Workshop descriptions

24th Annual Southern California Mediation Association Conference

Co–Sponsored by:

Pepperdine University School of Law; Straus Institute for Dispute Resolution

The Working Mediator: Improving the Culture of Conflict

Keynote Speaker and Recipient of the 2012 Cloke-Millen Peacemaker of the Year Award, Kenneth R. Feinberg, Esq. will speak on the topic “Unconventional Responses to Unique Catastrophes: Tailoring the Resolution to Meet the Challenge”

Newsweek Magazine described our keynote speaker in this way, “America’s go-to guy in calculating life’s worth. When bad things happen and damages are due, it has frequently fallen on Washington lawyer Kenneth Feinberg to decide how much cash goes to whom – thus his unlikely career as America’s King Solomon…The wiry, balding Feinberg, an increasingly familiar face on television post-disaster, has tackled numerous baby-splitting dilemmas as the government-appointed special master with authority to settle million-dollar claims arising from the 9/11 terrorist attacks, the 2007 Virginia Tech massacre, and the 2010 BP oil spill, among other catastrophes. As he explains in his new book Who Gets What, his task is to maximize prompt, fair payouts and minimize dilatory litigation.” (June 25, 2012, Newsweek Magazine)

SCMA Fall Conference Workshop Descriptions

“Nuts and Bolts” Parts I and II meet the Los Angeles Superior Court training prerequisite for application and appointment to its ADR Mediation Panel.

“Nuts and Bolts” Part I provides a fundamental understanding of the court system and civil processes, with a focus on how they relate to mediation. There is also an exemplar component of mediating Landlord‑Tenant disputes. Issues for the non-lawyer mediator will be emphasized. Chaired by Dr. Jack R. Goetz, Esq., Academic Lead, CSUN Program in Mediation and Conflict Resolution, with panelists Maurice J. Attie, Esq., 37 years’ experience as an attorney and twelve as a full‑time neutral, Phyllis Pollack, Esq., Past President of the SCMA who has mediated over 1000 litigated cases, and Scott Berman, current SCMA Board member who has 30 years’ expertise in real estate disputes.

This panel presentation examines the effect the jurisdictional, statutory and procedural framework has on our mediations. Dr. Goetz will begin by walking us through court jurisdictional limits and the sticky problems they present for mediators of litigated cases. Maurice Attie, will follow by focusing on each phase of the civil case, with particular emphasis on how those phases relate to the mediation process. He will then engage the audience in an interactive discussion about issues unique to non-lawyer mediator. Phyllis Pollack will share her expertise on the most important statutes affecting the settlement agreement and the various factors mediators must consider in helping counsel schedule their mediation at the appropriate time in the civil case process. Part I concludes with Scott Berman giving current insight to mediating Landlord‑Tenant issues that arise under California Civil Code §1950.5.

“Nuts and Bolts” Part II focuses on Confidentiality, Neutrality and Ethics. Issues for the non-lawyer mediator will be emphasized. Chaired by Dr. Jack R. Goetz, Esq., Academic Lead, CSUN Program in Mediation and Conflict Resolution, with panelists Jan F. Schau, Esq., Past President of the SCMA, a veteran of 1,000 mediations and a current member of the International Academy of Mediators.

Dr. Goetz will look at the California Rules of Court and the California Evidence Code and how they affect litigated case mediations. Jan Schau will discuss some of the more complex and nuanced issues she has seen within that statutory and regulatory scheme and how the mediator can meet and overcome the challenges within it.

Making a Living in ADR – How to Build a Practice by Understanding Your Clients

You’ve studied, trained, experimented and volunteered. Now you want to make your living as a mediator. Is your market ready for you and you for it? How long will it take to make as much money mediating as you made at your old job? What resources are available to aid you in your desire to make mediation a vibrant and successful career? This panel of experienced mediators will share the experiences that led to their unique successes in ADR. The panelists are Eleanor Barr, mediator with PMA Dispute Resolution, who has been mediating litigated matters in Southern California for the last 13 years. Pioneer Jeff Krivis, author of How to Make Money as a Mediator, who has spent the last 20 years mediating complex cases throughout California, and Victoria Pynchon, author of Success as a Mediator for Dummies, who sits on the ADR Services, Inc. and American Arbitration Association commercial mediation and arbitration panels, but whose focus is now on her two-year old business, She Negotiates Consulting and Training.

Coping with Cassel – Enforcing Caucus Only Agreements in Mediations – Kyle Kveton, Esq. Robie & Matthai, Caroline Vincent, Esq., Mediator/Arbitrator/Neutral Evaluator, ADR Services, Inc., Robert Wrede, Esq., Mediator/Arbitrator/Neutral Evaluator, ADR Services, Inc.

