled and treated as the "bad guy" simply because I was representing an allegedly "bad guy". It seemed that civility and professionalism among lawyers no longer existed, and I and my clients were continuously lumped together as "hated and despised" individuals.
Pinning the Tail on the Donkey Blindfolded
Not every Plaintiff wants to settle her lawsuit. Some, who are wealthy and have time on their hands, enjoy the "game" for the sake of the game. Some plaintiffs are risk takers who enjoy the "ride."
So, once again, in recalling the facts surrounding a dispute, beware; our memories are not what we think they are, and unknowingly, our memories will revise the history of what happened and/or how it happened. To resolve the dispute, it will help NOT to be adamant about the facts giving rise to it. Rather... focus on the future to get it settled. Our memories, while they may be time travelers to the past, have not yet become time travelers to the future.
The Subtleties of Memory
All disputes are premised on what occurred in the past, with the view of resolving matters by looking forward. We are often told not to "dwell on the past" but to "look forward" in trying to figure out how to best resolve the issues. For some participants, particular older participants, it may not be so easy to quickly look to the future.
The "Paradox of Choice" and the "Sweet Spot"
The other day, I came across an article on the PBS NewsHour website entitled "Is the famous paradox of choice a myth" by Barry Schwartz dated January 29, 2014. Evidently, there is much controversy whether too many choices create a paralysis.
The Good, the Interesting, and the Modern
It is Friday afternoon, and I am bored. Being desperate, I decided to review the Daily Journal's supplement of "New California Laws for 2014." Not only did I manage to stay awake throughout the entire 70 pages, I actually found some interesting laws.
In 1992, John Gray, Ph.D. published Men Are From Mars, Women are From Venus (HarperCollins Publishing 1992) to explain why men and women have difficulty communicating with each other.
Looking Backward to Go Forward -- Mediation in the New Year
Notably, as 2013 marched towards New Year's Eve and the beginning of 2014, each of us looked back on 2013, thinking about different events and how they could have/should have/ would have turned out differently if we had altered our behavior ever so slightly or had done something differently.
It's all in the Wag of the Tail
I am a dog lover; so any story about dogs catches my eye, and I will find a way to relate it to negotiation/mediation. Here is my latest.
What is Your S.W.O.T.?
A few months ago, I attended a board of directors meeting of the SCMA Education Foundation. At the meeting, the president started talking about "S.W.O.T. Analysis". Not having majored in business, I had no clue to what she was referencing.
There is a study by Art Hinshaw and Jess K. Alberts about ethics in negotiations using practicing attorneys from metropolitan Phoenix and metropolitan St. Louis, Missouri who were asked how they would react in hypothetical situations during mediation. The results indicated that only about 62% of the attorneys would act ethically in a hypothetical negotiation while 19% indicated they would not act ethically, and the remaining 19% were not sure how they would react in the hypothetical situation.
The Good and bad of Eye Contact
Is eye contact a good thing or a bad thing? Some will answer by saying it depends upon the person's cultural background as Westerners value sustained eye contact while Middle Easterners and/or Asians will view it as inappropriate. Others will answer by saying it depends on which study is under discussion.
Are you a Nervous Negotiator?
Do you have sweaty palms and a churning stomach whenever you have to negotiate something? Or, are you as cool as a cucumber during such events. A recent study indicates that your nervousness or lack of it affects the outcome of your negotiations.
Negotiating With Fallible Memories: Buyer Beware
When it comes to relying on our memories in negotiation, the cautionary tale is buyer beware! Once again, another study has been published demonstrating that our memories are quite fallible. They are simply not nearly as reliable as we think they are, and consequently, we should not rely on them in the courtroom (or in everyday life, for that matter.)
Perception and Transparency in Mediation
Perception and transparency. Both are very important in mediations and negotiations but can be so easily overlooked.
The “Too Attractive” Bias
A 10-year employed dental assistant in Fort Dodge, Iowa was terminated because she was “too attractive.” Initially, the Iowa Supreme Court affirmed the decision of the trial judge. The dental assistant petitioned for rehearing and, for only the fifth time in a decade, the court granted it. Their decision and the implications of it show us how important it is to be aware of our biases and the actions around them.
Negotiating when there is no BATNA!
Recently, I conducted a mediation in a matter which probably should never have been filed as a lawsuit; the economics simply were not there. Realistically, plaintiff could not have a Better Alternative to a Negotiated Agreement (BATNA); every scenario would have been more costly no matter what the amount of the settlement.
Preparation is the Key
Value is always in the eyes of the beholder: what it is worth to them. But it is often very difficult to determine where to start your negotiation so as have enough room to negotiate as well as to engage your counterpart.
The "Too Attractive" Bias
On Sunday, October 13, 2013, I will be participating in a panel presentation entitled, "Ethical Duties of Eliminating Bias in the Legal Profession" as part of the California State Bar's Eighty Sixth Annual Meeting in San Jose, California. The focus of our discussion will be hidden/implicit biases- those biases that exist within us, subconsciously, if not unconsciously. When do these actually become discrimination?
Where Is The Gorilla?
Recently, Dr. Trafton Drew, a psychologist at Harvard medical school took this study one step further. He took a CT chest scan and superimposed a match-box size image of a gorilla into some of the scans. He then asked very experienced radiologists skilled in spotting tumors who normally will spot tiny abnormalities on a CT scan within seconds to view the scan and state whether they spotted anything out of the ordinary.
It Did Not Happen That Way!
If you have ever been in a dispute or in a conflict with someone (and who hasn't!), at some point, the "facts" of what allegedly happened are dissected. More often than not, there is disagreement about exactly what happened. It becomes a "he said, she said" argument in which credibility becomes more important than the "true" facts.
I just finished reading a book by J. Anderson Little, Making Money Talk (How to Mediate Insured Claims and Other Monetary Disputes) (ABA Publishing 2007). The book has a lot of practical advice both for mediators and for disputing parties. In simple terms, Mr. Little explains that most disputes which seemingly involve money, in actuality, involve emotions and more particularly, the perception that one is being personally attacked by the other party.
Bad Information; Bad Decisions
I am a firm believer in the adage that one cannot convince someone to change her mind unless and until she is provided with new or different information. Thus, during the course of mediation, I am unable to change a party's view of the settlement value of a matter without providing more information.
Mediation: I am Too Hungry to Decide
Recently, I conducted a mediation that went much longer than expected. It started at 11:00 am and after a couple of hours, I could see that the session would not conclude anytime soon, so I ordered lunch for everyone. Around dinner time, it appeared that we would soon be finished so I did not order dinner.
In short, more often than not... it is the passage of time and new information that causes parties to change their "bottom lines" and thus move into ZOPA.
Mediations: Thinking Outside the Box
Recently, I conducted three mediations almost simultaneously. While I have conducted two mediations somewhat at the same time because the first one did not conclude before the second one was scheduled to start (and I do not like to keep people waiting!), this was a first for me.
Elements of an Unsuccessful Negotiation Strategy
Negotiation strategy and legal malpractice claims have much in common. This point struck me as I read an article in the California state e-bar journal dated May 2, 2013, listing ten items that can lead to a legal malpractice claim. Looking through them, I realized that many of them will also lead to an unsuccessful negotiation, if not poor negotiation strategy.
The Arbitration Fairness Act of 2013
One can imagine the impact this arbitration ruling has had since its issuance two years ago. All large companies can now compel consumers to file individual arbitration claims to pursue their rights. But, if the claim is like that of the Concepcions'- $30.22- who is going to pursue it and as importantly, what attorney will even handle it?
The Subtlety of Actual Mediations
Most folks think that the purpose of mediation is to settle cases. However, in the last few weeks, I have conducted some actual mediations that were "successful" yet did not settle. Although the parties came to mediation with the goal of settling, they walked out accomplishing other purposes.
I know I may sound like a broken record as I have discussed each of these points several times before - but they are invaluable and make the difference between resolving a dispute and continuing the acrimony.
In some mediations, I have witnessed the “nibbling” approach: one party keeps making demands on top of demands, often very small ones, in an effort to get the other party to reach a breaking point and either cave in to the demands or storm out of the negotiation.
The Winner’s Curse
Suppose you have a jar of coins and ask several friends to bid on the jar. The highest bid will be deemed the winner. According to Richard H. Thaler two results will occur: “(1) the average bid will be significantly less than the value of the coins (bidders are risk adverse); (2) the winning bid will exceed the value of the jar”. This is known as the “winner’s curse”.
A few weeks ago, I conducted a “lemon law” mediation. Over the past few months, most of these have been conducted by using separate sessions only; counsel have not wanted to participate in joint sessions. However, this time, plaintiff’s counsel wanted to hold a joint session. Defense counsel who had worked frequently with plaintiff’s counsel in the past and had a cordial relationship with plaintiff’s counsel, agreed.
Less E-Mail, More Talk
I have never been a big fan or, in truth, much of a fan, of e-mail. I prefer to pick up the telephone and have a real, live actual conversation. Why? To get to know the person, or to get to know her better. Simply put, it is “building rapport”!
Everyone is waiting to see how this abolition of the Court’s mediation program will affect not only the mediation business, but the Courts in terms of case load and backlog for setting trials. If Mr. Randolph is correct; that our amygdala kicks in and prevents us from seeking a non trial by fire resolution unless we are forced to do so, then the LA County superior court system is in for a whole lot of trouble.
Fairness: It Is All About Perception
Cultural norms are viewed along a collectivism-individualism continuum. If a culture is collective, it places stronger emphasis on the group as a whole. If the culture is individualistic, it places stronger emphasis on the individual’s personal goals and interests.
A Reality Check
One of the jobs of a mediator is to provide a “reality check”; to be a neutral, dispassionate third party, who can be objective and discuss with a party the “downside” or “adverse consequences” to her side of dispute. The goal is to have that party accept what is being said and to act accordingly.
Another Study on Fairness
Researchers have wondered how long ago did our ancestors acquire a sense of “fairness”? The latest research, published a few weeks ago, claims that this sense of fairness arose millions of years ago, “… before our ancestors split off from the evolutionary lines leading to other primates.” (Id.) The principal author of the study is Darby Proctor of Emory University’s Yerkes National Primate Research Center in Atlanta.
We All Change… More Than We Admit!
Have you ever been asked to imagine during a negotiation or a mediation what the future will look like if you (1) settle the dispute under the terms being proposed; or (2) do not settle the dispute under the proposed (and/or different) terms? No doubt, your response assumes that your reactions, values, preferences, core values, and other aspects of your personality will be the same as they are now. In short, you assume you will be the same person six months from now as you are today.
