Conflict Resolution

Advanced Problem-Solving Strategies

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I did some posts this week on my political blog, trying to understand why voters seem so angry this campaign season.  After trotting out some of the usual suspects like our dysfunctional government, and the economy, I turned to the touchier subjects of intolerance, racism and xenophobia.  We certainly have a lot of problems to deal with in our country right now, but my mind keeps returning to the question of why we need to react to those problems with anger and recrimination.  Didn’t we, less than two years ago, embrace the promise represented by the Obama campaign, of trying to approach our problems with a spirit of cooperativeness and inclusiveness?   A majority of the country actually elected a […]

If there is a dispute about the contents or the existence of an agreement of the parties following a mediation, is it ever appropriate for the mediator to testify?  The California Second District Court of Appeal, in Radford v. Shehorn, said that such testimony would only be allowed if the parties agreed to it, meaning that it is hard to think of a situation where testimony by the mediator would ever be permissible or useful.  (But see this post by Vickie Pynchon on another (unpublished) case where the mediator was permitted to testify that a written agreement the insurance company was seeking to enforce conformed to what the parties agreed during the mediation.) In the Radford case, there was a […]

At a Southern California Mediation Association meeting I attended today, we heard a version of a talk that Presiding LA Superior Court Judge McCoy has been giving around the county about the effects state budget cutbacks are having on our local courts.  These cuts could increase the time from filing to trial of civil cases from about 18 months currently to two or more times that long. One might think that court delays would increase the demand for alternative dispute resolution, but while that might hold true for arbitration, it does not seem to increase the demand for mediation.  If we are going through a transitional period where the lag time for civil cases is increasing, that means parties have […]

Whenever an attorney involved in a mediation asks me if their client can be available by telephone, I am usually reluctant to agree.  If the case is important enough to require my personal attention, should it not be important enough to the parties to compel their presence?  After all, it’s their case.  It also seems intuitively obvious–though I’m sure there are studies to back this up–that mediation is more likely to be successful if people take it seriously enough to attend in person, and if they have the opportunity to communicate face-to-face at least with the mediator and preferably with the other side.  Or maybe I just feel that phone mediation, like phone sex, can never be as satisfying as […]

At a recent seminar, we were discussing the enforceability of agreements reached at mediation.  I asked the instructor whether he would agree that when parties find themselves back in a dispute over the meaning of their agreement, or whether they have even made an enforceable agreement, that dispute in itself indicates that the mediation failed at some level.  He proceeded to tell a story about a very contentious case he had once mediated, where the parties worked over the weekend, almost walked away from the table numerous times, and finally settled on the morning of the scheduled trial, after the judge held off the commencement of trial to give the parties a couple more hours to complete their agreement.  A […]

The practice of going to mediation to resolve a litigated dispute has become routine.  Mediation is now viewed as a planned-for stage in the proceedings where the case is likely to get resolved.  The parties file their pleadings, attend a scheduling conference with the judge, perhaps engage in some motion practice, perhaps exchange some written discovery, but often postpone at least some depositions, expecting to settle the case at a scheduled session with a mediator.  This practice seems all well and good–good for the parties, good for mediators.  But maybe it’s too much and not enough at the same time. If all you want to do is settle the case, there are lots of ways to do that without calling […]