This panel focuses on mediation practice tips specifically tailored to the issue of enforceability of caucus only agreements after the 2011 California Supreme Court case Cassel v. Superior Court. Under the holding in Cassel, the default confidentiality provisions of the California Evidence Code prevent admissibility of agreements and communications made among mediation participants, such as those between multiple plaintiffs and defendants on one side of the dispute, or with lienholders and insurers. Specific clauses complying with the technical requirements of the Evidence Code will be covered. Presenter Kyle Kveton wrote the amicus curiae appellate brief for the ASCDC on behalf of Real Parties in Interest [Casselman law firm] in the Cassel case before the Supreme Court. Caroline Vincent has drafted clauses that can be used under Evid. Code Sections 1123 and 1122 to admit caucus only communications and enforce caucus only agreements. Robert Wrede is the Chair of the Beverly Hills Bar Association Conflict Resolution Section.

Let’s Make A Deal — Strategies for Resolving Personal Injury Claims – Robert M. Tessier and Floyd J. Siegal

Mediating the litigated personal injury case is the bread and butter for many full-time mediators. This session offers insights particular to tort cases, and focuses primarily on the effective use of private caucuses. Legal and other issues particular to these type of cases will be explored, including the hot button topic of the use of deception in mediation. The panel will discuss specific negotiating strategies and techniques to break impasse, narrow the gap and and close the deal. The panelists are Robert M. Tessier, a full-time mediator with Judicate West, who mediates tort cases of all types and was recognized by the Daily Journal in 2011 as one of the Top 50 Neutrals in California; and Floyd J. Siegal, a full-time mediator with offices in Encino, whose practice is devoted to resolving disputes involving claims of personal injury, professional liability, employment liability and governmental liability, as well as sophisticated business and real property disputes.

Technology, ODR and Peacebuilding – Maria Simpson, Colin Rule (via Skype) and John Haas

Technology now plays a key role in conflict resolution, whether that term refers to the formal process of mediation conducted online (ODR) or to the use of social media to promote peacebuilding. This session demonstrates two, real-time uses of technology to assist in dispute resolution and address the question, “How can technology empower practitioners of conflict resolution?”

Colin Rule, CEO at Modria, Inc. and designer of the PayPal Court, will demonstrate cutting edge, online dispute resolution tools developed by mediators for mediators, including how to open password-protected, confidential rooms that offer parties the ability to share documents, caucus, communicate both asynchronously and synchronously, and use secure tools like screen sharing, chat, audio and video conferencing. Role plays will show what kinds of cases can benefit most from technology and suggest best practices for introducing technology to disputants.

John Haas, Director of the Global Consortium for Sustainable Peace, will demonstrate in real time his partnership with Lucy Nusseibeh, director and founder of Middle East Nonviolence and Democracy (MEND), which promotes active nonviolence and encourages alternatives to violence among youth and adults throughout Palestine by linking people across the globe. Working together, Haas and Nusseibeh have brought together in “real time” leading conflict resolution and peace practitioners “operating on the ground in zones of conflict” in such locations as the Palestinian Territories, Israel, Egypt, Syria, Sudan, and others.

How Attorneys Succeed and Fail in Mediation – Daniel Ben-Zvi, Joan Kessler, Judge Robert Thomas, Ret., and Myer J. Sankary

Mediator Daniel Ben-Zvi moderates a session where experienced mediators voice candid reactions to attorneys and their strategies. The mediators will share opinions about attorneys’ tactics — what works and what fails to further their clients’ goals. When a mediation concludes, no one typically hears the mediator’s reactions about the attorneys and the strategies employed. Now, in a frank panel discussion, mediators will reveal their reactions, insights and methods of dealing with various moves by legal counsel. With audience participation welcome, this session will provide mediators an opportunity to learn, grow, question and respond.

Landlord Tenant Cases – Tips From the Trenches – Kere Tickner, Lanetta D. W. Rinehart, Robert Makley, and Alexander Polsky

Emotionally charged Landlord-Tenant disputes are among the most challenging cases for mediators. When counsel arrive ready for argument and posturing, instead of resolution, these cases quickly erupt into over-heated, disorganized time wasters. Simmering tenant resentments crash headlong into land owner frustration, counsel adopt the extreme positions of their clients – and there you have it – a perfect storm of irrational behavior pours right into your mediation. So what’s a mediator to do to avoid these scenarios ahead of time, and how do you defuse them when they inevitably boil over during the mediation process ? This workshop will help you find the approaches to quickly focus the energy of the parties before and during mediation and defuse tensions. Attorneys Kere Tickner and Lanetta Rinehart of Bremer, Whyte, Brown & O’Meara, LLP, partners who specialize in the representation of owners and property management companies, attorney Bob Makley, a well-known tenant-side plaintiff’s attorney who handles in habitability claims, and well regarded mediator Alex Polsky combine to provide you with direction, suggestions and real world answers for working ahead of time with counsel to prepare for, and ultimately resolve, even the most impossibly contentious, high exposure, multi-party landlord tenant matters.