A Mediator’s Wish List
Somehow, several years ago, I got on the mailing list for The Indian Arbitrator which is the “News Magazine of the Indian Institute of Arbitration and Mediation.” Its articles do not focus solely on developments in India but actually on things occurring throughout the world.
Meeting Needs and Interests
It is often said that to resolve disputes, the respective needs and interests of each party must be met. Indeed, this is the thesis of Getting to Yes by Fisher and Ury, the seminal book on negotiation strategy and resolving conflicts.
Timing is Everything
I conducted a mediation recently that exemplifies this point. According to Plaintiff, she was the victim of a “bait and switch”. According to defendant, plaintiff suffered no damages, and thus, has no case- it lacks merit. Needless to say-quite divergent views of the same case!
When Should I Mediate?
Recently, someone asked me, “When should I mediate my dispute? Should I wait until the lawsuit is filed? Should I wait until depositions are taken or motions for summary judgment are filed and/or heard? When IS a good time to mediate?”
Resolving Logistics: An Online Negotiation
Analogizing to employment litigation in which a terminated employee sues and is stuck in the past, dwelling on the old job and boss until she gets a new job and then starts putting the termination behind her, I decided that the best way to get over Argus was to get another dog. So, my husband and I went online to the English Springer Spaniel Rescue (ESRA) and started looking for dogs. We soon found “Cookie”- an adorable 2 year old female who is listed as being in Fort Collins, Colorado but is actually living in Rock Springs, Wyoming.
Improv and Negotiation
I read an article posted on the Harvard Law School Program on Negotiation’s website discussing the similarity of improvisation and negotiation. In both, one must be quick on her feet- ready for anything at any moment. In both, one must be ready “… to seize unexpected opportunities and respond swiftly to sudden threats.” (Id. at 4.) The good negotiator, like the good improv actor, must be acutely attuned to the situation at hand, realizing quickly if she has overstepped her bounds and how to respond appropriately about it, including an apology when necessary.
The Other Person’s Viewpoint
Often, in mediation, I suggest to a party that she look at the issue from the viewpoint of her adversary, i.e., the person sitting in the other room. I do this in an effort to have that party become more open in finding a solution to the dispute; to realize that the “story” or narrative has many sides to it.
Anchoring and Fairness
Two weeks ago, I posted a blog about “cognitive bias”. As explained on ScienceDaily.com, “a cognitive bias is any of a wide range of observer effects identified in cognitive science and social psychology…that are common to all human beings.”
How is Your Mood?
Two different blog posts on the Program on Negotiation at Harvard Law School’s website suggests that mood and one’s emotions play an important role in negotiations. If one negotiate while in a bad mood, chances are the negotiations will not turn out well. For this reason, we, intuitively, wait until someone is in a good mood before discussing a sensitive or difficult topic with her. But, one of the blog posts notes that this may actually work against us.
An Update To Proposed Mediation Regulation
On August 3, 2012, I posted a blog about Resolution SR-05-01-2012 that was proposed to the California Conference of Bar Associations by Bay Area Lawyers For Individual Freedom. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the Conference at California’s Annual State Bar Convention would not only change the definition of “mediator” in California but also implement mediator regulation by the State Bar of California.
Once again, The Economist reported on another quirky study. In an article entitled “Tall dark and stable” in the psychology section of its July 14, 2012 edition, the author discusses how “wobbly furniture leads to a desire for emotional stability.”
Don’t Take Advantage of Me
The Economist (in an article entitled “ ‘Snot Fair”) discusses a research project conducted by Dr. Nicola Raihani of University College, London and Katherine McAuliffe of Harvard recently published in Biology indicating that people will cry “foul” when they are taken advantage of or cheated out of something in a way that makes the culprit or cheater better off than they were.
Recently, several different organizations have brought to my attention, a resolution on mediator regulation entitled SR-05-01-2012 proposed by Bay Area Lawyers For Individual Freedom to the California Conference of Delegates. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the California Conference of Delegates at California’s Annual State Bar Convention in October 2012, could find a legislative sponsor and conceivably become law. As it presents some very controversial issues, I bring it to everyone’s attention.
The business section of the Sunday (July 7, 2012) New York Times had an interesting article entitled “Don’t Indulge. Be Happy.” by Elizabeth Dunn and Michael Norton. Ms. Dunn is an associate professor of psychology at the University of British Columbia while Mr. Norton is an associate professor of business administration at Harvard Business School.
Grumpiness And Sharing A Meal
During one of my early meditation training classes, the teacher suggested that we set out food in the conference rooms during the mediation for at least two reasons. The first is that it provides an indication of how anxious/nervous/relaxed is each party. People do not tend to reach for food when they are anxious/nervous; only after they have calmed down/relaxed a bit, do they allow themselves to take a Danish. The second and more important reason is to allow the parties to keep up their blood – sugar levels and fight off grumpiness. People make bad decisions when they are gru
In Cullen v. Corwin, (Case No. C067861) ( Cullen v Corwin) Plaintiffs Joe and Marienne Cullen purchased a vacation home from Defendants Paul and Geraldine Corwin. They claimed that the Corwins “…acted either negligently or fraudulently in failing to disclose the defective condition of the garage roof when they sold a vacation home to the Cullens.” (Id. at 2.).
Recently, I had a sexual harassment employment mediation. Prior to the mediation and based on the briefs, I figured it was going to be either a very short mediation (i.e., the case would not settle) or a very long one (i.e. the case would either settle or almost settle). The facts of the alleged harassment set out in plaintiff counsel’s brief were diametrically opposed to those set out by defense counsel.
Mediation Confidentiality is Alive and Well in the Tenth Circuit
Readers of not only my blog but those of other California neutrals are no doubt familiar with all of the hullaballoo raised over AB 2025- the California Legislature’s attempt to exclude actions for legal malpractice and disciplinary actions from the cloak of mediation confidentiality. At present, that assembly bill has been amended to simply refer the whole issue to the California Legislative Review Commission. It will be quite a while before we hear from the Commission.
What Does Fairness Have to do with It?
In my years as a mediator, it has struck me that the smaller the dispute, the harder it is to settle. And, I have always wondered why. Well, my friend and colleague, Maria Simpson, Ph.D., in her most recent Two Minute Training, explained the “why” quite succinctly: it is all about “justice” and “fairness”. She was mediating a “straightforward” collection case in which one party was suing two others for payment for work performed. The defendant though questioned the quality of the work and refused to pay.
Mediation Confidentiality: Update on AB 2025
On February 23, 2012, Assembly Bill 2025 (ab_2025_bill_20120223_introduced) was introduced in the California legislature. The intent of the bill was to abolish mediation confidentiality with respect to “… communications between a client and his or her attorney during mediation, in an action for legal malpractice or breach of fiduciary duty or both and in a State Bar disciplinary action, if the attorney’s professional negligence or misconduct forms the basis of the client’s allegations against the attorney.
It's All in the Delivery
My colleague, Ms. Simpson, suggests that if one must shift to pressure, do it with a light touch – stay calm, quiet and respectful in your delivery. This reduces defensiveness and may even produce trust to the point that the party will be open to what you are saying.
Science never ceases to amaze me. Now there is a study that finds that being too happy is not a good thing. According to an article in the April 2, 2012 edition of The Washington Post entitled “Too much happiness can make you unhappy, studies show”, one can be less happy by being so happy. Sounds oxymoronic to me!
Mediation as a Business
Most mediators I know are passionate about their work and about bringing peace to the world. We like to think of ourselves as “peacemakers” and that our goal is to assist others in resolving disputes. Consequently, we may not always focus on the fact that mediation is a business or that, in fact, we are “peacemakers for hire.” Like others, we need to be paid so that we, too, can pay our rent or mortgage, put food on the table and provide for our kids (or, in my case- my dog, Argus.)
Even Chimpanzees Use Conflict Resolution
A recent study found that even chimpanzees use conflict resolution in the form of policing (i.e., arbitration/mediation) to resolve their disputes and/or to prevent them in the first place. Further, like humans, they look to those with status or high rank, to resolve the erupting conflict.
Proposed Legislation To Do Away With Mediation Confidentiality
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.
Which Option Do You Prefer?
As I have mentioned in previous blogs, I mediate an awful lot of “lemon law” cases. Frequently, the issue is whether the defendant manufacturer will “repurchase” the vehicle, or pay the plaintiff consumer a “sufficient” amount of money to entice her to keep the car, also known as a “cash and keep” settlement.
As a mediator, I am trained not to assume, and to ask questions. Sometimes, when I am acting as me (and not as a mediator), that training goes out the window; sometimes, it does not. Sometimes, I catch myself in time and reinforce a valuable lesson: never assume.
The Power of an Apology
It is often said that the smaller the amount in dispute, the harder it is to settle the matter. I agree. . . having just experienced such a mediation. The matter was on appeal. The parties wanted to mediate before the opening brief was due in the hopes of settling early and before much time and expense had been invested.
Expect the Unexpected
One of the more memorable movie lines is from Forrest Gump (1994) when Gump comments “My momma always said, “Life was like a box of chocolates. You never know what you’re gonna to get.” ”
I have conducted a few mediations in which either the plaintiff or defendant has tattoos – sometimes small, sometimes not so small. In such instances, I have, at times, taken his/her counsel aside and pointed out that the tattoos may give the wrong impression to a jury. While the response I often receive is that if the matter does go to trial, the party will wear long sleeves or other clothing to hide the tattoos, my comments are not lost on counsel; if counsel has not already had that conversation with her client, she proceeds to do so during the mediation.
Attending By Telephone
Although the general consensus among neutrals is that the parties to a dispute should attend the mediation in person, at the same time, I have successfully mediated disputes in which one or more or all involved have attended by telephone. Indeed, I have conducted several mediations solely via telephone with success: the cases settled.
Try Something New for 2012: Trust
First and foremost, I want to wish each of you a very healthy, happy, prosperous and peaceful New Year. To obtain that peace and a peaceful resolution to all of your disputes, may I suggest something different and oxymoronic: trust. That is right, “trust”. Why?
What's Your Generation?
The second issue of ADR Times Perspectives (Vol. 1, No. 2, Nov. 2011, hit my e-mail inbox the other day. Having enjoyed the first issue, I eagerly thumbed through this second issue and found an interesting article by Jasper Ozbirn entitled “Generational Gaps in the Workplace” (at pages 8-9.) According to its author, the purpose of this article is “. . .to provide the briefest of primers on how generational differences can play out in the workplace to create a conflict.” (Id.)
