What's New
Video Pick: Quality Mediation Takes Time (3/07/10)
Ann Milne Mediators have an obligation to educate future mediators and the public about mediation and this is a process that takes time; some courts put pressure on mediators to settle in a certain number of sessions and this creates muscle mediation, or forcing the parties into settlement.
The Pitfalls Of Evaluative Mediation (3/01/10)
Phyllis Pollack 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
What Will She Tell Her Husband? (3/01/10)
John DeGroote When was the last time you were in mediation and the other side just didn’t “get it”? You have what you need to win the case — documents that demonstrate the fraud, confirm the negligence, or whatever — but the other side just won’t go away. You offer a few dollars so you’ll be done by lunch, but she still won’t give in. Why not?
Changes In Legal Practice And The Use Of ADR (3/01/10)
Richard J. Webb In case you haven't noticed, the law business - the way law is practiced - has been changing at a rate uncharacteristic of the profession. Financial pressure from the economic downturn is a major contributor to this development. But change was afoot long before the subprime meltdown and stock market nosedive. The viability of the "big law" pyramid model for most purchasers of legal services has been questioned since the starting salaries of newly minted associates crossed into six figures, but only with the disappearance of easy money has awareness of the issue entered the mainstream.
In Mediation, Who Gets To Say “We’re Done”? (2/22/10)
John DeGroote It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual: This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.
Notable U.S. Mediation Cases (2/09/10)
Keith Seat This article, by Mediate.com News Editor Keith Seat, summarizes recent legal cases involving mediation from around the U.S.
Understanding Your Downside Risk (2/08/10)
Michael P. Carbone As a plaintiff in litigation, it is hard to imagine anything more frustrating than to get to the end of the road and to learn that you are may be the party writing the check instead of the one taking it to the bank. That is what happened to the plaintiffs in Goodman v. Lozano, S162655, decided this week by the California Supreme Court.
Mediation Confidentiality In Federal Court Revisited (2/01/10)
Phyllis Pollack 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.
New Information: One Way To Help Your Client Save Face (2/01/10)
John DeGroote The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.
(1/26/10)
Keith Seat
A Florida appellate court determined that amendment of a Florida statute expanding mediation requirements to commercial residential insurance policies, such as condominium associations, applies retroactively to contracts formed prior to the amendment. The court analyzed a balancing test to determine whether the impairment of the contract is constitutionally tolerable, and concluded that impairment is minimal since mediation is non-binding, mediation costs are less than conducting an appraisal, insurance is already regulated, and there is no immediate harm or ongoing change in the contractual arrangements. The court found that minimal impact was outweighed by the state’s express purpose in expanding mediation requirements to address a substantial economic issue.
Florida Ins. Guaranty Assoc. v. Devon Neighborhood Assoc., 2009 WL 4283084 (Fla. App. 4 Dist., December 2, 2009)
Initiating The Dance (1/25/10)
Phyllis Pollack 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.
The Mediator’s Proposal Roundtable: The Good, The Bad, The Ugly (1/25/10)
Steve Mehta Recently the topic of the mediator’s proposal came up in a topic of conversation. Several people had different views on how the proposal should be made, if at all. I decided that this might be a nice topic for a Mediation Roundtable. The format of the roundtable is that I have given each mediator 5 questions. Each mediator’s answer will be in its original form, unedited, and together. This will provide you with several different views on one topic in one place. As such, I am presenting to you the topic of Mediator’s Proposal Roundtable: The Good, Bad and Ugly.
(1/19/10)
Keith Seat
Mediation programs for litigated cases on appeal are developing around the country, such as the pilot mediation program beginning in Maryland’s Court of Special Appeals. Maryland hopes to reduce the 1,300 civil appellate cases heard each year by the court, and will conduct its pilot program for at least a year. However, a pilot appellate program in the Arkansas appellate courts has been slow to develop. After a year, only a couple of appellate cases have been mediated in Arkansas’s voluntary program. The state supreme court justice who oversees the program suggests a key difference is that Arkansas does not have the congested court dockets of other states.
Daily Record (November 22, 2009); Arkansas Times (November 19, 2009)
(1/19/10)
Keith Seat
The latest figures from the St. Louis Archdiocese show that it spent $350,000 last year on victims abused by priests and more than twice that on its lawyers, although over the past ten years victims received $7.6 million while its lawyers were paid $5.9 million. The archdiocese set up a mediation program in 2003. An attorney for the archdiocese states that it attempts to address credible cases through mediation and has resolved up to 90 percent of the cases that way.
Kansas City.com (November 16, 2009)
The Use And Abuse Of The Joint Session (1/18/10)
Michael P. Carbone Traditionally, mediations of litigated cases begin with a joint session in which the mediator invites both sides to explain their case. The mediator moderates the discussion to insure that each person has an opportunity to speak without interruption. Time may also be provided for rebuttals or to pose questions to the other side.
Think With Your Head And Your Heart! (1/18/10)
Phyllis Pollack 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.
Do Attorneys' "Get In The Way" Of Mediator Assisted Negotiations? (1/18/10)
Victoria Pynchon The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers."
New Employment Case Limits Right To Recover Attorneys Fees (1/18/10)
Jan Frankel Schau Plaintiff's attorneys will likely be scrutinizing the intake on these cases more thoroughly where the damages are low. Employees who have been wrongly terminated may have less access to quality attorneys to take their cases where damages are small. Indeed, I'm going to assume that more of these cases will be settled earlier and through mediation than assuming the risk and expense of trial in light of this decision.
Uncertainty Drives Conflict Resolution (1/11/10)
Alec Wisner In my experience, the more uncertain the attorneys and parties are about the outcome in court, the more amenable they will be to all the other solutions available to them in mediation. These solutions can include simple distributive negotiation, a mediator’s proposal, creative construction of terms, or anything else that works for the parties. The point to take with you is this: A party that feels certain, that it has little to lose, will feel that it has little motivation to go that extra step that invariably makes mediation successful. Your job is to dispel that certainty!
Remembering The Human Factor In The Practice Of Law (12/14/09)
Diane J. Levin A century ago, Dean Roscoe Pound famously exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern”, “putting the human factor in the central place”.
ADR And The New Alternative (12/07/09)
Michael P. Carbone Anyone who works in the dispute resolution field knows that ADR has always stood for "alternative dispute resolution." It is also common knowlege that the usual alternatives are considered to be arbitration, mediation, private-judging, and neutral evaluation. So "ADR" is commonly used to refer to any or all of those forms of dispute resolution. But, has this usage become misleading?
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