Non-Monetary Considerations in Resolving Employment Disputes –
It’s Not Just About the Money – Roxanne Davis (Davis Gavsie & Hakim, LLP), Steve Paul (Alternative Resolution Centers), Sheila Sparks (VP & Senior Employment Counsel, Warner Bros. Entertainment), David Wimmer (Swerdlow Florence Sanchez Swerdlow & Wimmer)

Employment disputes involve highly-emotional issues on both sides of the table, with unique dynamics, interests, concerns, and settlement considerations that go beyond reaching a monetary agreement. This panel of highly experienced employment practitioners will share in-depth strategies in mediation for addressing the competing emotions and interests of the employer and employee that are essential to reaching resolution, and discuss common non-monetary settlement terms that can either facilitate reaching agreement or create an added impediment that requires further work at mediation. You will hear perspectives from in-house Senior Employment Counsel Sheila Sparks (Warner Bros. Entertainment), Roxanne Davis, who has successfully represented employees for over 15 years, prominent defense counsel David Wimmer, and moderated by Steve Paul, who is a panel mediator with ARC (Alternative Resolution Centers) and has resolved hundreds of employment disputes.

Website Development and Our Online Future

Join Jim Melamed, Founder and CEO of Mediate.com, for a discussion of professional web site development. Jim will discuss unique qualities of the online ADR marketplace, the essential components of a quality web site, search engine optimization, blogging, social media, geographically focused marketing and professional newsletters. Join Jim to hear his online development suggestions and to share and discuss your own. Additionally, SCMA Conference attendees will be offered a unique opportunity to purchase Mediate.com packages at a reduced rate for SCMA members throughout the months of November and December 2012. Photographer Sammy Davis will be on hand if you need a web ready photograph or to update an existing one.

The State of Community Mediation – Jim Lingl, Malcolm White and Justin R. Corbett NAFCM (National Association for Community Mediators)

Community mediation is a diverse network of programs helping address all manner of conflicts within their local communities. Comprised of 400 local programs, 1,300 professional staff members, 25,000 volunteer mediators, and serving nearly one million citizens each year, the community mediation network is a vast, active component of the ADR landscape. This session will examine some of the key findings from NAFCM’s recent comprehensive survey of community mediation. Participants will learn about the breadth of services (30+) and mediation contexts (100+) offered through local programs; the major and emerging trends; and the challenges confronting its continued growth and embedded sustainability.

The Crisis in the Courts – Moderator, Joe Markowitz with panelists, Alan Wiener and Judge James R. Dunn, and Anna Marie Viega

The state courts are coping with a severe budget shortfall, necessitating closing of courtrooms, reducing staff and reassigning trial judges. This panel will discuss the challenges, and the potential opportunities presented for ADR practitioners as a result of this crisis. Questions to be considered will include how these funding cutbacks will impact the court ADR programs specifically, and whether delays in the courts’ ability to process cases will also slow down the ADR process, or drive more litigants to alternative forms of dispute resolution. The panelists should also have time to address more nuts and bolts questions about the rules and operations of the state court ADR panels. The panel will be moderated by Joe Markowitz, a member of the court panel and the court’s ADR committee, and an SCMA board member, and will include Alan Wiener, representing the General Counsel’s office of the Judicial Council of California; as well as a judge and administrator from Los Angeles Superior Court.

The Elephant in the Family Room – Finding the Balance Between the Importance of the Law and Interest-based Negotiation in Family Law Mediation and Collaborative Divorce – Jeffrey Jacobson, Esq. Jill Cohen, Esq. and Mary Lund, Ph.d

Clients in family law mediation and collaborative divorce should be informed about what the law would provide in their case. But knowing what the law provides often locks parties into positions and makes it difficult to negotiate based on interests, especially if the law strongly favors one party over the other. We will explore these challenges and offers techniques to deal with the inherent tension between the law and interest-based negotiation in family law matters.

4 – AIM Advanced Track Workshops – Lee Jay Berman, Ken Cloke, Woody Mosten, Jim Melamed View Advanced Track Workshop page for details

All Workshops receive 1.25 – 1.50 MCLE Credits