When a Bully Refuses to Dance!
Recently, I posted blogs on the necessity of “dancing” and on “difficult people”. This past week, both topics collided in a mediation! What an experience!
You Must "Dance"
The other day, I found a new online magazine in my e-mail box. It was the very first edition, Vol. 1, No. 1 (October 2011) of ADR Times Perspectives on Dispute Resolution.According to the message from the Editor – Ms. Mikita Weaver – this publication started out as an interactive blog, gradually shifting to this very first edition of ADR Times.com covering negotiation, mediation, arbitration, diplomacy and peace.
Routinely, most local rules of court require that persons with the ultimate authority to settle a matter be physically present at a court settlement conference or mediation. While it does not take much thought to understand the rationale behind this requirement, it may take a bit more thought to appreciate the consequences of not honoring it.
Deciphering Life via Game Theory
Mr. Mubarak’s influence waned as cuts in American aid threatened his ability to keep cronies in the army and security forces happy. Underemployed citizens then realized that disgruntled officials would be less willing to use violence to put down street protests against the ailing dictator.
SCMA's 23rd Annual Conference
The conference itself, on Saturday, November 5, 2011 at the Strauss Institute of Dispute Resolution at Pepperdine University’s Law School in Malibu, includes sessions exploring the many different aspects of mediation: international, intercultural, transformative, ombudsman, online and even conflict coaching. By the end of the day, we will have all learned how pervasive mediation can be in our everyday lives.
The other weekend, I attended the California State Bar Convention. There, my colleague Steve G. Mehta Esq. presented a seminar entitled “Dealing with Difficult Clients and Opposing Counsel: Successful Strategies and Tactics.” (Dealing With Difficult Clients ) As Mr. Mehta had only one hour to get to the heart of the matter, he provided excellent practical advice.
Why Mediation is Important
In each of these cases, the Court’s ruling either shut the courthouse door completely in the plaintiff’s face or made it so prohibitively expensive, and/or time consuming to go forward that, in practical terms, the door to the courthouse is slammed shut.
What You Admit Can Haunt You
Oftentimes, during litigation, a party will serve a set of requests for admission on another party asking the latter to admit or deny certain facts or that certain documents are genuine.
What Were They Thinking?
On August 31, 2011, the Second Appellate District of the California Court of Appeal issued an opinion that while ostensibly discusses the validity of an arbitration provision, recites facts that are so bizarre, one can only wonder, “What were they thinking?”
Forward-looking outcomes, emphasizing improved future relationships, are thought to lead to more durable agreements than backward-looking outcomes concerned with settling past grievances and reparations. These arguments are based on the idea that justice (or fairness) promotes trust which results in more stable relationships.
Getting What was Actually Paid
Let us suppose that Jane Jones is driving along one of the many freeways in Los Angeles, and as is typical, the flow of traffic suddenly and abruptly comes to a halt.
Confidential is Confidential
In my April 16, 2010 blog, I discussed the appellate decision of Porter v. Wyner, Case No. B211398 (April 8, 2010) (“Porter”). In that decision, the Second Appellate District of the California Court of Appeal held that mediation confidentiality would not protect attorney-client communications.
Crying Doesn't Help
As a mediator, I am sometimes confronted with a party who starts to cry as she tells me her story or relates some aspect that is very emotional. My inclination is to hand her a box of Kleenex and attempt to assure her that it is alright to cry and, in fact, will probably do her “good.”
The Next Chapter: Mediation Confidentiality
In January 2011, in Cassel v. Superior Court (2011) 51 Cal 4th 113 (“Cassel”), the California Supreme Court once again iterated that mediation confidentiality absolutely precludes the admission of anything that occurred during the mediation, in any subsequent litigation. Thus, as in Cassel, where a party alleges that his counsel committed legal malpractice during the mediation, that party is precluded under California’s mediation confidentiality statutes (Evidence Code §1119 et seq.) from seeking any sort of redress for the alleged professional negligence and/or breach of fiduciary duty purportedly committed by her counsel during the mediation.
Are You Irrationally Invested?
Be very aware of your competitive inclinations and what triggers them to escalate. Focus on getting the best deal and not beating the other side.
Deciding My Dispute
Somewhere in my mediation training, I was introduced to the American Bar Association’s Model Standards of Conduct For Mediators.
Understand Your Own Case
All of the above came to light in the first few moments of the mediation. Needless to say, the mediation ended abruptly; plaintiffs’ counsel terminated the mediation upon realizing that she had a lot of work to do to try to oppose the appeal at this late date. Not surprisingly, neither plaintiffs nor their counsel were able to change their mindset about their case on such little notice. They needed time to go back to regroup and to process the information they learned at the mediation.
Understanding Our Own Biases
We interpret new experience based on past experience that has created a certain lens or framework through which we understand everything, but sometimes new information is distorted by the old frame.
Even Beers Collaborate
The story of a beer entitled "Collaboration Not Litigation." At times, the whole is greater than the sum of its parts.
The "Right" Brain
Quite a lot of information was packed into the training with Bill Eddy. The challenge will be not only to try to remember all of these tips but to implement them the next time they are needed. I will definitely have to engage my left brain to accomplish this!
Certain Things About Mediation Are Inviolate!
In this case, Plaintiffs sued Verizon Communications, Inc. and its subcontractors for nuisance and negligence. In laying underground fiber optic cable, one of Verizon’s subcontractors punctured a lateral sewer line connecting the Plaintiffs’ homes to the city’s main line. As a consequence, the homes were flooded with raw sewerage.
This article describes the importance of giving back in a high conflict environment.
Back to Basics
Contrary to what occurs in most pre-schools, while these pre-schoolers had lots of energy and were very active, they did not fight, yell or whine.
We Argue to Reason
Mediation as a Lesson in Neuroscience
When I decided to become a mediator, I never realized that I would need to know a little bit about neuroscience to settle disputes. Indeed, the basic training classes I took never mentioned the notion that neuroscience has a lot to do with resolving disputes.
Keeping a Case Settled
Phyllis Pollack discusses several questions to ask to help keep a case settled.
An Irrevocable Act
One good thing about mediation is that the parties are free to change their minds on any issue as many times as they want during a mediation. . . until they sign a settlement agreement.
Mediation and Early Childhood Development
on Law Journal 183 (2010). (Bader,SelfandIdentity) In it, Ms. Bader shows the reader that the identity of self about which we all learned in psychology class plays a much more important role in negotiation and mediation than we think.
An American Hero
The other weekend I attended a retirement party for a neighbor, Kenneth R. Hughey. He is retiring as a Deputy City Attorney to go into a private criminal defense practice with a good friend. This will be his fourth career: he is 79 and a true American Hero!
I finally had the opportunity to read the book my colleague Victoria Pynchon, J. D., LL.M, recently published, A is for Asshole – The Grownups’ ABCs of Conflict Resolution (Reason Press 2010) and discovered that I should have read it much sooner as it is delightful!
Experts at Mediation: A Two-Edged Sword
Sometimes, a party may have her expert participate in a mediation by being physically present and/or preparing a report for use at the mediation. If the matter does not settle, the question then arises whether mediation confidentiality precludes the use of the expert and/or her report at trial; is she precluded from testifying? Is her report inadmissible at trial?
Just Like Me
As a lawyer licensed in California, I am required to take a certain number of continuing education courses, one of which is the elimination of bias.
A New Twist to the Lemon
In recent weeks, the California appellate courts have issued decisions on diverse topics. Two of these decisions, although seemingly disparate, may not be so, on closer analysis. By discussing the most recent one first, hopefully, my quandary will become apparent.
Back to Basics
A few weeks ago, my colleague Maria Simpson, PhD., in her weekly Two Minute Training (February 15, 2011), mentioned a story she had heard the previous day on National Public Radio’s Morning Edition about a pre-school that was teaching conflict resolution to four year olds. Contrary to what occurs in most pre-schools, while these pre-schoolers had lots of energy and were very active, they did not fight, yell or whine.
I conducted a “lemon law” mediation last week. It was a bit unusual in several ways. First, the repair history indicated that there were multiple issues with the vehicle that, despite innumerable days in the repair shop, had not been fully resolved: one or two of the many issues kept recurring
It Is Nice To Have A Good Dog Around
As I have admitted in the past, I am a dog lover. Well, it now seems that there is “scientific” proof to go along with my informal analysis that our 4 pawed pals aid the collaborative process. Last August 12, 2010, The Economist published a study, entitled “Manager’s Best Friend”, showing that dogs improve office productivity. As any dog owner knows, “dogs act as social catalysts, helping their owners forge intimate, long-term relationships with other people.” (Id.) This is no surprise to any dog owner: how many times while walking the dog have we stopped to engage in conversation about the dog or at least received comments about our canine friend as we pass by?
Often, in a mediation, one and/or both parties tell me that they would rather go to trial than accept or pay the sum of money (or other item) being discussed as a compromise of the matter. At this point, I discuss the risks of going to trial. Sometimes I am successful; sometimes I am not.
The “Fairness” Dilemma
Almost four years ago (February 23, 2007), I posted a blog on ‘Fairness”. I had attended a training session in which the teacher asked the very simple yet complex question “How do you define “fairness”? Is it from a legal viewpoint? Equitable viewpoint? Moral viewpoint? Ethical viewpoint? Cultural viewpoint? All of the above? None of the above?
Stand Up Straight
As a negotiator/mediator, is it important to be able to ready body language? Is a person’s body language a window into what she is really thinking or feeling? Some say “yes” while others will say “not necessarily.”
Once Again: Confidential Means Confidential
Once again, the California Supreme Court has held that the California statutes declaring that mediations are confidential proceedings mean exactly that: mediations are confidential, even at the expense of a potential legal malpractice action.
Catch 22: No “Day In Court”
As I do not conduct arbitration hearings, I normally do not pay close attention to court decisions on the subject. But one issued on January 4, 2011 by the Fourth Appellate District of the California Court of Appeal caught my attention. In MKJA, Inc. v. 123 Fit Franchising, LLC, Case No. D055967, the appellate decision may well have placed plaintiffs in a “no-win” situation denying them their day in court and justice.
How I Spent My Winter Vacation: Reading My Water Meter
Hoping to relax and rejuvenate, I took the week off between Christmas and New Years’ (even from blogging) and spent it at our condo in Palm Desert. What I did not count on was encountering my own dispute – up close and personal – against an unyielding bureaucracy. While I am a strong advocate of mediating not litigating disputes, I, once again, understand why at times one has to threaten litigation to get the other party to resolve a dispute.
