Conflict Resolution

Advanced Problem-Solving Strategies

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Can mediation confidentiality threaten a party’s right to due process? A recent case out of the Central District of California, Milhouse v. Travelers, currently on appeal to the Ninth Circuit, held that the due process rights of a party can override the parties’ agreement, and a state evidentiary rule precluding the admission in any subsequent proceedings of statements made in mediation. The district court allowed an insurance company being accused of bad faith refusal to settle a claim, to introduce evidence of the plaintiffs’ demands made during a mediation, for the purpose of showing that it was the plaintiffs, not the insurance company, who were acting unreasonably. Generally in California mediation confidentiality is treated as sacrosanct. Maybe a little less […]

The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a proposed opinion attempting to draw the line between unethical misrepresentations during negotiations, and permissible “puffing.” Using this distinction, false statements about, as examples, the existence of favorable witnesses, or about the amount of a party’s earnings, or about policy limits, would all fall on the unethical side of the line, and would subject an attorney making them to potential discipline. On the other hand, false statements about a party’s “bottom line” of settlement authority, or about a party’s willingness to litigate or its plans to file bankruptcy, would be considered mere “puffing,” basically the kinds of lies that parties expect the other side to tell during […]

A recent case from the Court of Appeal in Florida illustrates the perils of confidentiality clauses in settlement agreements, but something more as well. Patrick Snay brought an age discrimination suit against a private school that did not renew his contract as headmaster, and settled the case for $80,000 plus $60,000 in attorneys’ fees. (According to footnote 5 of the opinion, it appears the settlement was accomplished by mediation.) So far, so good. The settlement agreement contained a strict confidentiality clause prohibiting the plaintiff from disclosing, directly or indirectly, any information whatsoever about the existence or terms of the agreement to anyone except professional advisers. But Snay’s daughter, who was a student at the school, and apparently had also suffered […]

At a program I participated in this week (my part is summarized in the two posts below on choosing a mediator), co-sponsored by the Santa Monica Bar Association, one of the panelists, mediator Mark Fingerman, gave an informative presentation on mediation ethics. The problem of assuring that mediations are conducted in a fair and ethical manner is complicated by strict protections for mediation confidentiality that exist in California. While confidentiality is generally agreed to be necessary to the process, prohibitions against introducing evidence of misconduct alleged to have occurred during mediations can potentially give free rein to attorneys–and mediators–to pressure or deceive parties into agreeing to settlements to which they might not have agreed otherwise. In fact, mediation seems in […]

When I was in high school, I had a chance to see the Amazing Kreskin perform his “mind reading” and similar feats in the school gym before a large audience. One of Kreskin’s signature stunts is to ask the event organizers to hide his check anywhere in the room where he is performing. If he fails to find it, which apparently hardly ever happens, he forfeits his fee. I still remember watching Kreskin run up and down the risers supposedly drawn by the mental waves he was feeling, until he inevitably found what he was looking for. I can’t say for sure how he does it, but it seems likely that in addition to any psychic emanations he might have […]