Conflict Resolution

Advanced Problem-Solving Strategies

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Oftentimes, all we need to do to resolve a dispute is arrive at an agreed-upon value for the subject of the dispute–whether that is a lawsuit, or a company, or a piece of property. It therefore behooves the parties to come to mediation armed with as much objective information as they can get that would support the value they are seeking. In the case of property, that might be an appraisal. In the case of a lawsuit, that might be legal authority or jury verdict information. I mediated a case recently where the parties were on the verge of signing a deal, based on a shared understanding of an item’s potential value. In reviewing their file before making this commitment, […]

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, […]

As expected, the new season of Fairly Legal has veered even further away from a realistic portrayal of mediation, to give more attention to the drama of the characters’ personal lives and business ambitions. As far as I can tell from the season opener, mediation is just Kate’s job, in the same way that many TV characters have a job that adds some additional drama to their personal dramas. The changes that have been made in the second season emphasize the characters’ multiple problems even more than last year, which is probably what the show had to do to succeed, so I can’t  really complain about that. I also probably don’t even need to remind people that they shouldn’t expect […]

Everybody’s favorite mediator is back for a second season of Fairly Legal, as I’ve learned from the billboards and bus ads showing Sarah Shahi posing with a set of toy lawyers she is about to knock down like dominoes. I have no idea how this theme (if it is one) is going to play out on the show, but I’m a little concerned that it might feed into the common perception that lawyers are the enemies of mediators and the obstacles to settlement. I don’t think that is the case most of the time. By the time cases get to mediation, the parties’ lawyers are often more anxious than their own clients to get the case resolved. They might be […]

Consider the situation where parties in a formerly close relationship (e.g., friends, business partners, relatives) have seen that relationship threatened by an unpaid debt or some other form of injury. To what extent should a mediated resolution of such a dispute try to repair the relationship as opposed to simply helping the parties obtain the best deal they can negotiate to compensate for the claimed harm?   The legal system cannot solve this kind of problem very well. Courts only decide whether one party is required to pay the money, or not. If a mediation only tries to short circuit the court process by assessing which side is likely to prevail in court, that may not entirely satisfy the parties’ needs […]