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Mediators find more tools through Neuroscience

Phyllis Pollack.

Mediators and other practitioners of alternative dispute resolution are using information gleaned from the research of world-class neuroscientists to calm emotions and help mediations resolve more easily. With the advent of functional magnetic resonance imaging and the growing interest in brain mapping, neuroscientists and those trained by them are teaching thousands of mediators how to ease clients through a conflict-ridden process.

While the layperson may believe we make decisions with our rational mind, most if not all decisions are made in the emotional sections of our brain. Neuroscientist Antonio Damasio showed that someone who has had damage to the amygdala, a brain region that performs a major role in emotional reactions, is incapable of making even the simplest decisions.

And emotions are contagious. “When you have a group of humans together, you have a neuroscience problem,” says Paul Zak, director of the Center for Neuroeconomic Studies, who has popularized the idea of oxytocin as the “trust molecule” via his books and a 2011 TED Talk, which has gained more than 1.3 million views. Zak began speaking to and teaching mediators five years ago.

“Mediation and law are ripe for social neuroscience in particular,” Zak says. “We’ve made great advances in the field in the last 10 years.”

Through role-play, Zak has taught mediators how to boost the oxytocin of their clients. The chemical is released in less than a second after stimulus and produces an effect similar to a cocaine high. “When you increase oxytocin,” he says, “you make [clients] more amenable to you and make it easier to persuade them. We’ve shown that oxytocin will make people tangibly care about complete strangers.”

He has even experimented on mediators. He showed 26 mediators a 100-second video about a child facing terminal cancer. The mediators had an average increase in oxytocin of 4 percent; the older the mediator, the greater the increase. And those who were stressed before viewing the video felt more distressed, as measured by the stress hormone ACTH, meaning that mediators bring their own baggage into the mediation room—and they need to be mindful of that.

The interest among mediators in neuroscience has taken off on the West Coast and is spreading. Pauline Tesler, director of the Integrative Law Institute, has trained some 1,500 to 2,000 lawyers and neutrals around the world, enticing them with programs called “Neuroliteracy 101″ and “Law and the Brain.”

“The less we know about the emotional mind, the more we are victim to it and helpless,” Tesler says.

MAINLY EMOTIONAL

“I always thought people were rational and logical,” says Phyllis Pollack, a Los Angeles mediator who specializes in so-called lemon law cases. “Now that I’ve studied some neuroscience, I’ve learned decisions are 99 percent emotional and 1 percent logical.”

She has incorporated these findings into her practice: “There is a chemical for humor, so I crack jokes to get those endorphins firing.”

Richard Lord, co-chair of the Mediation Committee of the ABA Section of Dispute Resolution, handles medical-malpractice mediations, which are often highly charged. “I tend to have to wrestle with the emotional complexities of the claim,” says Lord of Upchurch Watson White & Max, a mediation firm in Maitland, Florida. “Brain science has given us a framework to understand what’s happening in mediation and why.”

And some mediators have taken the practice further, learning how those who have experienced trauma act and react in mediation, which many perceive as a new trauma. “We know people experience litigation as traumatic,” says San Francisco mediator Elizabeth Bader. “And those individuals who have suffered previous trauma experience higher levels of the flight response, which is largely beyond cognitive control. So there is not a one-size-fits-all approach that works with all clients. We are really in the Stone Age when it comes to telling the difference between different types of people and their needs.”

Bader has developed what she calls “gentle modalities” for bringing people’s stress response down. She uses mirroring, for example, to calm clients by reflecting back a client’s emotional state. Some practitioners even mimic clients’ movements, such as picking up a coffee cup. “Mirroring,” she notes, “creates trust, and you can slowly start to move them out of a highly activated state.”

In one mediation, Bader let a client upset by a settlement offer talk for 40 minutes about something that was completely irrelevant to the mediation. “We had a nice chat. I moved my chair closer to his. And he relaxed—all because I didn’t interrupt him and let him, in colloquial terms, blow off steam.”

It also showed the client that Bader respected him. “Respect seems to be the penicillin of the psychological world,” she says. “It’s not so much what you say, but what you do.”

Neuroscientists have also learned that the brains of individuals experiencing the same event react differently if one party feels their self-esteem is under attack. Bader notes that few clients fess up to trauma or low self-esteem, so mediators have to be especially adept at reading clients’ subtle cues.

Advocates of neuroscience-directed mediation such as Bader and Tesler are hopeful that it can revolutionize the practice of settling cases.

Says Bader: “We are trying to re-establish the human community element in something where people may not feel any connection at all.”

This article originally appeared in the November 2015 issue of the ABA Journal with this headline: “Brain Gain: Mediators find more tools through neuroscience.”  

 

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Mediations Are Supposed To Be Confidential…But Are They Really?

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While honored in theory, mediation confidentiality may not be so in reality!

Introduction

Either as a participant in a mediation or as the mediator, we have all learned the cardinal rule that mediations are confidential both in terms of the statements and other communications made during the mediation and the information the mediator keeps to herself, not sharing it with the other parties. Many times a mediator has analogized mediation confidentiality to the television ad, “What happens in Vegas, stays in Vegas” to explain the sacrosanct nature of mediation confidentiality.

