Conflict Resolution

Advanced Problem-Solving Strategies

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The California Law Revision Commission has issued its draft recommendations for an amendment to the Evidence Code carving out a new exception to mediation confidentiality. This project has been about four years in the making, and was originally spurred by concern over the California Supreme Court’s decision in the Cassel case, which excluded evidence in support of a subsequent malpractice case, of alleged attorney misconduct in inducing their clients to settle a case in mediation. The Commission’s report, which runs to 158 pages, reflects a thorough process, but one that is probably going to be greeted with fear in the mediation community. Many mediators support an “absolute” exclusion of any evidence of statements made by anyone in the course of mediation, […]

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn’t afford it. Therefore I didn’t see much point in talking about what was likely […]

A mediator I know was explaining his system of taking and cataloging notes from his mediation sessions, to help him learn what was working and not working. He writes down phrases he has used that seem particularly effective, and keeps them on note cards. And he sometimes thumbs through his stack of cards during subsequent mediations to see if he can find something useful. According to this mediator, impasse does not exist. Instead, when parties get stuck, he prefers to tell them only that the dispute probably will not settle that day, preserving the hope that it will settle at a later time when the parties are ready. I have also found that the concept of impasse is not particularly […]

Is it possible for a mediator to show too much empathy? At a program SCMA put on last night which included a mock employment mediation, reaction in the room was divided in response to the demonstrator’s expressions of understanding of the employee’s grievances. Although a few in the audience felt that the mediator could have gone even further in commiserating with the employee’s feelings that the employer had not adequately accommodated her need for religious observances in the workplace, a fair number of others thought it was wrong for the mediator to display any sort of solidarity with the employee’s complaints. Those who objected to the mediator’s expressions of empathy thought this approach could threaten the mediator’s neutrality. They also […]

Assuming you have an idea of the qualities you are looking for in a mediator, how do you go about locating a mediator who fits the bill?  Your telephone and computer can lead you to much more comprehensive sources than will be found on the list that your colleague down the hall keeps in his top drawer. You can always call one of the commercial provider organizations, and they will be happy to send you a slate of resumes of the members of the panel. You can Google various search terms that could direct you to the type of mediator you are looking for. If you want something more organized, there are a number of online directories available. Those who […]