Conflict Resolution

Advanced Problem-Solving Strategies

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On Thursday, the California Second District Court of Appeal decided Porter v. Wyner, reversing a ruling that a new trial was required in a dispute between lawyer and client, because the original trial had included testimony about attorney-client communications in the context of a mediation.  This opinion seems to go further than the Cassel case,  in which attorney-client communications outside the presence of the mediator or the opposing party were held unprotected by mediation confidentiality.  The Porter court held that even though attorney-client communications might occur during or as part of the mediation process, they are not considered to have taken place “for the purpose of, in the course of, or pursuant to” the mediation. Evidence Code § 1119. As […]

When acting as a mediator, I try to develop a level of trust and personal connection with the parties who come to me for assistance.  So I might talk about my family, or my hobbies, or my professional background and experience.  Trying to establish a rapport with the parties’ attorneys, I sometimes find myself listening to and telling war stories about experiences with various judges, or certain types of cases.  While sharing those stories can be a useful way of talking about the case at issue, there is a danger in doing too much of that.  The danger is that the parties sometimes get left out of the process.  Parties find themselves mystified by too much shop talk.  They may […]

We can only speculate as to why Carrie Prejean settled her lawsuit against the Miss USA Pageant, because she has refused to reveal her reasons on the grounds of mediation confidentiality. I of course have no interest in any such rumors, and of course Carrie Prejean has every right to refuse to talk about her reasons for settling her lawsuit, regardless of whether she is bound to refuse or not. My only interest is in educating the public about the proper bounds of mediation confidentiality. Coincidentally, the Second District Court of Appeal in California issued a decision yesterday in a case called Cassel v. Superior Court on this very topic. No, not sex tapes! Mediation confidentiality. Cassel filed a legal […]

A study reported in The Jury Expert (brought to my attention on Phyllis Pollack’s blog), came to the somewhat surprising conclusion that the mediator’s behavior did not greatly affect the agreements reached. The researchers observed 62 mediations, then coded and analyzed the particpants’ statements, and correlated those with the results achieved. They were surprised to find that the mediator’s behavior and techniques seemed to have a limited impact on the results.  The authors conclude that, rather than seeing their actions as determinative, mediators “should understand that they are hosting a negotiation process.” (This sounds like a comment noted in my post on the “beer summit”, where one of the participants described President Obama’s contribution as providing the beer.) This conclusion […]

Some mediators view the parties’ attorneys as an obstacle to achieving a settlement. I do not find that approach constructive. While attorneys may seem to have a vested interest in preventing settlement, more often the attorneys are just trying to get the best possible result for their clients. Attorneys also generally recognize that settlement is more likely to achieve the best result for their clients than taking on the risks and costs of trial. Most attorneys are pretty cautious, and most do not like to lose. That means that the attorneys are generally well aware that there is a good chance they will not be able to get as favorable a result at trial as their client is hoping for. […]