But, are mediations really confidential? While in theory, they are supposed to be, in court proceedings, they are not always so. Although a review of both federal and state statutes and case law indicates that mediation confidentiality is to be strictly construed and applied, in practice, this does not always occur.

California statutes and case law

California Evidence Code sections 1115-1128, inclusive, govern not only mediation but also “mediation consultations” (“…a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining a mediator.”).

The core rule is set out in Evidence Code section 1119 which provides three different protections, all of which are to occur “”¦ for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation.” Subsection (a) provides that “no evidence, or anything said or any admission”¦” (i.e., oral communications) is admissible or discoverable while subsection (b) provides that “…no writing” is admissible or discoverable. Subsection (c) though is much broader by providing that “”¦ all communications, negotiations or settlement discussions by and between the participants in the course of mediation or a mediation consultation shall remain confidential.” Thus, by this section alone, not only are oral and written communications inadmissible and not discoverable, they are also confidential.

Unless waived, this confidentiality lasts forever.   Section 1126 of the Evidence Code provides that inadmissibility and confidentiality remain “”¦ to the same extent after the mediation ends.” No time limit is given.   To the extent that a “”¦ reference is made to mediation during a subsequent trial…” it shall be deemed an irregularity in the proceedings and a ground for a new trial under Code of Civil Procedure Section 657. If the reference is made during a noncriminal proceeding, it will be grounds to vacate or modify the decision in whole or in part.   (Id.)

To waive mediation confidentiality, all parties- both the participants and the mediator- must do so orally or in writing. (Evidence Code sections 1122 and 1124.) And, to have any settlement agreement admitted into evidence, it must contain the “magic words” that it is “admissible, or subject to disclosure” or “enforceable or binding” or “words to that effect.” (Evidence Code Section 1123.)

The California Supreme Court has broadly interpreted these statutes to the point of being a “near categorical prohibition against judicially crafted exceptions to mediation confidentiality.” (Amis v Greenberg Traurig, LLP, California Court of Appeal, Second Appellate District, (Case No. B248447, issued March 18, 2015) slip opinion at 2.) Starting with Foxgate Homeowners’ Association v Bramalea California, Inc. (2001) 26 Cal. 4th 1, 108 Cal. Rptr. 2d 642, the Court held that mediation confidentiality precluded a party from seeking sanctions against opposing counsel on the grounds that the latter did not attend the mediation in good faith thereby causing the moving party to incur approximately $24,000 in mediator and expert fees. Ruling that an exception to mediation confidentiality cannot be created to punish bad faith participation in mediation, the Supreme Court stated:

We do not agree with the Court of Appeal that there is any need for judicial construction of sections 1119 and 1121 or that a judicially crafted exception to the confidentiality of mediation they mandate is necessary either to carry out the purpose for which they were enacted or to avoid an absurd result. The statutes are clear.  (Id. at 652-3.)

Three years later in Rojas v Superior Court (2004) 33 Cal. 4th 407, 15 Cal. Rptr. 643, the   Court once again refused to allow plaintiffs to obtain evidence during discovery that had been “”¦ prepared for the purpose of, in the course of, or pursuant to, a mediation”¦” even though the plaintiffs had no other means of obtaining the crucial evidence. Again, the Court refused to create a judicially crafted exception for “good cause” to mediation confidentiality, noting that there is no “absurd result” to be avoided here. (Id. at 15 Cal. Rptr. at 655-656.)

In Fair v Bakhtiari  (2006) 40 Cal. 4th 189, 51 Cal. Rptr. 3d 871, the Court again held that mediation confidentiality precluded the admission of a memorandum of understanding in a motion to enforce the settlement memorandum  because it did not contain the “magic words” of being binding, enforceable, admissible or words to that effect as required in Evidence Code Section 1123.

In Simmons v Ghaderi (2008) 44 Cal. 4th 570, 80 Cal. Rptr. 3d 83, the Court again strictly applied mediation confidentiality holding that even though the defendant both in discovery responses and in her own motion for summary adjudication had discussed what had occurred during the mediation, her motion to preclude evidence about the mediation on the eve of trial (and fifteen months after the mediation) was timely. The defendant had not waived mediation confidentiality by waiting until the eve of trial to first assert it.

Finally, in Cassel v Superior Court (2011) 51 Cal. 4th 113, 119 Cal. Rptr. 3d 437 the Court strictly enforced mediation confidentiality in a professional negligence action (i.e., legal malpractice) to preclude evidence of all discussions that occurred both in strategy sessions between plaintiff and counsel just prior to the mediation, and during the mediation both when the mediator was present and not present. As in its prior cases, the Supreme Court once again iterated:

“¦judicial constructions, and judicially crafted exceptions, are permitted only where due process is implicated, or where literal construction would produce absurd results, thus clearly violating the Legislature’s presumed intent. Otherwise, the mediation confidentiality statutes must be applied in strict accordance with their plain terms. Where competing policy concerns are present, it is for the Legislature to resolve them. (Simmons, supra,44 Cal.4th at 582-583;Foxgate, supra, at 14-17.) (Id. at 124.)

