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Civil Mediation Articles
Archived Content:
Confidentiality |
Courts - Legal
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The Second Appellate District Revisits Mediation Confidentiality (8/30/10)
Phyllis Pollack 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.
Courtroom "Intake" Speeches For Civil Harassment And Small Claims (8/27/10)
Jack Goetz Courtroom speeches encouraging mediation evolve readily from the application of well recognized principles that support the advantages of mediation. Since courtroom time is often limited, this article presents a practical approach to using those principles in developing a five minute presentation that has been utilized in civil harassment and small claims settings.
How Did They Price The File? (8/23/10)
Jeffrey Krivis Knowing how the other side has priced the file will give you a leg up in the negotiation and will help you understand the background behind the negotiation moves that occur.
Planning Is Critical (8/23/10)
Phyllis Pollack 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:
L.A. Mediator And The LASC Pro Bono Panel: The Canary In The Coal Mine (8/23/10)
Victoria Pynchon I once lived in the neatly trimmed suburban neighborhood of litigation. Although bullies sometimes populated the streets, because residents share important values (critical thinking, evidence-based fact-finding, and, the application of the rule of law to competing claims) its streets are clean, its trains run on time and its police force keeps most of the "bad element" out of town. Just as importantly, Litigation Land has many town mayors, those be-robed authority figures who can and sometimes do sanction those attorneys who break the folkways of civility. So you can be an asshole in your dealings with fellow members of the Bar, but the practice is strongly discouraged and subject to sanctions imposed by "Mom and Dad."
L.A. Mediators And The LASC Pro Bono Panel (8/16/10)
Victoria Pynchon When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings. Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).
Rights V Resolution (8/16/10)
Phyllis Pollack 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.
L.A. Mediator And The LASC Pro Bono Panel: The Confessional (8/16/10)
Victoria Pynchon It is a truism that our greatest weaknesses can also be our greatest strengths. We all have something that we'd like to see changed. We're too easily startled by the unexpected. We don't have easy access to our own emotional lives. We're short-tempered. We speak softly, tentatively, when we'd rather be bold and appear confident. We're confident but we too often appear arrogant. We enjoy the sound of our own voice and tenor of our own opinions better than those of others. We have a difficult time seeing both sides of the issue. We'd rather be right than happy.
L.A. Mediator And The LASC Pro Bono Panel: Hope And Safety Or Rupture And Repair? (8/16/10)
Victoria Pynchon My primary job as a mediator, aside from learning the "case" and acquainting myself as deeply as possible with the parties' interests - is to "hold the space" of resolution. That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and insuring the parties that they are in a safe environment in which their conflict can be resolved without subjecting themselves to ridicule or other emotional harm.
In Defense Of Conflict (8/09/10)
Charles B. Parselle I wonder if one can really regard civil lawsuits as being about conflict at all, or mediating them as being about bringing peace into the room. It seems to me that lawsuits are essentially about adjusting interests, mostly financial interests. In mediating litigated cases we help shift money around the table, though clearly litigants often feel relief, especially if they win.
26 Ways For A Retired Judge To F$@! Up A Will Contest Mediation (8/09/10)
Victoria Pynchon I have often bemoaned the spotty state of mediation education, training and mentoring in the ranks of those people who mediate litigated cases. My own recent mediation experience - as a party - makes me even more concerned about the state of mediation practice. As you can see below, it also makes me feel what many people feel post-mediation and that feeling is anger.
New Communities For 21st Century Lawyers (8/03/10)
John Shaffer I encountered an old concept about problem solving presented in a new way when I attended the 17th Annual Northwest Dispute Resolution Conference at the University of Washington in May. In a session exploring the boundaries of conventional thinking about law and dispute resolution, the valuable idea that we exist simultaneously in what might be described as four quadrants of problem solving realities was discussed.
A Review Of Lawyers As Peacemakers: Practicing Holistic, Problem-Solving Law (7/26/10)
Brooke Deratany Goldfarb According to Ms. Wright, there is a rapidly expanding like-minded legal community out there, actively practicing the concepts of peacemaking, problem-solving and conflict-healing. Ms. Wright has been instrumental in telling these lawyers’ stories and bringing them together. Over a dozen years of her findings are culminated in her new ABA publication, Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law.
Why Isn’t ADR More Popular? A Report From Harvard (7/26/10)
Holly Hayes The article below was published this week on the Program on Negotiation at Harvard Law School website. It sheds light on a topic that I am asked about often — Why isn’t mediation more popular? In light of the potential for increased conflict with the implementation of health care reform, this question, and the answers below, appears to be even more
pertinent.
Old Wine New Wineskins And Lawyers (7/19/10)
William S. Harralson If Perry Mason sat down with you at the mediation table to discuss prospects for resolving a civil case, would you consider him to be an asset or a liability towards the success of the mediation process?
Am I Stepping Over The Line? (7/19/10)
Phyllis Pollack 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.
Chapter One of Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law (7/12/10)
J. Kim Wright This is an Chapter One of Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law by J. Kim Wright. A comprehensive overview of a movement, the book explores many peacemaking approaches including restorative justice, therapeutic jurisprudence, collaborative law and, of course, mediation, plus holistic problem-solving approaches like drug treatment courts. In this excerpt, Wright explores the paradigm shift that is occurring in law.
The Road Less Traveled: A Review Of J. Kim Wright’s Lawyers As Peacemakers: Practicing Holistic, Problem-Solving Law (7/12/10)
Diane J. Levin The idealism that drew many of us to law school endures, evident in the work of lawyers who have reclaimed their role as compassionate defender of justice, skilled negotiator brokering peace, or principled leader wielding influence. These lawyers have their champions and spokespersons, notable among them J. Kim Wright, publisher and editor of CuttingEdgeLaw.com, an online community and magazine for lawyers. Wright today coaches and inspires lawyers who seek to bring an ethos of care, mutual respect, and humanity to the way they practice law.
(7/12/10)
Keith Seat
The Supreme Court of Alabama concluded that the trial court had exceeded its discretion in approving attorney’s fees of one-third of the settlement reached in mediation for the severe burns suffered by a disabled minor in the custody of the state. The lower court emphasized the rapid work by the attorney to marshal evidence and experts in order to provide three bound volumes of documents to defendants, along with preparation of a “day in the life” film shown at mediation, which led to a settlement of $737,000, which was nine times the special damages. However, the Supreme Court noted the lack of time records from the attorney, the fact that he worked on the case for only fourteen weeks, and the willingness of defendants to engage in early mediation to minimize litigation costs. After a detailed analysis of many factors, the Supreme Court concluded that 20% would be reasonable as attorney’s fees, which a dissenting justice argued was just as arbitrary as the higher percentage in the absence of time records.
Madison Co. Dept. of Human Resources v. T.S., No. 1081405 (Ala., May 28, 2010)
Len Riskin: How Mediation has Integrated within Legal Practice - Video (6/27/10)
Leonard Riskin Len Riskin describes how mediation has integrated within legal practice: it has sparked collaborative law, a promising enterprise, but it also led to court-based mediations, which he believes are legalistic and adversarial instead of reaching mediations highest potential of bringing parties together.
Hugh McIssac: Concern for the Field - Video (6/25/10)
Hugh McIssac Hugh McIssac shares his concern of mediation being perverted into a form of evaluation. A court-connected mediator sees clients in highly stressful situations and makes recommendations to the court based on those encounters.
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