Conflict Resolution

Advanced Problem-Solving Strategies

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Ryo Oyamada was fatally mowed down by a police car in New York City four years ago. An article in the New York Daily News today reported on the settlement of a family’s suit against the police department for the wrongful death of their son. I was struck by a statement the family is reported to have released explaining their decision to accept the settlement: “Our family feels that there is no way to hold the NYPD accountable through the court system.” It’s sad to hear of a party that feels so defeated by accepting a settlement. I know nothing about this particular case, aside from the scanty details provided in the news article, but it seems unfortunate that the family […]

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 […]

Last year the California Supreme Court upheld California’s expansive protection for mediation confidentiality to bar evidence of attorney-client communications made during mediation in support of potential malpractice claims against attorneys. In doing so, however, the court practically begged the legislature to consider amending the statute to allow the use of such evidence. A bill has now been introduced in the legislature to do just that. It would amend Section 1120 of the Evidence Code, which already provides some very narrow exceptions to mediation confidentiality, to add this new exception to the general rule of inadmissibility: (4) The admissibility in an action for legal malpractice, an action for breach of fiduciary duty, or both, or in a State Bar disciplinary action, […]

“Preparation, preparation, preparation,” is the trial lawyer’s mantra. It is possible to over-try a case, but it is not possible to be over-prepared for trial. On the other hand, preparation is expensive. And preparation may seem wasteful, if the case does not go to trial, as most cases don’t. So most trial lawyers would rather avoid burdening their clients with unnecessary costs, i.e., costs that are not going to help try the case if it must be tried, or that would help settle the case, which might mean costs that show the other side that you will be well-prepared for trial. Parties go to mediation precisely to avoid the enormous costs of preparing for trial. As long as they have […]

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 […]