Long ago, an attorney client told me she was bringing me a case to mediate that required my “magic” since she saw little chance of resolution, but the court had strongly suggested the parties try mediation. The case settled in mediation. More importantly, her comment made me reflect on the mediation techniques I regularly rely upon to resolve seemingly intractable conflicts. Apart from proper wand technique (and equally applicable to in-person and video-conference mediations), my top four pieces of “mediator magic” are: Establishing trust; Identifying themes; Believing the parties are closer to agreement than they appear (my observations and some […]
A large gap in the parties’ respective positions is a tough challenge. One effective way to overcome the gap is by using what I call “Progress by Indication”, or PBI. In Progress by Indication, once progress slows, the parties begin negotiating with two kinds of numbers. The first is the “official”, unrealistic incremental number that the parties start/continue with for a variety of reasons. The second is derived from a realistic range where the case can settle. This range is determined either by express information from the parties, or by the experienced mediator accurately reading […]
Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks to pass plaintiff’s claims onto subcontractors. The subcontractors concentrate on minimizing alleged damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. A mediator can steer these players towards resolution by preparing them for meaningful settlement discussions in advance of the mediation. First, discuss with the participants the necessary parties and their roles at the project. All attorneys should read their clients’ contracts prior to the […]
While learning to try a lawsuit, I was taught to imagine switching sides and presenting my opponent’s case. Eventually, that approach came naturally when evaluating a case. I was fortunate to represent plaintiffs and defendants and learned many of the distinctions in the trenches. After a few years of practice, the patterns of how pieces of a case fit together became clearer. I developed what I considered a reliable view of the strengths in my case and in my opponent’s case as well, and of course the weaknesses too. And during that time, I also watched and admired how skillful […]
These days, now that I’m a full time mediator, I feel like someone emptied half the pieces out of the puzzle box before giving it to me. Some of the challenges we’re facing now include: Missing parties (suspended corporations, bankrupt or near bankrupt parties, or parties simply on the lam Missing insurance carriers (liquidated carriers, CIGA involvement, exhausted policies) Coverage problems for insurers that remain (high self insured retentions that must be satisfied by parties and sometimes by missing parties, broad coverage exclusions, coverage battles among insurers, diminshing additional insured coverage, etc.) It’s a real challenge to put a settlement […]
In the less than three years since its began, the Institute has worked with judges, mediators and academics from over 20 countries- from Bhutan and Egypt to Cameron, Singapore, Turkey, Brazil, Italy, Russia and South Africa. Both established and emergent mediation leaders come together to learn of and to share best ADR practices. This work is enlivened and complemented by the Center’s new but already robust on-the-ground international efforts. This year we have provided technical assistance to a court in China, presented and conducted site visits in Singapore and Hong Kong, provided mediation training in Spain, assisted with an ABA/UN […]
As impartial mediators, we are expected to conduct our work in a manner which is objective and free of bias. We strive to be neutral. Yet, recent cognitive science research suggests this may be harder to do than previously believed. Of particular concern are the thought processes and behaviors in which we may engage and of which we are completely unconscious. Discussed herein is a collection of recent cognitive science and psychology studies which relate to the skills we use in our mediation work. This non-exhaustive overview of implicit bias research along with its implications for mediation triggers reflection about […]
One of the most sensitive challenges facing the ADR professional community is the issue of diversity. As many observers have noted, the substantial majority, indeed, a super-majority of lawyers serving as arbitration and mediation practitioners are white and male, and the efforts to bring diverse neutrals into the profession have faced significant difficulties. Even where the intentions are the best, efforts to diversify the field have met with limited success to date. In an effort to move this process forward, the ABA recently adopted Resolution 105, which states as follows: RESOLVED, That the American Bar Association urges providers of domestic and […]
New Law. On January 1, a new California law will take effect. It will require a lawyer to make sure their client understands the implications of California’s legal protections for mediation communications, before the client agrees to mediation. If the client has already agreed to mediation before seeking counsel – by participating in a divorce mediation, or signing a contract with a mediation clause, for instance – then informed consent will be required as soon as possible after engaging counsel. Senate Bill 954 by State Senator Bob Wieckowski will add a new Evidence Code section 1129, and a new paragraph […]