The end of the year is upon us, and this fact usually affects people in one of two ways: happiness or sadness. Some love the Christmas – New Year’s holidays and go all out celebrating and decorating, giving and receiving. Others hate the holidays for a myriad of reasons, trying to ignore them and feeling sad with the ending of the year.
Why do we make mistakes? This is a really good question and one that we have probably each asked ourselves more than once. It is also the title of a book that I recently read (Why We Make Mistakes by Joseph T. Hallinan (Broadway Books, New York, 2009)) in which the author attempts to explain how our very scientific brain works in simple every day terms.
“Churning” The File: An Unprincipled Mediation”
A few weeks ago, I, unwittingly, conducted a “bad faith” mediation. One of the parties was clearly there with a dishonest purpose and an intent to seek an unconscionable advantage.
The Expedited Jury Act Has Come To California!
While none of us ADR Professionals were looking, California enacted a new form of alternative dispute resolution in the form of a summary jury trial.
Breaking The Rules
Mediations, like everything else in life, come in all shapes, sizes and colors. No two are the same or are ever alike. Usually, though, most of them will follow a similar pattern such that the principles of mediation will be applicable.
Springing “Surprises” At Mediation
On Monday, November 1, 2010, the California Supreme Court heard argument in Cassel v. Superior Court (Wasserman, Comden Casselman & Pearson, LLP – Real Parties in Interest), Case No. S178914. Therein, plaintiff Michael Cassel alleged legal malpractice against his former attorneys, Wasserman, Comden Casselman & Pearson, LLP, for allegedly forcing him to settle a case during mediation for an amount less than was acceptable. On the eve of trial, the defendant attorneys filed motions seeking to prevent certain communications from being admitted into evidence on the grounds that these communications occurred during a mediation and so were covered by mediation confidentiality. The trial court agreed, ruling that the conversations solely between attorney and client outside the presence of the mediator would be excluded by mediation confidentiality.
Curveballs: They Are Simply An Illusion
The other day, I tuned into National Public Radio which was in middle of a story about curveballs in baseballs; a study had just been published indicating that these pitches are not what they seem. A few days later when I had some free time, I decided to search for this study on the internet and came upon the very scientific discussion on PLoS ONE which was published on October 13, 2010 and entitled, “Transitions Between Central and Peripheral Vision Create Spatial/Temporal Distortions: A Hypothesis Concerning the Perceived Break of the Curveball.”
Signing On The Dotted Line
Settlement agreements can be difficult to get out of. The Sixth Appellate District of the California Court of Appeal made this point clear in its opinion in Chan v. Lund (Case No. HO34196 – Sept 29, 2010.)
Each year, the Southern California Mediation Association (SCMA) presents its Cloke-Millen Award also known as Peacemaker of the year award to a member of the dispute resolution community who has honored and inspired us through his/her passion and dedication to “peacemaking.”
I Sound Like A Broken Record: Come Prepared
If I had to list one thing that is a must for mediation, it would be “preparation.” I raise this again for the umpteenth time because I just conducted another mediation in which the lack of preparation by the plaintiff attorney controlled both the process and the outcome.
Do I Really Want To Work For “Free”?
The Los Angeles County Superior Court is the largest county court system in the United States. Unlike many other jurisdictions throughout the country, it provides free mediation services. The mediator provides preparation time plus three hours of actual session time for free. Thereafter, if the parties wish to continue, they may do so but must pay the mediator her market rate.
You Must Sign On The Dotted Line
Recently, a California appellate court re-affirmed the requirement that the parties, themselves, and not their attorneys, must either sign a settlement agreement or agree to it “on the record” in open court, for it to be enforceable. An attorney doing either as the “authorized agent” of her client is simply not good enough!
I read an article in the New York Times (August 24, 2010) about how important it is for our brain to have downtime so that it can process and absorb all of the stuff that we throw at it. This theme resonates with me because it is critical to resolving disputes.
The Second Appellate District Revisits Mediation Confidentiality
On August 19, 2010, the Second Appellate District of the California Court of Appeal issued an opinion in which it upheld mediation confidentiality. In Radford v. Shehorn (Case No. 2d Civil No. B216323) ( Radford v Shehorn), the court held that it was error to admit the declaration of a mediator into evidence on a motion to enforce the settlement but that the error was harmless. Consequently, the appellate court affirmed the trial court’s ruling to enforce the settlement.
Planning Is Critical
Each week my friend and colleague Maria Simpson, Ph.D. writes a Two-Minute Training tip. Although her August 10, 2010 topic, “Nine Steps For Successful Negotiations,” allegedly takes three minutes to read; it is well worth the extra minute. In essence, she sets out how to participate in a successful mediation:
Rights V Resolution
On July 17, 2010, the Southern California Mediation Association (“SCMA”) held its annual Townhall. As president, I had the honor of choosing the topic for discussion. I chose “rights v. resolution”, based on a presentation given by the Honorable Wayne D. Brazil, United States Magistrate Judge in the Northern District of California at the American Bar Association (“ABA”) Dispute Resolution Section’s Conference in New York City in April 2009.
The “Active” In Active Listening!
In its July 27, 2010 guest blog, Scientific American published an article by R. Douglas Fields entitled, “Of Two Minds: Listener brain patterns mirror those of the speaker.” In it, Mr. Fields discusses a study (published in the July 26, 2010 issue of Proceedings of the National Academy of Sciences) showing that simply by speech, a speaker “. . .can project her own brain activity onto another person” such that the neural activity of the listener will closely mirror that of the speaker. (Id.)
The Magic Words: Feel, Felt, Found
Earlier this month, my colleague Linda Bulmash published her July 2010 edition of Negotiation Tips for the Los Angeles County Bar Association (volume III, No 10, July 2010). Entitled “Avoid Confrontational Language”, Ms. Bulmash discusses what a mediator learns early on in her training courses: watch the words you use; be non-confrontational in your active listening and reframing.
Am I Stepping Over The Line?
When the parties settle a matter at mediation, I am usually very happy about it. But, I am also conflicted because the settlement creates issues internally that I have yet to resolve. Usually, once the parties settle, they want to document it and leave very quickly. But often, they have not brought a settlement agreement with them. They do not want to spend another hour or so drafting one; they would rather leave and document the settlement over the ensuing days. But doing so provides a party with the opportunity to change her mind and back out. Unfortunately, a settlement is not a settlement until it is signed by all concerned.
Benedict Carey has written another interesting article in the New York Times. Entitled “The Benefits of Blowing Your Top” (July 6, 2010), Mr. Carey discusses the effect that our emotions have on disputes. For example, some people, such as President Obama, deal with a crisis in a very calm, cool manner which exasperates others. In contrast, other people simply and quickly blow-up at the first hint of a dispute.
What If There Had Been A Good Peacemaker?
In truth, by the time this Declaration of Independence was adopted, the relationship between the thirteen colonies and George III had deteriorated beyond repair and to an all time low. In fact, the first battle of the Revolutionary War occurred at Lexington and Concord in April 1775 or more than a year before the colonies adopted this Declaration of Independence. But, what if a really good peacemaker (aka an ADR professional) had been invited to the table to mediate the dispute between the thirteen colonies and George III before the relationship was beyond repair, let’s say in 1763 when the dispute first arose?
In my February 19, 2007 blog, I discussed the unconscious assumptions that each of us makes about someone upon meeting him/her for the first time. That is, within seconds of meeting a new person, we “assume” certain things about that person. I re-visit this topic because it hit home with me in a recent mediation. To set the stage, I am mentoring a mediation student, Liz, who, as part of her training, sits in on my mediations.
Fairness And Self-Respect
In her latest column on Negotiation Tips for the Los Angeles County Bar Association (Volume III, No. 9, June 2010), my colleague Linda Bulmash discusses the dangers of “Take it or Leave it Offers,” noting that more times than not, such offers backfire. Why? Because of “fairness” or at least how “fairness” is perceived by the opposing side. Research indicates that emotion rather than logic takes over; a party would rather say “no” to a deal that may offer some benefit to her if emotionally she believes the offer to be “unfair.”
A Tribute To Richard Millen
As I have mentioned previously, I am the current president of the Southern California Mediation Association (“SCMA”). About a week or so ago, many of us gathered to honor Richard Millen, a co founder of SCMA and a leader in the Southern California mediation community who passed away in March 2010. I attended that tribute and want to share with you my reflections on that wonderful evening...
The “Accidental” Mediator
Sometimes, the goal of a mediator is not to settle the case but simply to prevent the dispute from escalating into all out war. I was reminded of this recently by getting into the middle of a dispute between two friends who have been separated for many years and now wanted to finalize it by a divorce. The only issue was the property settlement. To be noted well, I am not trained in family law, am not licensed to practice law in the jurisdiction in which my friends lived and being close to both of them, I have a huge conflict of interest (“Disclaimer”).
“But, You Have A “Great” Chance At Winning At Trial!”
In August 2008, I posted a blog entitled “Make the Deal: You Are Better Off,” discussing a study which concluded that settling was better than going to trial. Last week, I came upon another study which indirectly supports this earlier conclusion. Entitled “Insighful or Wishful: Lawyers’ Ability to Predict Case Outcomes,”(study) the researchers concluded that “overall, lawyers were overconfident in their predictions . . .” about success at trial and that the accuracy of their predictions “. . . did not increase with years of legal experience.” (16 Psychology, Public Policy, and Law, pp. 133-157, 133 ((No. 2.) 2010) “Study”).
The Social Construction Of Mediation
Why is “social construction” important? Because it plays a critical role in every dispute and thus in every mediation. Each of us comes to a mediation with our own construct of “reality” of the “true” facts of “what really happened.” We each have our own “story” built on our interactions with others. This is the “story” we bring to the dispute, we tell in a joint session and go into more detail with the mediator in a separate session.
Saying “I’m Sorry” Ain’t So Easy
As a mediator, I hear a lot about the value of apologies and how apologizing can make a difference in resolving (or not resolving) a matter and/or doing so for far less monetary value than would occur without an apology.
An Open Letter - Part 2
Last week, I discussed a legislative bill, AB 2475, introduced into the California legislature which, if passed, abolishes quasi-judicial immunity for mediators and other alternative dispute resolution professionals.(ab_2475_bill_20100408.) As President of the Southern California Mediation Association (“SCMA”), I sent a letter to the sponsor of the legislation, posted it on my blog and urged everyone to make their voices heard.
