17th annual
interactive conference

the absolute mediator

Faculty Biographies

Presentations, Seminars & Workshops

Session I: 9:45 am - 11:00 am

Creating Mediation Opportunities With Government Agencies

Ed Davis, Viggo Boserup, & Jeffrey Senger

Jeffrey M. Senger is a faculty member at Harvard Law School's Program on Negotiation and senior counsel in the Office of Dispute Resolution. He has written the ‘Bible’ on Using ADR in the United States Government. Viggo Boserup is a full time professional mediator who will speak about which government agencies use ADR, how you get mediation work within the government and what you need to know to be effective in government mediations. Ed Davis is a full time provider of mediation services who has built his practice working with federal government and private agencies.

Help, We Need a Super-Mediator: Mediation in Collaborative Cases Involving Difficult Clients

Gay G. Cox, Deborah Johnson, Robert J. Matlock, & Patrick Savage

The expansion of collaborative law has been dramatic over the past few years. Decision makers in a wide array of businesses have recognized the value of applying collaborative principles to conflicts of all types. As a result, litigators are educating themselves about the collaborative law “paradigm shift” and mediators are adapting their skills to handle the unique dynamics encountered in the mediation of collaborative cases.

Successfully Mediating Bad Faith and ERISA Claims

Scot Adams, Sharon J. Arkin, Joan Cotkin, Ray Cotkin, Sandy Gage & John Quisenberry

This panel asks the insurance representative, plaintiff and defense lawyers to share what they look for in a mediator and how they undertake mediation. We ask them to disclose how they go about evaluating Bad Faith damage claims for emotional distress, Brandt Attorney’s fees, and Punitive Damages in the light of State Farm v. Campbell . We will discuss issues, other than money, that are important considerations in motivating insurance carriers to resolve these cases. The panel will identify issues that arise under ERISA that mediators can focus on to secure settlements in these cases.

Being Effective in Mediating Residential Real Estate Disputes

Cheryl Lackman Feinberg, Neil Kalin, Robert Shulkin & Fred Trester

The program will give the audience a history of the development of mediation clauses in the California Association of REALTORS® purchase agreement, the interrelationship of the mediation requirement with the attorney fees and arbitration clauses, the reasoning behind the exceptions and exclusions, and a discussion of practical issues and differences revolving around pre-sale disputes, post-sale disputes and disputes concerning failed transactions. There will also be a discussion of implementation issues relating to timing, fees, and involvement of indispensable parties, court decisions and failure of a party to mediate.

Being Effective in Complex Cases

Hon. Eli Chernow, Michael Maddigan, & Deborah Rothman

When complex commercial litigation isn’t yet ripe for mediation, the mediator can nevertheless be of assistance to the parties in suggesting collaborative case and discovery management techniques that will make the case “mediation ready” long before it may be “trial ready.” Join AAA arbitrator, Deborah Rothman, Esq., Discovery Referee, the Hon. Eli Chernow (Ret.), commercial litigator and ABTL Discovery Sub-Committee member Mike Maddigan, Esq. of O’Melveny & Myers and one of the Judges from the Los Angeles Superior Court Pilot Complex Litigation Court to discuss ways in which complex, protracted and stalemated litigation and/or arbitration can be made “mediation ready” using proven collaborative case management and discovery techniques.

The Functional Use of Intuition in Mediation

Eleanor Barr & Gene Moscovitch

This program seeks to enhance the abilities of experienced mediators to refine and successfully draw upon their intuition in conducting traditional mediations. It will focus upon developing one's ability to understand non-verbal cues, appreciate positional realities, and determine whether unorthodox methods need to be employed to achieve resolution. It will distinguish between merely “mediating dangerously” (often at the parties' expense) and, instead, responding creatively to extraordinary circumstances. All Participants will be afforded an opportunity to share experiences where, when all else seems lost, something unusual that they did turned the tide.