I don’t lie to clients in mediation. I don’t tell both rooms they’re going to lose, or anything like that. I won’t even do it when they ask me to do it. “You’re beating them up in the other room, aren’t you?” We’ve all heard it, right? Some clients in mediation—not very often the lawyers anymore, but their clients—think that’s your job. This is probably because their counsel said something like this when describing the process. But it’s not our job to beat people up, or to lie to them along the way. It’s their adversaries’ job, right? You’re the […]
In my recent Society Session presentation on “Mediating Inheritance Disputes,” I talked about the challenges presented by the often intense emotions that such cases force to the surface. A mediator has to anticipate and accommodate the grief, anger, and resentment the parties are struggling with, which are often the real issues and just as often impede progress toward resolution. That can be done in part, I suggested, in setting up the mediation: finding out ahead of time where the tensions are, sometimes having extended one-on-one discussions with a party and counsel, sometimes scheduling more than one session, deciding whether a […]
The following is excerpted from our Appellate Mediation: A Guide for Attorneys and Mediators published in 2016 by ABA Publishing. A. Significant Differences between Appellate Mediation and Mediation Occurring before a Trial Court Judgment Mediations before and after entry of a judgment differ significantly. The existence of a court judgment or appealable order has critical implications for risk analysis, settlement options, and timing of appellate mediations. Appellate mediations occur after at least one party has prevailed legally and another has lost and therefore focus their risk analysis and case valuations on whether the trial court made a mistake. By […]
Empathy is a big subject. My purpose here is just to offer some brief observations and comments. In particular, I’d like to raise three questions. First, what do we mediators mean by empathy – how should we define it? Second, why is it important for us? And third, how can we as mediators create an empathetic connection with the people – parties – we’re trying to help. Definitions of Empathy Commentators have formulated various definitions of empathy. Most definitions are similar; some are more complex than others. In Beyond Winning, his book on negotiation, Robert Mnookin defines empathy as “the […]
We often talk about a mediation being “successful” because the case settled, or conversely that it “failed” because a full settlement was not achieved and at least some parties are continuing to fight. But “success” or “failure” articulated by the result does not always correlate with the parties and counsel being fully satisfied with the mediator and the mediation. Intuitively, as mediators, we would expect a “successful” mediation to result in participant satisfaction and therefore referrals, good references, repeat business, and an enhanced reputation. We would also assume that not reaching settlement might have an adverse, or at least a […]
Dear Peacemakers: Bruce Edwards’ article below came to my attention as I was contemplating what we as mediators can do during this tumultuous time to help ourselves, those we live and work with, and our broader communities manage the discord and rancor that reached breaking point after the November 8th election. Our conflict resolution skills and experience uniquely position us to be leaders through this time of intense social and political tension, to facilitate communication and growth to a better place and life for everyone. On this note, I commend to you Bruce’s article. Happy Holidays and a Peaceful New […]
By Roderick Thompson and Erik Olson, Farella Braun + Martel LLP Does federal common law govern admissibility in federal court of a written agreement reached during mediation that resolves both California and federal law claims, even when only state law claims remain pending at the time of enforcement of the agreement? In a precedential but split panel decision, the Ninth Circuit held that it does. The issue is significant. The district court had ruled the settlement agreement inadmissible for failure to use the magic words required by the California Evidence Code. The panel reversed and remanded. In In re […]
Many of us, in our role as mediators, often interact with attorneys and litigants who tell us they feel they “need” a retired judge to act as the mediator in their cases because a judicial officer will have more “persuasive power.” It becomes incumbent on those of us who are not retired judicial officers to point out that “power” is not necessarily helpful to reaching a negotiated settlement, and that while many judges make excellent mediators, being a former judicial officer does not mean that a person has developed skills that are essential to mediation.
(Article originally published on 6-10-2016 in http://www.callawyer.com/2016/06/mediation-confidentiality/)
The assurance of confidentiality in mediation is essential to the success and integrity of the process. Knowing that everything said or done in mediation will remain confidential allows parties to confide with the mediator more freely. It opens the door to frank and honest discussion. Indeed, candor with, and full disclosure to, the mediator in confidence can be the key to a successful resolution of even the bitterest of controversies.