An Open Letter
In 1990, a California appellate court held that “absolute quasi-judicial immunity is properly extended to neutral third persons who are engaged in mediation, conciliation, evaluation or similar dispute resolution efforts.” Howard v. Drapkin (1990) 222 Cal. App. 3d 843, 851-860.( 222_cal__app__3d_843) Recently, California Assembly Member James T. Beall, Jr. introduced AB 2475 (ab_2475 ) which would abolish such quasi-judicial immunity not only in all court ordered mediations but in those held privately, as well, It is rumored that the genesis of this draft legislation was a family law matter that went awry. That is, as rumor has it, a family law evaluator (not a mediator) submitted substantive written recommendations to the court which adopted them. The consequences were disastrous for the family who sued the evaluator but lost due to this quasi-judicial immunity.
Mediation Confidentiality: Once Again
According to the Second Appellate District of the California Court of Appeal, mediation confidentiality does not and will not protect attorney-client communications. In Porter v. Wyner, Case No. B211398 (April 8, 2010), (Porter v. Wyner )this appellate court held that communications between an attorney and a client during a mediation are not protected by mediation confidentiality.
Partial Settlements – Beware Of The Pitfalls!
I have mediated many cases in which plaintiff contemplates settling with one defendant and proceeding to trial against the remaining defendants, on the assumption that she will still be awarded her attorneys’ fees as the “prevailing party.” This case makes it clear that such an assumption is no longer accurate.
The Many Purposes Of Mediation
It is often said that the purpose of mediation is to resolve disputes. Parties attend a mediation session hoping that, in a few hours, their dispute will be resolved. But, as is true with all aspects of mediation, sometimes we have to think “outside the box” in terms of why the parties are even attending a mediation session.
Actions Do Have Consequences
Several weeks ago, I, again, helped my colleague who teaches mediation by supervising two of her students while they conducted an actual mediation in small claims court.
The California Supreme Court issued an interesting opinion in January 2010 on attorneys’ fees. Although it has far reaching implications, it did not get much publicity.
Depression Leads To Good Outcomes
The Sunday magazine of the February 28, 2010 New York Times contains an interesting article entitled “Depression’s Upside” by Jonah Lehrer. Mr. Lehrer is the author of How We Decide which is a great book and is the subject of my January 15, 2010 blog.
The Pitfalls Of Evaluative Mediation
On Friday, February 5, 2010, I helped a colleague who teaches a mediation clinic in a local school by coaching some of her students conducting a mock mediation. That is, I observed the students conduct their first mediation (using a fact pattern given out by the professor) and provided suggestions. Each of the student mediators approached the task differently, but, they were all evaluative–telling Plaintiff she did not have much of a case and would lose. They each just conveyed this sentiment differently
The February 2, 2010 science section of The New York Times has an interesting article by Natalie Angier entitled “Abstract Thoughts? The Body Takes Them Literally.” Evidently, there is a field of science called “embodied cognition” which studies how the brain’s abstract thoughts are manifested in body movements.
Trust: A Simple Question Of Oxytocin
Trust – for a mediator, this is a very important issue. At the beginning of each mediation, a mediator must gain and build the trust of the parties. If the parties do not trust the mediator, they will place no value in the assistance she provides to facilitate a resolution. Her services and presence will be useless.
Mediation Confidentiality In Federal Court Revisited
Recently, I came across the unpublished decision in Benesch v. Green, 2009 WL 4885215, Case No. C-07-3784 EDL (N.D. Cal. Dec. 17, 2009) (“Benesch”)(Benesch v Green ) in which the Honorable Elizabeth D. La Porte, United States Magistrate Judge, relied wholly on the California statutes and case law in rendering a decision on mediation confidentiality. It caught my interest because, although a federal case, it applied California law on mediation confidentiality.
Initiating The Dance
Often, during a mediation, I have asked a party if she wants to make the first offer. More times than not, especially if it is the defendant, the party tells me that she wants the other party to go first on the rationale that it is a sign of weakness or some similar explanation for her to make the opening offer.
Think With Your Head And Your Heart!
Have you ever made a decision because it “felt” right? That is, you can’t explain the rationale or logic behind how and why you decided what you did, but deep in your “gut”, you “know” you made the “right” decision simply because it “felt” right.
What Has The World Come To?
I am a member of the Louisiana State Bar. Like most states, the Louisiana Bar requires that its active non-exempt members take so many hours of continuing education each year, including courses on “Professionalism”. As a result, I get e mails advertising courses from time to time. Recently, I received the following e mail advertisement. It troubled me. It really made me stop, think and wonder what the legal world is coming to. Sadly, I am also a member of the California Bar which is the object of this article:
Maintain Your Cool
In the latest edition of the Los Angeles County Bar Association’s Negotiation Tips ( Negotiation Tips ), Linda Bulmash addresses an often reoccurring issue in mediations: how to keep a negotiation from collapsing when an impasse occurs.
On November 23, 2009, the Fourth Appellate District Court of the California Court of Appeal upheld the collateral source rule. In Howell v. Hamilton Meats & Provisions, Inc., Case No. D053620, 2009 Cal. App. Lexis 1874 (Howell) the appellate court determined that plaintiff was entitled to recover the actual amount charged by her medical providers even though those medical providers took far less from her insurer in full satisfaction of their bills. Needless to say, it will make for an interesting mediation!
Influence And Persuasion
Recently, I read Robert B. Cialdini’s book Influence: Science And Persuasion 4th ed., Allyn & Bacon 2001). It was an excellent book, and I highly recommend it.
Let Me “Sleep On It”
The research indicates that “sleeping on it” is not such a bad idea: to the contrary, it may be rather productive. A person’s unconscious is the better decision maker and thus a person will make a good decision, unconsciously. That decision most likely will be one that is much more rational, much less biased and much less dependent on preconceived notions than one made consciously at a mediation.
Intuition Or Counter-Intuition?
On Saturday, November 7, 2009, Dr. Daniel Druckman, Professor of Public and International Affairs at George Mason University in Fairfax, Virginia delivered the 5th Annual L. Randolph Lowry Lecture at Southern California Mediation Association’s 21st Annual Conference.<
The Power Of An Apology
In my various mediation training classes, we have discussed the pros and cons of an apology; whether it should be given and if so, under what circumstances.
As I have mentioned several times over the last few weeks, the Southern California Mediation Association (“SCMA”) will be hosting its Annual Conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. (See, 2009 SCMA Conference) It will be preceded by a dinner on Friday night, November 6, 2009 at which Lee Jay Berman will host a discussion entitled “M3: How Do Mediators Spread The Word And Better Educate Users.”
Does The Mediator Really Matter?
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.
M3: The Future Of Mediation
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).
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.
E-Mediation: Will I Be Replaced By Software?
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.
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.
Mediating With Uncle Sam
My husband is a customs lawyer. He specializes in import-export law and international trade. Thus, for the most part, he represents importers who are at odds with U.S. Customs and Border Protection (“CBP”); that is, the U.S. Government. When the issue winds up in federal court, he is dealing with an Assistant U.S. Attorney or an attorney in the Department of Justice, Civil Division, Commercial Litigation Branch. Being a mediator, I always recommend that he use mediation to resolve his cases. His response is that he is dealing with the Government, and it does not mediate.
Truth Is Stranger Than Fiction
Late last year, I mediated a “family” dispute involving facts that were stranger than fiction. It seems that Jane Jones (fictional name) had a relationship with Joseph Smith (again, a fictional name). They had two children together, although they never married. They, then, went their separate ways.
The $475,000 Guess
On Sunday night (August 23, 2009), ABC TV aired the last prime time episode of “Who Wants To Be A Millionaire.” One of the contestants learned (and taught the rest of us) a valuable lesson in risk taking vs. risk aversion.
The Big Picture
In late May 2009, I flew back to my childhood home to help my siblings move our mother into an assisted living facility. As she had been living in the family home for close to sixty years, it was the move from *!!##*##!!*, to say the least.
Mediation Confidentiality Redux
In August 2007, I wrote a blog on a then newly issued Ninth Circuit opinion, Babasa v. Lenscrafters, Inc., 498 F.3d 972 (9th Cir. 2007) (“Babasa”) in which the Court held that in order to determine whether removal jurisdiction existed under 28 U.S. C. §1446(b), mediation confidentiality would not attach to a letter written in preparation for mediation which explained the nature and extent of damages, and thus, the amount in controversy for purposes of determining federal jurisdiction under 28 U.S.C.§ 1332.
We have all dealt with difficult people. This “difficulty” is precisely why we find ourselves in negotiations with these folks in the first place. If they were agreeable, then there would no need for negotiation; the issue would get resolved quickly and smoothly.
Last week, I mediated a very contentious dispute that was fueled by a misassumption. Only late in the mediation did the parties realize the existence of the misassumption. In the words of our President, it became a “teachable moment.” The teaching: never assume.
Everyone Has A Boss
A recurring issue in mediation is settlement authority: a party (or an attorney) attending the mediation has to make a telephone call to someone located someplace else – often in another part of the country – to wrest more money from her company (who is the defendant) to meet the settlement demand and resolve the case. Or, if the issue is attorney’s fees, it is the associate telephoning her boss to gain permission to reduce the fees by a sufficient amount to make the amount being offered by the other side – workable and thus resolve the matter.
A Townhall Meeting
Last Saturday, the Southern California Mediation Association (“SCMA”), (of which I am the incoming president. I admit my bias!) held its annual townhall meeting. More than 100 people attended. The topic of discussion was “Mediating Without a License: Is It Time For A Change.” During the three hour session, three different panels discussed the issues of qualifications, licensing, credentialing and regulation of mediation and mediators (moderated by Ivan K. Stevenson, Esq.). No real resolutions were reached but a lot of issues were put on the table for discussion, to ponder and to take away for further reflection and discussion.
On several occasions, I have discussed the importance of preparing for a mediation. I have noted that if a party comes to mediation with the idea of “winging it” or simply “going with the flow,” chances are, a resolution of the dispute will not be reached. Rather, the parties will leave frustrated and wondering why the matter did not settle.
The Long Life Of An Implied Warranty
What is the duration of the implied warranty of merchantability under California’s Song-Beverly Consumer Warranty Act (Civil Code §1790 et seq.) (“The Song-Beverly Act”)?
Learning About Trust
One of the first goals of a mediator is to gain the trust of the parties; to convince them to put aside their fears and anxieties about even attending the mediation and about what might occur there.
The Dilemma Of Confidential Information
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?
The Bentley Is A Lemon
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”).
An important aspect of any dispute, be it one filed in court or simply a neighborly spat, is the expectations of the parties. Are they unrealistic or do the parties know exactly what is what and what they can expect as part of a resolution?
