Conflict Resolution

Advanced Problem-Solving Strategies

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The practice of quickly moving to caucus sessions has become so widespread that many parties attending mediation seem to expect to caucus almost immediately.  Parties seem to want to cut to the chase of settlement negotiations quickly, and are concerned about the possible volatility of a joint session.  I had a couple of experiences recently where counsel expressly asked me before the mediation even began to please not even allow the parties into the same room at all, because they viewed it as a waste of time, or worse, to face the other side.  My response was to suggest that we at least stay together for introductions and some initial housekeeping matters, and then continue in joint session only for […]

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 […]

Once again, Carrie Prejean instructs the nation in etiquette, in this case telling us that it is “inappropriate” to ask questions about the parties’ motivations in entering into a settlement.  As Larry King should well know, asking someone why they settled a lawsuit would destroy the principle of mediation confidentiality.  Is it even necessary to get into the many ways in which Ms. Prejean’s understanding of confidentiality is incorrect? The question I would rather ask is, why would you go on the Larry King show in the first place if you don’t want to talk about it? Thanks to Jim Melamed for posting this link. (and for another post showing my unhealthy fascination with Carrie Prejean, go here.)

A lot of mediators will start off a mediation with the disclaimer that, unlike a judge, they have no power to decide the case. They are merely there to help facilitate a resolution. This strikes me as an unhelpful way to begin the proceedings. It seems better to remind the parties of all of the benefits of mediation that they cannot obtain in court. For example, mediation can provide an opportunity to make arguments directly to the opposing parties, as opposed to making arguments to a neutral party like a judge. Mediation also empowers the parties to craft their own solution to the dispute, rather than placing them at the mercy of a judge. Mediation makes parties the masters of […]