Harvard Insight Initiative: Into the Heart of Conflict: The Theory and Practice of Mindfulness, Spirit, and Heart in Mediation (Part 1 of 4)
(Enrollment Limited to 70 SCMA Members)

Ken Cloke & Erica Ariel Fox

It is conventional wisdom now that positional bargaining in the marketplace and brinkmanship in foreign diplomacy are not helpful models for most negotiators. The key to effectiveness is getting beyond combative transactional approaches to the underlying principles of living change and generative dialogue. This kind of approach implies looking beneath the surface, to access a deeper wisdom – in people and in systems – even in situations that seem intractable and entrenched. In this session, we will unpack some core elements of what we do and how we do it to encounter their deeper secrets. Specifically, we will explore an emerging set of tools, methods and practices to enable practitioners to access the underlying intelligence and wisdom in difficult interactions.

Session II: 11:15 am - 12:30 pm

Mediation Opportunities in the UK and European Common Market

Avi Schneebalg

Avi Schneebalg is a master mediator, a teacher of mediation advocacy of international renowned, and thoroughly knowledgeable about opportunities for mediators in the UK and the EU. During the past two years he has presented in London , Paris , Rome , Versailles , Brussels , Bologna , Milan , and Harvard University in Cambridge Massachusetts . No single person is more knowledgeable about mediation opportunities in the UK and European Common Market.

Handling Difficult People and Difficult Situations: A Balint Group Experience

(Enrollment Limited to 15 people)

Craig Lichtman

Mediators are sometimes confronted with situations where the emotional aspects seem to impede progress. Out of frustration, the mediator may regard these situations as intractable, labeling the parties as difficult people. In the field of psychoanalysis, practitioners form study groups to discuss alternative ways of viewing the apparent obstacles to intervention. Michael and Enid Balint, psychoanalysts in London, started to meet with medical practitioners in the 1950’s to discuss psychological aspects of their cases in a study group format to expand their understanding and their repertoire of interventions. This program is intended to offer a ‘Balint Group’ type of experience for mediators.

Reinventing Neutrality

Tara Fass & Diana Mercer

The definition of mediator as the Neutral Third is the cornerstone of traditional mediation training. Nice in theory; impossible in practice. People in conflict are people in despair. Reaching out of their isolation to make a connection to the mediator is a healthy response. To respond neutrally is to miss this opportunity. As mediators it’s up to us to become empathetic guides: invested, but not aligned. Mediation artistry builds a bridge with and to both clients, abandoning neither. Using demos and group discussion participants will learn how to make a meaningful connection to clients without derailing the process.

Being Effective in Mediating Construction Disputes

Michael Bayard, George Calkins & Robert Mann

In commercial real estate/construction disputes, the stakes are higher than in residential cases; there is a mixture of economic/defect issues. This puts special emphasis on the experience and influence of the mediator, who needs to put his/her best foot forward among the rich and the desperate. The presenters will explore finding the theme and moving the lawyers and construction/development executives to a solution, in other words: what to do and what to avoid.  

 What Every ADR Neutral Needs To Know About Patent and Other IP Technology Related Disputes

Cheryl Lee Johnson & Les Weinstein

The growth of technology related disputes and the skyrocketing importance of patents and software copyrights to the economy are a reflection of a major sea change in the dispute climate seen by both the courts and ADR neutrals. It is important for ADR practitioners involved in resolving business disputes to be generally aware of the special and often unique substantive (e.g., defenses; burden of proof; damages etc.) and procedural (special court rules; presumptions, etc.) issues that arise in these matters. This presentation will discuss these unique features and help outline the essential vocabulary pertaining to these matters in a non-technical manner.

Psychological Impediments to Resolution and Techniques to Manage Them

V. Michelle Obradovic

Drawing broadly on research in the field of decision-making, this presentation will explore why mediation advocates and parties often make decisions during the negotiations that are not optimum. The explanation for this phenomenon may be due in part to asymmetric information, and due to the influence of psychological and behavioral factors on their decision-making processes. The presence of these circumstances, thought processes and behaviors can make a mediated settlement agreement less likely to occur. The panelists will discuss a range of mediator intervention techniques that operate to reduce asymmetric information, self-serving bias, over optimism and overconfidence in assisted negotiation, among other barriers.