The Greatest Generation
I know that mediation skills are useful in everyday life, and I have often used my own life experiences to build commonality, and trust with parties, but, to see it played out with such southern charm, sincerity and empathy was something entirely else. In all of my mediation training, I have not seen these skills so well displayed and exemplified. They are skills that only a member of The Greatest Generation could have. Us baby boomers aren’t there yet.
The other week, my blog discussed the Thomas-Kilmann MODE Instrument that is used to assess how individuals confront and handle conflict. One of the behavior patterns discussed is the avoider who will sidestep the issue and simply not deal with it, whatsoever.
The Ah-Hah Moment
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!
Who Are You?
“Who are you?” What an interesting question! Are you competitive? Accommodating? Avoiding? Collaborating? Or Compromising? How you answer these questions reveal your approach to conflict. Each of these personalities approach and manage conflict very differently.
Mediate.com Featured Blogger Interview: Phyllis Pollack at PGP Mediation
Mediate.com is doing a series of articles on our Featured Bloggers. This is the featured blogger interview of Phyllis Pollack.
I Would Never Do That!
I read an article in the Science Section of the New York Times on Tuesday, May 5, 2009 that made a lot of sense to me. Written by Benedict Carey, “Stumbling Blocks on the Path of Righteousness” discusses the “holier-than-thou” effect. As social psychologists define it, this effect occurs when “. . .people tend to be overly optimistic about their own abilities and fortunes – to overestimate their standing in class, their discipline, their sincerity.” (Id.) Thus, for example, in a mediation, a party might strongly condemn the other side, exclaiming that they, themselves, would never do that (!), or they would never take advantage of the other person the way defendant did of them, or what the defendant did to them was not “right”, or “moral” – or was “shady”, “despicable” and so forth.
Just A Mediator
It always intrigues me how I learn about something and then an event happens that brings that new learning sharply into focus.
Rights V. Resolution
Last week, I was in New York attending the 11th Annual Conference of the American Bar Association’s Section of Dispute Resolution. One of the highlights was the award of the ABA’s D’Alemberte-Raven Award to Magistrate Judge Wayne Brazil of the Northern District of California. This is a most prestigious award.
The Eyes Have It
When you smile, do your eyes smile, too? If not, you’re faking it! According to a recent research study, “. . . the eyes might hold the clues for bogus versus genuine smiles.”
It's All In The Face
We have all heard others who claim they can tell if someone is lying by “reading” that person’s face. By simply looking at her opponent’s face, the negotiator can tell if the opponent is trustworthy
Last week, there was a pretty important mediation. It involved a lot of parties - 20 to be exact - on a very important issue- the global economy. It took place in London and was co-mediated. The primary mediator - Prime Minister Gordon Brown of Britain- seemed to be doing a good job - moving all of the parties forward toward a resolution.
The Nash Equilibrium In Real Life
Last week, my blog discussed the Nash equilibrium which states that “. . .in every situation of competition or conflict in which the parties are unwilling or unable to communicate” “. . . both sides have selected a strategy. . . [which] neither side can then independently change. . . without ending up in a less desirable position.” Fisher, Len, Rock, Paper, Scissors: Game Theory in Everyday Life (Basic Books 2008) at p. 18. (Emphasis original.)
Competition ? Cooperation
When I started mediating cases, I never thought that I would have to be aware of or learn advanced mathematics. But a book that I recently finished has shown me otherwise. Entitled, Rock, Paper, Scissors: Game Theory in Everyday Life, its author, Len Fisher, PhD. (Basic Books (2008)) explains how game theory applies to everyday life.
Walking A Fine Line
Ah! Attorney’s Fees. Where would the litigated case be without them. To a plaintiff, the ideal situation is one in which defendant pays the fees of plaintiff’s counsel, either as a result of a fee-shifting statute or a contingency fee agreement. But, such an arrangement poses a quandary for the mediator who is trying to settle the case and is having difficulty doing so because plaintiff’s attorneys fees are getting in the way.
The Stereotype Tax
As mediators, we are trained to look for and be aware of human assumptions and hidden biases, both in ourselves and in our clients. We are taught to “people watch” – to read body language because people do not always say what they mean or mean what they say. Many times, the body language belies the spoken word. A party may say one thing while her body language is saying something completely different
We Are All Storytellers
Everybody has a story. And everybody needs to tell their story. They need to process it internally and make sense of it before they can write the ending.
A Canine In My ToolBox
Over the last few years, I have attended a lot of mediation seminars. Often, the trainers talk about the various tools available in the mediator’s toolbox, and, how we, as mediators, should delve into our toolboxes and pull out a new and different tool that helps the parties reach resolution.
Every mediator can tell the tale in which the parties are discussing possible mediators for a mediation and because one party has used a particular mediator before, the other party refuses to agree to use that mediator.
So Much For The Law - Part I
The more court opinions I read, the more I am glad that I have given up the practice of law and am now a full-time neutral. While a prudent attorney will always tell her client that she cannot predict the outcome of a matter with any certainty, there are a couple of recent California Supreme Court decisions that completely defy predictability. This blog will cover the first one and next week’s will cover the second one.
The Hybrid Meets The Law
It seems that no matter where we turn our focus, we hear about our environment and how it needs to be “greener.” To this end, the automakers (especially to avoid further insolvency) are emphasizing hybrid and other types of environmentally friendly automobiles; “fuel economy” seems to be the “magic words “ for this mode of transportation.
Equality And Mediation
A thought provoking article appeared in the December 29, 2008 edition of the Los Angeles Daily Journal. In “Law Doesn’t Guarantee Equal Outcomes, Only Equal Opportunity,( december-29 ) Donald J. Kochan, an associate professor of law at Chapman University School of Law, discusses the Equality Principle.
As this is my last blog for the year, I want to end 2008 on a light and happy note . . . which brings to mind a recent study on happiness.
Even Dogs Want Fairness
This week’s blog returns to a familiar theme: Fairness. Why? I am a dog lover and so can’t resist reading any article involving dogs.
Settlement And Taxes: Must I Pay For Dancing
To prepare for mediation, many parties review the strengths and weaknesses of their cases, the costs to prosecute or defend a dispute in relation to amounts they are willing to pay or accept in settlement, and otherwise their Best Alternatives To A Negotiated Agreement or BATNA.
The Endowment Effect and Thanksgiving
I am reading an interesting book, The Science of Settlement by Barry Goldman, MA, JD (ALIABA 2008). In it he discusses how to prepare for and effectively bargain during a negotiation. Towards this end, Mr. Goldman discusses a lot of different psychological and/or economic principles.
Mediation Gone Wild
Several months ago, I read an interesting article by Greg Katz in the Los Angeles Daily Journal entitled “Neutral to Take “Mediation Gone Wild” On Tour” (August 29, 2008). It seems that Michael D. Young, a neutral affiliated with Judicate West in Los Angeles, wrote an article in Alternatives (Vol. 25, No. 6, June 2007) about a civil dispute that went totally out of control. The article has brought Mr. Young his “15 minutes of fame.”
Where's The Lemon
It never ceases to amaze me how “coincidences” seem to happen. Last week, I was scheduled to mediate a “lemon law” case in which, while the lawsuit was pending, plaintiff was involved in an automobile accident which caused a total loss to the vehicle.
I Am Sorry
”I am sorry.” These are three simple words but are often the most difficult to say, especially in the midst of a conflict that has led to a lawsuit. During a mediation, I sometimes think it is easier to move heaven and earth than to get one party to say these simple words to the other.
Never Can Say Good-Bye
Denial. Anger. Bargaining, Depression. Acceptance. These are the five stages of grief as first set forth by Elizabeth Kübler-Ross in her 1973 book, On Death and Dying. Kübler-Ross applied these five stages not only to those dealing with terminal illness but to those dealing with any form of catastrophic personal loss, be it loss of a job, or of income or of any other of life’s tragedies.
My first training to be a mediator was in divorce mediation. At the time, I, naively, asked...
Even for a mediator, mediations can be very frustrating. I had a mediation the other week that falls into this category. The defendant and his counsel were willing to settle, and, in fact, wanted to settle. But the matter did not settle. . . because of plaintiff’s counsel. She had neither researched the law nor investigated the facts and so could not realistically evaluate the case for the benefit of her client.
The matter involved an alleged error by an attorney (who is now...
A Loss For Mediation Confidentiality
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.)
Make The Deal: You Are Better Off
It is always better to settle. This is the conclusion drawn in a soon-to-be released study of civil lawsuits: “. . .most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.” (“Study Finds Settling Is Better than Going to Trial” by Jonathan D. Glater, New York Times, August 7, 2008.)
According to the study, defendants made the wrong decision to proceed to trial in 24% of the cases while...
The Endowment Effect
No doubt, you have been part of a negotiation or a mediation in which the following oxymoron is apparent: one party wants to be rid of something she claims has no value, but, yet, at the same time is reluctant to part with it. Have you ever wondered what is causing this seemingly “irrational” behavior?
About twenty-eight years ago, Richard Thaler first observed “the endowment effect” which is “once someone owns something, he places a higher value on it than he did when he...
The Never Ending Story: Mediation Confidentiality
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 ...
A Contract Is A Contract
Mediation is very popular. More and more, it is being used as the way to resolve disputes. In California, many statutes and contracts require that parties attempt to mediate prior to filing suit; otherwise, the prevailing party will be barred from recovering attorneys’ fees.
These points were, once again, confirmed in a recent unpublished case, Lange v. Schilling, Court of Appeal of the State of California, Third Appellate District, Case No. C055471 (5/28/08). At issue was the...
The One Shot Player
My mediation practice is “court-oriented;” I handle disputes that are filed in court. A recent research paper by Leonard L. Riskin and Nancy A. Welsh involving court-oriented mediations in ordinary civil suits caught my attention. It is entitled “Is That All There Is?: “The Problem”: In Court-Oriented Mediation” and is published by Penn State University – Dickinson School of Law as Research Paper No. 01-2008. ( George Mason Law Review, Vol 15, 2008)
The thesis is that “the...
A Lost Opportunity
There is diverse opinion within the mediation community on whether a mediation should start with a joint session or separate sessions. How I start a mediation session depends on the type of dispute and the parties involved.
In those instances in which I do start with a joint session, I often witness the parties and/or their attorneys not using this opportunity effectively; they limit their opening statement to a factual recitation, keeping it “short and sweet.”
In his June...
In November 2007, I wrote a blog entitled “Fairness To Me” in which I discussed a study involving Capuchin monkeys seeking fairness to themselves but not for their companions, or the “what’s in it for me”snydrome.
