Conflict Resolution

Advanced Problem-Solving Strategies

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Those who take mediation seriously want to encourage parties to participate in good faith, and to prepare properly for mediation sessions, so that the process can achieve maximum benefit. We have to recognize, however, that there can be a tension between the desire to make sure that the parties don’t waste each others’–and the mediator’s–time, and the need for confidentiality, safety and flexibility in making mediation work. In other words, how do you promote the most effective use of mediation without slipping into exactly the kind of rules and sanctions-based world that mediation was designed to escape? Don’t ask the courts to resolve this dilemma, because they don’t see it. Courts are entirely comfortable operating in the world of rules […]

Even if there hadn’t been a movie making this whole story famous, those of us concerned with the law and mediation might still follow the saga of the lawsuit between Mark Zuckerberg and the Winklevosses with interest.  Yesterday the twins were dealt a setback in their efforts to overturn a settlement they claim was fraudulently induced. Here is the Ninth Circuit opinion’s description of that settlement agreement: Affter a day of negotiations, ConnectU, Facebook and the Winklevosses signed a handwritten, one-and-a-third page “Term Sheet & Settlement Agreement” (the Settlement Agreement). The Winklevosses agreed to give up ConnectU in exchange for cash and a piece of Facebook. The parties stipulated that the Settlement Agreement was “confidential,” “binding” and “may be submitted […]

Last week the California Supreme Court decided the Cassel case, reversing a decision of the Court of Appeal which had carved out an exception to mediation confidentiality.  The exception applied to certain communications between a party participating in a mediation and his own attorney, which the party subsequently sought to use in support of a malpractice claim against that attorney.  In a previous post on this topic, I argued that while questionable as statutory interpretation, such an exception should not unduly threaten the general principle of mediation confidentiality.  The Supreme Court’s opinion states that it understood the policy concerns that arise from shielding evidence of potential malpractice claims from scrutiny.  Nevertheless, the Court held that the plain language of the […]

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 […]

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 […]