Harvard Insight Initiative: Into the Heart of Conflict: The Theory and Practice of Mindfulness, Spirit, and Heart in Mediation (Part 2 of 4)
(Enrollment Limited to 70 SCMA Members)

Ken Cloke & Erica Ariel Fox

Session III: 2:00 pm - 3:15 pm

Opportunities in Community Mediation

Jerry Lazar , Najeeba Syeen-Miller, Ratana Kim, & Dana Lofton

Brainstorm with leaders of Southern California DRPA programs on how you can gain experience, sharpen your skills, make invaluable contacts, and perhaps even build a private mediation practice, by volunteering to work on cases involving warring neighbors, landlords/tenants, consumers/merchants, homeowners’ and condo owners’ associations, employers/employees, and other situations where there are relationships to be preserved or healed.

Addressing Loss, Retribution, and Closure in Mediation

Craig Lichtman & Wescoat Sandlin

Mediation of cases that involve death is fraught with emotions of grief and unresolved grief may hamper personal closure and resolution of litigated disputes. I will introduce these issues by showing scenes from the film “The Confession”, in order to facilitate a discussion among the conference participants. I will also present a view of addressing loss during a mediation process by weaving together psychoanalytic principles with ideas from the disciplines of finance and the law.

Insiders Guide to Mediating Medical Malpractice Matters

Sandy Gage, Clyde Lockwood, Nanci McMurray & Shirley Watkins

Gain insight into how litigators and insurance claims representatives prepare for mediation. What criteria do they use in choosing a mediator? How do they deal with the unique issues of medical malpractice relating to: caps in damages; securing doctor’s consent; reporting requirements; “hammer clauses” in insurance policies; selection of experts? Learn how to exploit “timing” of discovery and motions for summary judgment, use risk analysis in arriving at settlements and how to utilize “costs of defense” arguments to settle malpractice cases. Learn when to “sell” impeaching information at mediation. Explore the different considerations of the various parties and attorneys and how they interplay at mediation. Understand “gaming” the mediator, using “coaching” techniques

Being Effective in Mediating Fair Market Rental Rates, Operating Expenses
and other Leasing Disputes

Michael Meyer

Michael Meyer will discuss how to mediate disputes as to FMRR , Operating Expenses and other Lease matters .He is one of the very few lawyers in the United States  who devotes nearly 100% of his time to Lease matters and has been involved  in many FMRR disputes that have gone to Judgment or Award in matters pertaining to FMRR and Operating Expenses .

Mediating Employment Claims From Every Side of the Table

James Adler,Carla Barboza, Toni Jaramilla & Jim Zapp

Join employment lawyer turned mediators (and arbitrator) Carla Barboza and James Adler, along with plaintiffs’ attorney Toni Jaramilla and employers’ attorney James Zapp discovering what works best. An interactive discussion demonstrating how we convene, coach, decide on a joint session, effectively give reality checks in the prosecution and defense rooms, learn closing techniques, and much, much more! Take advantage of this opportunity to learn from more than thirty years of experience in labor and employment conflict resolution!

The Role of Attorneys in Mediation – A Closer Look

Daniel Ben-Zvi, Harry W. R. Chamberlain II, Steven Glickman, & Steven G. Mehta

Attorneys talk and advocate for their clients.  On this panel, attorneys will talk for themselves.  Trial lawyer Steven Glickman, president of the leading trial lawyers association of Los Angeles , and defense counsel Harry Chamberlain II, president of the leading defense lawyers association of southern California , will present their own real views about mediation.  They will face off with experienced mediators Daniel Ben-Zvi and Steven Mehta on the panel.  The audience will also have their turn.  The attorneys will share their likes and gripes of various mediator presentations, styles and techniques.  We will probe into attorney fees, conflicts of interest and the role of attorneys throughout the stages of mediation.

Harvard Insight Initiative: Into the Heart of Conflict: The Theory and Practice of Mindfulness, Spirit, and Heart in Mediation (Part 3 of 4)
(Enrollment Limited to 70 SCMA Members)

Ken Cloke & Erica Ariel Fox

Session IV: 3:30 pm - 4:45 pm

How Mediators are used to Resolve Conflict in Healthcare

Coby Anderson, & Barbara Filner

ADR professionals in healthcare are often asked how to break into the lucrative medical arena that has yet to fully embrace ADR principles. A breakthrough study has provided data that the sources, quantity and most effective training regimens regarding conflict in healthcare are far different from the perceptions of ADR experts. Not surprisingly, the healthcare institutions like Kaiser Permanente are now anxious to utilize this data to fund and create systems that will suit their unique needs. Most importantly for ADR professionals, this method of exploring client perceptions of conflict can open doors into any new field of endeavor for conflict resolvers.