Now, another study shows that we define “fairness” depending upon if we are referring to ourselves or to the other party. In the July 1, 2008 science section of the New York Times, John Tierney discusses the notion that “Deep Down, We Can’t Even Fool Ourselves.” In his...
I am in the business of resolving disputes – a “peacemaker” – as many of my colleagues would say. I was reading an article online the other day, and suddenly it dawned on me that the lack of empathy may be the major reason for many disputes.
The article, entitled “Empathy deficit disorder – do you suffer from it”? by Amanda Robb, appears on Oprah.com. Initially, Ms. Robb explains how she was quite unempathetic when her roommate and “boon companion for three years” came in and...
More times than not, in order for the parties to reach a resolution at mediation, they must attend the mediation. While this may seem axiomatic, in reality, not all of the necessary parties always show up at a mediation. In most instances where a party does not attend in person, it is difficult, if not impossible, to reach a resolution. Unsurprisingly, the matter does not settle.
This simple fact was the subject of a motion for sanctions before the Third Appellate District in...
An Unenforceable Settlement
My mediation practice consists of cases filed in court (or litigated cases). Often times, the parties settle using an installment payment plan and a stipulated judgment. For example, defendant agrees to pay x amount a month, and if she defaults, plaintiff may file a stipulated judgment for y amount which is often a higher amount than the agreed upon settlement amount less credit for payments made.
In Greentree Financial Group, Inc. v. Execute Sports, Inc. (Case No....
Doomed To Failure
On at least three other occasions, I have discussed how important it is to prepare for a mediation. I first wrote about it in November 2006 (“Preparing For Mediation”) and again wrote about it on April 30, 2007 (“Preparation: A Necessary Must”) and once more on February 15, 2008 (“Preparation And Communication”). The theme of each of these blogs is the same: in order for a mediation to be successful, each party must come prepared.
I also posted a blog on the notion that a bad...
Influencing The Outcome
In the May 2008 issue of the Harvard Negotiation Newsletter (Vol. 11, No. 5), the authors discuss how to influence your adversary so that a resolution is reached. In the lead article, “Will Your Proposals Hit The Mark,” five strategies are offered to support the thesis that “our judgment and decisions are strongly affected by the amount of information we receive and the way in which it’s framed.” (Id.)
The first strategy is not to overwhelm the other side with too many...
In its Science section on Tuesday, May 20, 2008, the New York Times printed an article explaining that older may, indeed, be wiser. In her article entitled “Older Brain Really May Be a Wiser Brain,” Sara Reistad-Long discusses research that shows that brainpower increases, not declines, with age. That is, “. . . the aging brain is simply taking in more data and trying to sift through a clutter of information, often to its long-term benefit.” (Id.)
In one study (detailed in...
Needs And Interests v Emotions
In a negotiation, which is more important: understanding the other person’s perspective (“perspective – taking” or needs and interests) or being emphatic? Interestingly, the former is more crucial to a successful negotiation than the latter.
In a short article entitled “Inside a deal” in the May 1, 2008 edition of The Economist (in its Science and Technology section), the author discusses a study published in Psychological Science by Adam Galinsky and his colleagues at...
Settlement Is Always Better
About a year ago, I was requested to mediate a case that was on appeal. The parties were a real estate agent (“agent”) and the real estate company (“company”) for whom the agent worked. The company had made cash advances to the agent for which the agent had signed promissory notes. When the agent terminated her employment with the company, she still owed the money.
Pursuant to the terms of the agreement, the company sent the claim for collection. When that proved unsuccessful,...
Litigation Is Not The Answer
More and more parties are using mediation (which is nothing more than a negotiated resolution ) to resolve their lawsuits. Perhaps, the following explains why.
In late April 2008, the U.S. Chamber Institute for Legal Reform published its Lawsuit Climate – 2008 in which it ranks the states’ liability systems. The survey conducted by Harris Interactive, Inc. polled 957 in-house general counsel, senior litigators and other senior attorneys “who are knowledgeable about...
Learing From Our Mistakes
Why do we keep making the same mistake over and over again? Every time it happens, we tell ourselves that we should learn from our mistake and do it “correctly” the next time.
While this logic seems rational, it is not borne out by research. A Live Science article posted on April 23, 2008 by Jeanna Bryner entitled “Why You Make The Same Mistake Twice,” explains that our failure to learn from our mistakes results from a phenomenon called “tip of the tongue” or TOT.
The art of negotiation can present ethical dilemmas. As explained in the April 2008 (Vol. 11, No. 4) issue of Negotiation published by the Program on Negotiation at Harvard Law School, at times, negotiators will make decisions that clash with their own ethics. Such clashes can arise in a myriad of situations.
For example, a negotiator may attempt to create value at the expense of others. The scenario given describes two pharmaceutical companies settling a patent-infringement...
Every so often, I am told by a party and/or an attorney participating in a mediation that she/he must leave by a certain time; that is, she/he has only but so much time to negotiate. Sometimes, the party or attorney will tell me this at the start of the mediation; other times, she/he will tell me this in the later stages of the mediation.
In response, I silently wonder if she/he is telling me the truth or using a negotiation tool that, hopefully, leads to resolution. As...
Most of the cases that I mediate are in litigation. They are lawsuits in which each party has hired an attorney to represent him/her zealously, if not, aggressively. Many of these attorneys approach litigation as they would war: take no prisoners, scorching the earth as they “fight” their way to victory!
However, a recent Harvard study reveals that these attorneys and the parties they represent may gain a lot more by playing nice. That is, “nice guys do finish first.”...
At a certain point in every mediation, the haggling over money starts. Inevitably, one party or the other will tell me that they do not want to make the first offer or demand because they do not want to appear “weak” or to bid against themselves.
In response, I tell them that making the first offer or demand provides them with a golden opportunity: it allows them to set the playing field, to affect the expectations of the other party. Sometimes, the party will accept this...
A 'Good' Mediator
So. . . you have decided to mediate your dispute. Now, you must select a “good” mediator. How do you find one and more importantly, how do you define a “good” mediator?
Most people find a “good” mediator either through personal experience (i.e., previous mediations with a particular mediator) or through word of mouth or referral.
The more important question is what do you (and everyone else) mean by “good”?
Recently, the American Bar Association’s...
Emotions, emotions, emotions. . . . It seems that we cannot get away from them when we negotiate. In the latest edition of the Harvard Negotiation Newsletter (March 2008, Vol. 11, Number 3), the lead article asks “Will your emotions get the upper hand?” The author notes that “new research suggests that these different emotions [i.e. excitement, anger, and sadness] will predispose you to act and react in very different ways during the talks that follow, regardless of the relevance of these...
It Is Not Just About The Law
The other day (March 3, 2008, p. 6) the Los Angeles Daily Journal carried an article by Robert A. Steinberg (a mediator with ADR Services) entitled “Mediation Requires Deal Makers, Not Decision Makers.” His theme is that “mediation is a facilitated negotiation.” (Emphasis original.) As Mr. Steinberg explains, “negotiations develop based on the skilled application of leverage. The quality of one’s legal case is one leverage point but hardly the only one and sometimes not even the dominate ...
Is BATNA Really Your WATNA?
Many years ago, Robert Fisher and William Ury coined the acronym ‘BATNA’ meaning “Best Alternative To A Negotiated Agreement.” It represents the available alternatives when a party is unable to negotiate an agreement. In the context of litigation, it often means going to trial.
Based on a study just published by Vanderbilt University Law School entitled “Blinking On the Bench: How Judges Decide Cases” by Chris Guthrie, Vanderbilt Law School, Jeffrey Rachlinski,...
Preparation And Communication
In November 2006, I wrote a blog entitled “Preparing For Mediation.” Its essence was that in order for a mediation to be successful (i.e. resolve the dispute), each party must prepare for the mediation. Otherwise, the mediation will end in frustration and disappointment.
I visit this topic again because it bears emphasis. If each party to the dispute is not apprised of at least the major strengths and weaknesses of her case prior to attending the mediation (i.e....
An Idle Threat
At some point in just about every dispute that I have mediated, one of the parties has said to me, “This is our final offer – tell the other side to take it or leave it!”
How do I respond? It depends upon the situation at the time. In an interesting article entitled “Threat Response at the Bargaining Table” in the January 2008 issue of the Harvard Negotiation Newsletter, the authors suggest the following response.
First, immediately call for a break – take a...
Recently, I was talking with a colleague about mediations. He made a point that struck me: a bad mediation is worse than having no mediation at all.
I asked him to explain. He said that mediation provides the opportunity to settle a case. If the mediation is a bad one, the parties go backwards B they become more entrenched in their positions and become more determined not to settle but to go to trial. The very valuable opportunity to settle is now lost. There becomes nothing left...
Getting Over 'The Bump In The Road'
Every once in awhile – perhaps more often than we care to acknowledge – negotiations hit a “bump in the road” and seem to get stuck, going nowhere fast.
In “Solving Stalemates” published in the January 23, 2008 Los Angeles Daily Journal, p.6, (Vol. 121, No. 14)©, Marin County Superior Court Judge Lynn Duryee, and mediator Matthew N. White, Esq. offer ten (10) simple, common-sense (yet often overlooked) suggestions on how to get over the “bump in the road.” They include...
Negotiating The Negotiation
Mediations are about negotiation. In most negotiations, the parties focus on the substance of the dispute; that is, on the merits of the controversy. Very rarely, do the parties focus on the procedural aspects of the negotiation such as, which and/or what issues do they want to negotiate? Which issues do they want to omit from the negotiation ? Which issues do they want to address first, last or somewhere in the middle or in what order?
Most mediators DO think about such procedural...
Better Health Through Mediation
Over the holidays, the Los Angeles Times printed an article by Melissa Healy in its Health Section entitled “You’re not sorry? That’s OK” (December 31 2007). According to Ms. Healy, there is a growing body of research that indicates that the act of forgiving may be medicine for the body. That is,
““Forgiveness interventions” – often just a couple of short sessions in which the wounded are guided toward positive feelings for an offender – can improve...
When asked the question, “are you a negotiator” most people answer, “no.” They do not realize that they are, indeed, negotiators and that they negotiate every day of their lives. They negotiate with their friends, family and strangers every day, about such mundane things as who will walk the dog, who will make the coffee, where and when to go to lunch, or dinner, what to bring to the party, and/or who will drive et cetera.
Rather, most of us think of “negotiation” in terms of...
