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 […]

An article in the spring issue of the ABA’s Dispute Resolution magazine (Maurits Barendrect and Christopher Honeyman) sets out some daunting statistics on the overall size of the market for ADR services in this country. The number they throw out is $500 million in billings annually. That sounds like quite a lot, but it includes arbitration as well as mediation. And in comparison to the market for legal services, the ADR market is still minuscule, approximately equal to the annual billings of the 50th largest U.S. law firm. Moreover, the top two commercial providers, the AAA and JAMS, account for more than two thirds of this market. For someone hoping to make a living, or even a partial living, as a […]

At the employment law program mentioned in my previous post, we were honored to hear a talk from Phyllis Cheng, the director of the California Department of Fair Employment and Housing (“DFEH”). Ms. Cheng walked through the process of resolving employment claims in the department (outlined in the flow chart below). For cases not processed by issuing an immediate right to sue notice, note that the department offers numerous opportunities to steer those cases to a negotiated resolution (generally denoted by the smooth round-bordered boxes), as opposed to a judicially or administratively determined outcome (the sharp-edged boxes), and maintains a staff of 11 mediators for the purpose. In all, the number of cases resolved consensually far exceeds the number that […]

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 […]

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 […]