And when we’re talking about “everything” said or done in mediation, we mean everything, including but not limited to preliminary emails and phone calls, follow-up communications, written statements, and the parties’ respective negotiating positions.
As most of us know, for the past three years, the California Law Revision Commission has been studying the question of whether there should be an exception from mediation confidentiality for evidence of attorney malpractice. The study commenced in response to an attempt by the California Conference of Bar Associations to enact a bill that would overturn the decision in Cassel v. Superior Court, (2011) 51 Cal. 4 th 113.
The Commission faces a daunting task. The general public understandably believes that attorneys who commit malpractice during the course of a mediation should not go unpunished. This view is probably shared by most members of the California legislature. Thus, the Commission is under a great deal of pressure to propose a bill that provides for an exception, even though the Commissioners and, in particular, the Commission staff understand that creation of an exception may seriously undermine the concept of mediation confidentiality and, in turn, the practice of mediation.
Prince Law & Mediation
Clients often tell me, “I didn’t think the other side would ever agree to that number.” One of my oft-repeated retorts is, “Oh ye of little faith!” I say this with humor (since the same thought undoubtedly went through my mind), yet it strikes me how much overcoming perceived impasse requires both sides to simply trust the mediator and have faith that if they continue, they will reach settlement–even when they do not trust the opposing party and perceive a vast gulf between the parties’ positions. Is there mediator magic afoot?
In my capacity as the new editor of this little piece of cyber real estate, and in the absence of any ready submissions in the queue, I offer some thoughts on a matter of common interest – the use, misuse and overuse of mediator’s proposals.
First, the target: What number is the right number? The moniker we use for this process implies to some that the number (and/or other terms) represent the mediator’s own sense as to an appropriate outcome, given her view of the strengths and weaknesses in liability and damages proofs. Others view the proposal as an endorsement, a resolution the mediator deems fair and reasonable under a wider range of circumstances. To me it’s neither of these, and both: It’s the number that has the most likelihood of settling the case . . . without shocking my conscience either way.
The views expressed are those of the author. The Mediation Society has not taken an official position on this issue. TMS board and members have varying views on this topic. This information is being provided to alert members interested in developments, so that those who wish to express a view on the matter to CLRC may do so in a timely manner.
Commission Again Votes to Remove Confidentiality Protections
Confidentiality Update – Oct. 8 Law Revision Commission Meeting – Good News, Bad News
At their October 8 meeting, the California Law Revision Commission again took a series of votes on their Study K-402. Since their August 7 meeting and voting, they had received hundreds of communications from mediators, mediation organizations, and retired judges opposing their decision to remove our current confidentiality protections whenever lawyer misconduct is alleged. Many of these are available here: http://www.clrc.ca.gov/pub/2015/MM15-46.pdf
It really got my attention, this article that I read today in the Wall Street Journal.
Law professors, litigators, and judges meditating and pacing trails in silence with the guidance of a Buddhist priest.
Lawyers learning to recognize the “humanity” in opposing counsel.
They will suppress the urge to interrupt or to think about a response before the other lawyer has even finished what she was saying.
Most civil disputes settle before trial. Mediation, whether private or court connected, is the most frequently used method in reaching resolution. Use of a pre-mediation conference is an effective first step towards such resolution. This Article considers mediation from the advocate’s perspective.
Although the matters to be discussed at a premediation conference are unlimited and any relevant issue may be brought to the mediator’s attention, the following subjects are invariably addressed.
∙ Nature of the Dispute
∙ Decision Makers
∙ Exchange of Information
∙ Impediments to Settlement
∙ Settlement Status
∙ Exchange of Mediation Statements
∙ Self Represented Litigants
(Originally published by Mediate.com)
Confidentiality remains the keystone of mediation. Individuals and businesses alike widely regard mediated negotiation as a critical and necessary part of dispute resolution. Mediation confidentiality promotes candor and facilitates mutually beneficial solutions. Conversely, an absence of confidentiality can compromise the entire process. That said, in complex civil disputes there seems to be a consequence of mediation confidentiality that is at best not being discussed, or, worse not being considered: Proof problems in related disputes are the unintended consequences of mediation confidentiality.