Mediating a matter that is in litigation is sometimes difficult. By virtue of the fact that the matter is being litigated, each attorney has taken on the mantle of being an advocate for the client, and thus, by implication, of being adverse to the opposing attorney. Having spent many months in an adversarial role, the attorney is required to walk into a mediation, suddenly cease being adversarial and antagonistic, and negotiate a resolution that is acceptable to all. Needless to say,...
Recently, Newsweek published an article entitled “Less (Information) Is More” by Wray Herbert. The thesis is that “. . . most people think too much before they make important decisions.”
According to psychologist Gerd Gigerenzer of the Max Planck Institute in Germany, there is much evidence to suggest that we should go with our “hunches” rather than crunching endless data to arrive at the “right” decision. That is, we should trust our gut feelings and intuition more and raw...
We Deny In Order To Forgive
Have you ever considered that “denial” and “forgiveness” are the reverse sides of the same coin? In order to forgive, some degree of denial must necessarily be involved. More specifically, the only way we can convince ourselves to forgive someone for some purported transgression is to “overlook” the purported transgression, or, in truth, engage in denial.
The intriguing linkage of these two concepts was the subject of an article in the New York Times “Science” Section on...
“Fairness to Me”
Many months ago, I wrote a blog on “Fairness”, noting that there are several different ways to define this term. My blog did not address how basic this concept really is.
In her article “Monkeys Fuss Over Inequality”, in LiveScience.com (November 13, 2007), Jeanna Bryner discusses a study revealing that Capuchin monkeys, who are very much like us humans, will throw “. . . fits when their companions get better treats.” (Id.)
In a study conducted by psychologist...
“. . . Everybody wants a thrill
Payin’ anything to roll the dice
Just one more time
Some will win
Some will lose
Some were born to sing the blues
Oh, the movie never ends
It goes on and on and on and on. . .”
(“Don’t Stop Believin’”, Journey© 1978)
In mediation, the subject of what will happen if the dispute does not settle almost always comes up. In negotiation lingo, this issue is known as BATNA — Best Alternative To A Negotiated Agreement — a term coined by Roger ...
The other day, I came upon an article in the June 2005 Harvard Negotiation Newsletter (Vol. 8, No. 6) entitled “Negotiating Under the Influence” by Jennifer S. Lerner. The thesis of the article is that our emotional state does, indeed, directly effect our decisions, often for the worse. I found this interesting because while this thesis makes sense to me, it contradicts another study that was the subject of an earlier blog entitled “Anger Leads To Better Decisions.” In that study, the...
Collaborative Law As Limited Scope Representation
In one of my earlier blogs, I discussed an Ethics Opinion issued by the Ethics Committee of the Colorado State Bar determining that collaborative law is per se unethical because it creates a conflict of interest that cannot be waived.
Recently, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (“ABA Committee”) issued its Formal Opinion 07-447 (August 9, 2007) determining that a lawyer may represent a client in the collaborative...
In the October 2007 issue of the Negotiation newsletter, the unnamed author discusses “The Crucial First Five Minutes.” The theme of the article is that what we say, think and do upon meeting someone sets the course and tone of the relationship: to avoid starting off “on the wrong foot,” two common mistakes should be avoided.
The first common mistake involves making snap judgments. Whenever we meet someone, we absorb a lot of visual information and cues which we...
Last weekend, I made a presentation on Alternative Dispute Resolution at the Western Cargo Conference (“WESCCON”) in Denver, Colorado. My audience consisted of customs brokers, freight forwarders, warehouse owners and others involved in the transportation and logistics industries.
My presentation focused on defining Alternative Dispute Resolution, explaining the various forms or models it may take (e.g. negotiation, mediation, arbitration, neutral fact finding, mini-trial, early ...
Facing Danger Calmly
Aristotle once noted:
“. . . we feel confidence if we believe we have often succeeded and never suffered reverses, or have often met danger and escaped it safely. For there are two reasons why human beings face danger calmly: they may have no experience of it, or they may have means to deal with it. . . .” (Rhetoric, Book II, Chapter 5, p. 1383, lines 25-30).
When parties face a dispute, either they are fearful or confident or a mixture of both. If confident, it is...
During the recent High Holidays, I listened to a sermon by rabbinic intern Danny Berkeman. He posed the following scenario: each morning, each of us is given 86,400.00 dollars to do or not do with as we wish. It is totally and wholly in our discretion if and how we use this gift.
Each evening, any amount still remaining is taken away from us so that at the end of the evening, we are left with zero dollars.
The next morning, we are once again given 86,400.00 dollars to...
Several years ago when I first became a mediator, I attended a mediation training session. The speaker threw out the question: who is the mediator’s client? While each of us came up with various answers, the speaker’s answer was quite startling: the settlement. The mediator’s client is the settlement.
Initially, I disagreed with the speaker, but as I mediate more and more cases over the years, I have begun to understand and appreciate this answer: my goal is to help the parties...
The Art Of Listening
This past week, I had two mediations. One settled, one did not. The reason behind each result was the same: the art of listening.
The first mediation lasted for eight (8) hours. After about four hours, the mediation reached an impasse. For some reason, the defendant refused to offer more money above a certain amount, and it was not clear why. Because the parties to this dispute knew each other and had a relationship, it was suggested that they meet in a room together (with...
Mediation Confidentiality: Does It Exist In Federal Court?
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...
Mediation In Every Day Life
Mediation In Every Day Life
Typically, if you ask someone if she is a “negotiator,” she will quickly say “no,” not realizing that a single day in her life provides innumerable opportunities to negotiate. The same is true with mediation – each of us participates in mediation either as the mediator or as a disputing party more often than we realize. Let me provide a true life’s tale.
For several weeks, my husband and I had a minor plumbing problem at home – the...
In the Sunday, August 12, 2007 edition of the Los Angeles Times, Kathy M. Kristoff discusses mistakes that people often make in negotiating deals. Entitled “Negotiating a Deal? Don’t Make this Error,” Ms. Kristoff points to a study authored by Rick Larrick (Associate Professor of Management at Duke University’s Fuqua School of Business) and George Wu (Professor at the University of Chicago’s Graduate School of Business) that concluded “[p]eople almost always underestimate how far they...
In an article entitled “Young Lawyers: Drafting a Mediation Settlement that Avoids Future Litigation” appearing in the American Bar Association’s Section of Litigation, Litigation Update, Jean Baker, Esq. notes that parties go to mediation to avoid litigation: thus the settlement agreement used to memorialize a successful mediation should be drafted with care so that the parties do not end up back in litigation.
In my own mediation practice, I have often witnessed that...
Civility and Graciousness
Recently, the Los Angeles County Bar Association started publishing an on-line monthly newsletter entitled “One Minute Negotiation Tip.” In its very first issue, (Vol. 1, No. 1), this newsletter sets out five basic principles of negotiation borrowed from Linda Bulmash’s column “Negotiate Like The Winners.” These tips emphasize civility and graciousness in dealing with others. They include:
“1. Negotiation is not a contest. In other words getting as much as you can does not ...
Age Does Matter: Something To Think About
Often, during the process of resolving a dispute, the parties (if not also the mediator) fail to take into account the age of the parties. In an article entitled: “It seems all those birthdays may be making you happy” by Judy Foreman in the Health Section of the Los Angeles Times, July 16, 2007, the author notes that “many people do indeed mellow with age.” (Id.)
The article focuses on a study conducted in Australia which was published last summer. The researchers found...
Pride: Something To Think About
According to psychologist Albert Mehrabian, more than fifty (50) percent of the total meaning of a spoken message comes through facial expressions and other non-verbal communication. One such non-verbal cue is pride.
In a June 25, 2007 article in the Los Angeles Times entitled “Proud of yourself? Everyone can tell,” Janet Cromley, notes that according to recent research, “. . . pride appears to be a universal, human emotion, and it comes in two flavors: positive and arrogant.”...
Mediation Briefs: Do They Tell A Story?
In an article in the ABA Journal E-Report, James W. McElhaney discusses “Legal Writing that Works.” While his discussion is aimed primarily at briefs submitted to the court, much of Mr. McElhaney’s comments apply to briefs submitted to a mediator.
His first point is to “go lean.” While the first thing you should discuss is the theory of your case, you should also throw out the weak arguments and inconsistent theories. Be spare so that your “story” is not diluted with “stuff that doesn’t matter.” (Id.)
The “story” leads to the second point (and one I have discussed in a previous blog entitled “This is Your Dispute”). “Humans always have used the story to understand facts and resolve issues. Everything in the law is a story. Every case, . . . every brief is a story.” (Id.)
So. . . tell a story. And do so. . . so that it stands alone. . . without requiring the mediator to look at something else to understand what you are saying. Make your story persuasive. . . but without being argumentative. This is done by providing facts, not opinions. While the mediator is to remain neutral and unbiased, a story persuasively told in a brief will assist her in helping the other parties understand your viewpoint.
Further, according to Mr. McElhaney, understate your side of the dispute. “You don’t have to say everything” but everything you do say, should count. (Id.)
In concluding, Mr. McElhaney urges (1) “have a theme – a strong central argument that underlies everything you say;” (2) “start strong and end strong;” and (3) “illustrate what you have to say. . . one simple example sticks better than a whole book of abstractions.” (Id.)
In my own mediation practice, I urge the parties to provide a brief that “keeps it simple.” In other words, tell me a “story” with a central theme and the facts. As I am a neutral facilitator, not a decision maker, I simply need to know the “story” without all of the details. By keeping it simple, I can assist the parties in focusing on the main issues and not get mired in the details. By staying focused on the “big picture,” the parties have a greater probability of settling.
So. . . the mediation brief does, indeed, set the stage. Let it tell the story.
….Just something to think about.
To Resolve A Dispute, Ask Your Adversary For Advice
In the June 2007 issue of Negotiation, Katie A. Liljenquist and Adam D. Galinsky discuss how to “Turn Your Adversary Into Your Advocate.” Their advice is simple: Ask for advice. A request for advice will always be much more effective than an adversial approach.
The authors note that there are multiple benefits to seeking advice. First, “soliciting advice helps you find solutions to genuine problems.” (Id. at 2). It also can “disarm potentially defensive opponents.” As the authors aptly point ...
The Abuse Of Mediation Confidentiality
Once again, a California appellate court has upheld the sanctity, if not impermeability, of mediation confidentiality. But, not with any gusto or enthusiasm; rather, it clearly did so out of duty. In Wimsatt v. Superior Court (Corey Kausch – Real Party in Interest), Case No. B 196903, Division Three of the Second Appellate District of the California Court of Appeal held that all mediation briefs and all e-mails sent the day before mediation that quoted from a mediation brief could not be...