Conflict Resolution

Advanced Problem-Solving Strategies

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The state of Maryland commissioned a cutting edge research project that has succeeded in measuring the effectiveness of the state’s court-connected ADR program in limited jurisdiction courts. This study attempted to do much more than track settlement rates achieved through the program; the researchers also assessed the satisfaction of participants with the system, comparing the results with control groups of litigants who did not utilize the program. They found that participants who achieved settlement through ADR processes were most satisfied with court than those whose cases were adjudicated by the court. Even more tangibly, those cases were more than 20% less likely to return to court for enforcement or other follow-up action, a finding of considerable cheer to court administrators […]

I will be speaking as part of a panel, along with Mary Culbert and Phyllis Pollack, on Saturday, February 28, 2015, at 10:00 a.m., at Loyola Law School. The topic is mediation confidentiality. It’s a timely subject, because recent cases have raised questions about whether the broad protections for mediation confidentiality in California, can still be relied upon. In particular, many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined “due process” exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception […]

I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side’s great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach. Mindful of stories like that, I try to […]

In Los Angeles County, where the court is no longer assigning mediators, attorneys who used to rely on the ADR panels might be feeling a bit at sea. One reason is that many attorneys appreciated the court’s service in saving them the bother of having to choose a mediator. That way attorneys didn’t have to admit to their adversaries that they might be interested in settlement. They didn’t even have to try to reach agreement with opposing counsel on how and where to conduct mediation. They didn’t have to admit to their clients that they might actually want to let go of their dog of a case. If they wanted to, they could blame the court for forcing this procedure […]

I had a chance a while back to attemd a training session with Gary Friedman, a mediator in Northern Calilfornia, who is known as one of the foremost practitioners of joint session mediation. In fact, Friedman insists on conducting mediations start to finish with all parties in the same room. He will not even read mediation briefs marked as confidential, and he refuses to hold any information discussed with him during a mediation in confidence with respect to the other parties. If the parties to a mediation run by Friedman want to hold a private caucus, Friedman allows that, but they have to do that without without the mediator present. Since I am also a believer in joint sessions, I […]