?DO YOU WANT TO PROTECT MEDIATION CONFIDENTIALITY?
Very powerful forces are now pushing to weaken it.
MEDIATORS: Will this be your new opening statement?
“Anything you say may be used as evidence
if the other side complains against their lawyer.”
With the approval of the Mediation Society Board, Ron Kelly urges you to take a few minutes to read this brief announcement – then spread the information and get involved. Major changes to California’s mediation confidentiality protections are being proposed, and the Law Revision Commission wants especially to hear from mediation users. (The Board has taken no position on this. Any opinions expressed are solely Ron’s.)
© Liaise® Mediated Solutions, LLC 2015
Many, many times, as a litigator and now as a mediator it is plainly obvious to me that scores of parties hurt their cases because they suffer from glossophobia, or fear of public speaking. Credible positions and worthy causes are undermined because the person who ultimately has to give voice to their cause is overwhelmed at the prospect and wilts in the witness chair, or around the mediation table.
What is more, you need not even talk to these people to absolutely know that they have a very small chance of just saying what they need to say to achieve their optimum result. No talking is required because their body language practically screams that they cannot and will not rise to the occasion. They have no chance. Their heads are down, their shoulders are rounded, their hands are folded or in a pocket. One look informs even a casual observer that this person is trying to become invisible and will grasp at almost any opportunity to avoid having to step into a spotlight and tell their story. I would not be surprised that this phenomenon is a meaningful factor in the classic “plaintiff’s cold-feet” scenario where a litigant folds and settles for less value then their matter merits just before trial.
Do remember that the mediation session will very likely be the last day of your case.
Do treat the event with the importance it deserves, and start by preparing an effective, timely brief.
Do submit and exchange your brief at least one week, and preferably two weeks, before the session. This allows time for opposing counsel to get it to her client. Particularly if an insurance company is on the other side, it will need at least 10 days to consider and react to the brief — perhaps by increasing its reserves on the case. Moreover, mediators have a lot to read — help them out by giving them the time they need to digest your brief and put in a call to you to discuss the case.
When we mediators work our “magic,” it’s because we listen and try to understand what is behind the rhetoric. What more than money would it take to get these parties to settle? Perhaps, a memorial set up at place of death, a charity to prevent or create awareness of the injury, a public declaration of a wrong, an apology, outplacement services for a plaintiff in an employment case and so forth. These are just some in a long list of creative non-monetary solutions that have been used in settling cases that are sometimes too difficult to settle with just dollars.
As the immediate past chair of the 18,000-member Dispute Resolution Section of the American Bar Association, I have had the privilege of interfacing with mediators from a wide variety of diverse geographic and cultural backgrounds. Although there are different approaches and styles throughout the world, what remains constant in our profession is the ability of the mediator to probe and understand the nature of the dispute and use his or her own creativity to bring folks to settlement with money, of course, but increasingly more often, with something more than just the money.
Last summer, I was recruited to mediate Superstorm Sandy insurance coverage disputes between New Yorkers and their carriers. At the peak, I was mediating 4 disputes a day in Brooklyn and Lower Manhattan. The stories I heard from homeowners were, to say the least, heartbreaking. More than just the physical destruction, the families were emotionally scarred more than half a year after the storm.
Even though the individual facts varied a bit, the common fact scenario was that floodwaters had directly or indirectly damaged their property and/or prevented the homeowner/business-owner from using their property for a period of time. The claims before me had been denied due to the floodwater exclusion and the anti-concurrent causation clause in the policy. In a nutshell, the former says that if the harm is caused by water that is not falling from the sky, it is excluded. The latter says that if there are multiple causes for the harm and one of them is floodwater, then none of the damage is covered. Thankfully, that’s not the law in California.
With that background, mediating these disputes was a daunting task and I tried to not make them into exercises in futility. Thankfully, the insurance representative would usually start the mediation by declaring that her objective was to find coverage, not deny it. I took those as my marching orders and kept the parties in joint session thus forcing them to collaboratively work out a solution.