Conflict Resolution

Advanced Problem-Solving Strategies

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About halfway through the new movie Woman in Gold–which tells the story of Maria Altmann’s lengthy legal battle to recover the famous Klimt painting of her aunt from the Austrian government–the parties try to resolve the dispute by mediation. At the mediation, Altmann (played by Helen Mirren) offers to allow the Austrians to keep the painting if they will only acknowledge that it was stolen property (looted from her family by the Nazis), and pay some amount in compensation. It was a framework for negotiations that most mediators would jump at, because if the framework were accepted by the other side, the only thing left to negotiate would have been the amount of compensation. But the Austrian representative refuses even to consider […]

Speaking of peace in the Middle East, I’ve been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu’s recent re-election is that resolution of the issues in the territories is now a long ways off. The reasons for hope lie in recollecting that if anything, Menachem Begin was an even more belligerent character than Netanyahu is today. Begin was reluctant to concede on any issues, whether the status of Jerusalem, or Jewish settlements in Sinai, or withdrawal from […]

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 […]