Applying the Science of Persuasion and Influence to the Art of Negotiations

Myer J. Sankary

The best mediators know how to do it! They can tell you what they do, but few understand why it works. They don’t realize that there is a social science that explains why their techniques are so successful. This program will provide you with an innovative framework of why people say yes under the influence of persuasion and you can learn why people will say yes to you - based on the six universal principles of persuasion gleaned from academic research and from applied real world experience. This program is based on the original work of Dr. Robert Cialdini, one of the leading experts in this topic and will be present by Myer J. Sankary, a graduate of the Harvard Law School ’65, who is the only attorney and mediator trained and certified by Dr. Cialdini to teach the Principles of Persuasion workshop.

Handling Difficult Emotions in Divorce Mediation

William A. Eddy

Difficult emotions (particularly intense anger, sadness, and fear) arise in Divorce Mediation. Should we open up these feelings to “work them through”? Or should we ignore these feelings as inappropriate for a legal decision-making? Is there a middle ground? This 1¼-hour session will address several methods for handling difficult emotions in Divorce Mediation, assessing the appropriateness for each method, and ways for the Mediator to avoid getting “emotionally hooked.” Case examples will be discussed, including those with high-conflict personalities. Participants will have the opportunity to engage in a brief role-play scenario, and discussion of the principles presented.

Arbitrating Armed Conflict - Lessons to be Learned

Adir Waldman, John Jay McCauley

In April of 1996 Israel and Lebanon publicly announced an agreement unparalleled in the history of international and military law: the two states would allow the active military conflict between the Israel Defense Forces and the Lebanese terrorist militia Hesbollah to continue, but would bind their soldiers to an explicitly agreed upon set of rules intended to protect civilians. In addition, a special commission, the Israel-Lebanon Monitoring Group (the “ILMG”), would be established to arbitrate complaints regarding violations of the Agreement. After presenting the historical and legal background of this unique arbitration mechanism, which may serve as a model for containing violence and terror in an increasingly unstable world order, we will explore the differences and similarities between this system and commercial mediation and arbitration systems. Not only is the ILMG a fascinating arbitration system in and of itself, but it also offers deeper lessons about the value and function of arbitration and mediation in general, as well as the potential role of arbitrators and mediators and their skills in non-traditional contexts

Field of Dreams: If You Build it, They Will Come

Maurice J. Attie, Len Levy, Eric Stephens, & James Stott

Join us in a community, interactive planning session in which we build Mediation’s Field of Dreams. This is a paradigm shifting panel that will utilize, among other resources, Malcolm Gladwell’s “The Tipping Point” as a blue-print for a future in which mediation will be the automatic first choice dispute resolution mechanism. Imagining the ideal of mediation 25 years hence, we can build back the milestones necessary to arive at such a future. We hope to encourage concerted action among attorney, non-attorney and community mediators, educators and practicing attorneys to build the ADR field we wish our children and our children’s children to experience.

The Winning Team: Co-Mediating with Judges, Attorneys, and Business People:
Lessons Learned with Superior Court Settlement Judge Alexander Williams, III

Fredrick F. Mumm, Greg Stone, Victoria Pynchon, & Hon. Alexander Williams, III

This program will explore the benefits of Courthouse Mandatory Settlement Conferences in which interns from local law schools and dispute resolution programs are included in the settlement “team.” The panel itself will be composed of Superior Court Settlement Judge Alexander Williams , III; attorney-mediator Victoria Pynchon; entertainment litigator Jeffrey Blum, a partner with the law firm of Davis, Wright & Tremaine; a “client” representative from Warner Brothers Pictures, Wayne M. Smith, Esq.; and, former businessman and Straus Institute M.D.R. candidate, Greg Stone.

Harvard Insight Initiative: Into the Heart of Conflict: The Theory and Practice of Mindfulness, Spirit, and Heart in Mediation (Part 4of 4)
(Enrollment Limited to 70 SCMA Members)

Ken Cloke & Erica Ariel Fox