Conflict Resolution

Advanced Problem-Solving Strategies

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I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it’s hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts. We are looking for statistical measures of the success of mediation as compared to other means of resolving cases in court (settlement conferences with judges, arbitration, neutral evaluation, lawyer-initiated settlement discussions, disposition by motion, trial, etc.) That also tends to be the way that judges measure the value of court-connected or private mediation programs. We can’t help but wonder which method gives you the most bang for the buck. But those kinds of measures only tell part […]

More than a year after closing most of the LA Superior Court’s ADR program, in conjunction with consolidating and closing courtrooms around the county and other cutbacks, how is the court faring? For all the predictions of disaster, it seems this court system is managing surprisingly well. The courts have been able to maintain most trial dates, in the administrators’ view probably the most important requirement for keeping the court processing its workload. Local rules have been modified to decrease the number of court appearances, especially in personal injury cases. Judges are figuring out how to muddle through with fewer staff positions, and parties are coping with a system that has significantly reduced their ability to interact with court personnel. […]

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 […]

At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist […]