Conflict Resolution

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Mediation

Mediation Styles

May 13, 2011 | by Joe Markowitz | 0 comment

When I meet people attending a mediation for the first time, I’m always interested in finding out what they expect will happen. Often they don’t know much about the process, and sometimes they come in expecting something quite different from what I have in mind. For those people, and even for those who have participated in mediations previously, I sometimes describe various approaches to conducting mediations. I usually have an idea about how I want to proceed, but I try to remain open-minded about what will work. I learned the Pepperdine five stage approach to mediation quite a while back (convening, opening, communicating, negotiating, closing), but that framework doesn’t fully answer some much more basic questions that I think about […]

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Mediation

Neutrality

Apr 12, 2011 | by Joe Markowitz | 0 comment

I will admit that I am not entirely comfortable with the idea of the mediator as a neutral. I prefer to think of the mediator as an advocate for each side in turn. Sometimes I feel that my role is to coach each side into negotiating the best deal they can get. Sometimes I try to persuade each side of the strengths of the other side’s position. And sometimes I act as the advocate for agreement as opposed to the drawbacks of continued conflict. In none of these roles do I feel strictly neutral. I also think parties need not choose a mediator who is strictly neutral in the sense of having no connections to either party, or in terms […]

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Mediation

Mediation Ethics

Feb 01, 2011 | by Joe Markowitz | 4 comments

Let’s say you’re the mediator and the plaintiff’s attorney makes an initial demand of $20 million in response to which the defendant offers $2.5 million. You turn to the plaintiff and ask how he feels about settling his claims, and he walks out of the conference room, saying “Whatever all of you decide is ok with me.”  What do you do? This was the situation in the second episode of the new series Fairly Legal, which involved the mediation of a civil suit by an exonerated prisoner who was wrongfully imprisoned for more than 20 years. Most mediators in that situation would take the plaintiff at his word, especially since he has an attorney to represent his interests, try to […]

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Mediation

Mediator’s Proposals Redux

Dec 02, 2010 | by Joe Markowitz | 2 comments

Being a trial lawyer, a mediator, and most importantly, a Dodgers fan, I can’t help following the newspaper reports of the juicy ongoing divorce litigation between Frank and Jamie McCourt.  The latest news illustrates some of the pitfalls of mediator’s proposals.  I am speculating to some extent as to what is really going on here, but based on this LA Times report, it seems that Frank’s side accepted, but Jamie’s side rejected LA Superior Court Judge Peter Lichtman’s confidential proposal.  Generally, the way mediator’s proposals work, the mediator provides his settlement recommendation to both sides, giving both a time limit to either accept or reject the proposal.  If both sides reject the proposal, neither side is supposed to know whether […]

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Mediation

When Can the Mediator Testify?

Aug 30, 2010 | by Joe Markowitz | 0 comment

If there is a dispute about the contents or the existence of an agreement of the parties following a mediation, is it ever appropriate for the mediator to testify?  The California Second District Court of Appeal, in Radford v. Shehorn, said that such testimony would only be allowed if the parties agreed to it, meaning that it is hard to think of a situation where testimony by the mediator would ever be permissible or useful.  (But see this post by Vickie Pynchon on another (unpublished) case where the mediator was permitted to testify that a written agreement the insurance company was seeking to enforce conformed to what the parties agreed during the mediation.) In the Radford case, there was a […]

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