Conflict Resolution

Advanced Problem-Solving Strategies

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At the Orange County Mediation Conference yesterday, one of the lunchtime speakers, Judge Nakamura, who is chair of the ADR committee of the Orange County Superior Court, mentioned that the court’s existing mediation program has been poorly utilized. He seemed puzzled by this problem, since the panel of experienced court-connected mediators has a high success rate in resolving cases. And since these mediators agreed to charge only $150/hour for court-referred cases, their services are a relative bargain as well. Judge Nakamura’s proposed solution is a pilot program in Orange County for mandatory mediation of civil cases. He believes this would take legislation to implement, and he urged those attending to contact their representatives in Sacramento to promote this idea. Most users […]

I will be speaking as part of a panel, along with Mary Culbert and Phyllis Pollack, on Saturday, February 28, 2015, at 10:00 a.m., at Loyola Law School. The topic is mediation confidentiality. It’s a timely subject, because recent cases have raised questions about whether the broad protections for mediation confidentiality in California, can still be relied upon. In particular, many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined “due process” exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception […]

Someone posted a question on an online forum about a divorce agreement reached after two days of mediation. The questioner’s ex-wife wanted to set the agreement aside because some stock options assigned to the husband in the settlement agreement had subsequently skyrocketed in value. The husband was looking for some ammunition that would allow him to retain the full value of these assets. (Almost the exact same situation can be found in the recent California Court of Appeal case of Lappe v. Lappe, No. B255704 (2d Dist. Dec. 19, 2014). In that case, the wife was seeking discovery of financial statements provided by the husband during the mediation, for the purpose of attempting to set aside the mediated property settlement […]

I will be a guest on the Doug Noll radio show on Thursday, February 19, 2015. The program is broadcast over the internet and its website can be found here. In case you miss the program Thursday night, however, I believe it will soon be available on the website. I expect to be talking about the business of mediation, how mediation may be transforming the civil justice system, and whatever else comes to mind. I’m looking forward to the opportunity. UPDATE (3/5/15): It appears the audio file was erased by the web radio station, so my interview is now lost to posterity. Doug promises that we will do another program soon however.

A recent artical in the ABA Journal  on movements to license legal technicians to perform limited legal services cited a Bar Foundation study showing that most people encountering what the study called “civil justice situations” either handled the situation themselves, did nothing about it, or enlisted the help of friends and family. Only about 22% sought the assistance of people outside their social network. Naturally the ABA article viewed this situation as a potential opportunity for the legal profession to meet unmet legal needs, while questioning whether opening up opportunities for paralegals or other non-lawyers to serve these needs should be allowed. To me, however, data like that found in this study suggests that the traditional justice system is either […]