The California appellate courts have, likewise, strictly enforced mediation confidentiality.   InEisendrath v Superior Court (2003) 109 Cal. App. 4th 351, 134 Cal. Rptr.2d 716 mediation confidentiality was invoked to preclude the use of statements that allegedly were inconsistent with those made during mediation. In Doe 1 v Superior Court (2005) 132 Cal. App. 4th 1160, 34 Cal. Rptr. 3d 248, mediation confidentiality was applied to preclude the use of written statements demonstrating criminal conduct.   In Wimsatt v Superior Court (2007) 152 Cal. App. 4th 125, 61 Cal. Rptr. 3d 200, mediation confidentiality precluded the use of direct evidence in a legal malpractice claim. Most recently in Amis v Greenberg Traurig, LLP , Court of Appeal, Second Appellate District, Case No. B248447 (March 18, 2015), mediation confidentiality was invoked to preclude even the use of indirect or inferential evidence in a legal malpractice action.   However, in  Lappe v  Superior Court of Los Angeles County (Murray Lappe, Real Party In Interest) ( 2014), 232 Cal. App.4th 774, 181 Cal. Rptr. 3d. 510 the appellate court held that mediation confidentiality would not shield     financial disclosure statements submitted during a marital settlement mediation since California Family Code sections 2100 et. seq. impose an independent, discrete duty to make “full and accurate disclosure of all assets and liabilities” . (The California Supreme Court   denied review.)

The only conclusion that one may reach from the above, is that, at least in California, mediation confidentiality is to be strictly applied and broadly construed.

Other States

With respect to other states, every state in the union has one or more statutes mandating mediation confidentiality; some more expansive than others. (See, California Law Review Commission Study, Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct–K-402, Memorandum 2014-35 (August 28, 2014) for an extensive   discussion and exhibit listing most states’ statutes, and Memorandum 2014-24 (June 6, 2014) discussing the Uniform Mediation Act adopted in 11 states and the District of Columbia. Other Memoranda discuss the mediation confidentiality statutes of the remaining states.)

Federal statutes and case law

In 1988, Congress enacted the Alternative Dispute Resolution Act authorizing arbitrations in federal cases and then amended it in 1998 to include alternative dispute resolution processes in general.  28 USC § § 651-658 (2012). (Public Law 105-315, 112 Stat 2993 (October 30, 1998).) Section 652(d) specifically states that, “”¦ each district court shall, by local rule, provide for confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications.”

To accomplish this goal, the federal courts have adopted local rules mandating mediation confidentiality. For example, the United States District Court for the Central District of California enacted Local Rule 16-15 setting out the policy of the court re: settlement and ADR. Local Rule 16-15.8 provides that all mediations conducted by a panel mediator are confidential. Its definition of “confidential information” is seemingly more explicit if not broader than California’s.   Not only are written and oral communication occurring “”¦for the purpose of, in the course of or pursuant to the mediation deemed confidential information.”, but, in addition, “… anything that happened or was said relating to the subject matter of the case in mediation, any position taken, and any view of the merits of the case expressed by any participant in connection with any mediation”¦” shall also be deemed “confidential information.” The court iterates this in paragraph 9 of its General Order 11-10 (August 15, 2011). Similarly, the Ninth Circuit Court of Appeals mandates mediation confidentiality in its Circuit Rule 33-1.

In those cases invoking the diversity jurisdiction of the court (28 U. S. C. §1332 (2012)), a U.S. District Court Judge may well apply the state’s statutes pertaining to mediation confidentiality pursuant to Federal Rules of Evidence Rule 501 which, in part, provides that the state’s law on privileges shall apply “”¦in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision.” See, for example the unpublished decision of Benesch v Green, 2009 WL 4885215 Case No. C-07-3784 EDL (N.D. Cal., Dec 17,2009) in which the district judge relied wholly on California statutory and case law in ruling on mediation confidentiality.

However, in those cases in which the federal question jurisdiction of the court (28 U.S. C. §1331(2012)) has been invoked (with or without state law claims) or where the issue is one of procedure, then a federal court may or may not apply a common law mediation privilege. In  Babasa v LensCrafters Inc., 498 F.3d 972 (9th Cir. 2007), the court ignored mediation confidentiality in deciding whether removal jurisdiction had been properly invoked, noting that, as the issue was whether diversity jurisdiction existed – a federal procedural issue – federal law, not state law applied.

Yet, in Wilcox et al v. Arpaio et al, 753 F. 3d 872 (9th Cir. 2014), the Ninth Circuit Court of Appeals recognized that a federal common law mediation confidentiality privilege exists but side-stepped the issue of applying it by arguing that the parties waived it as both sides argued only the application of Arizona’s mediation privilege laws and did not reference this common law privilege. Further the Ninth Circuit noted that in the matter before it, the same evidence related to both federal and state law claims. As a result, federal common law on mediation confidentiality and not state law, would govern.

Presently pending in the Ninth Circuit is another case on mediation confidentiality. In Craig Milhouse and Pamela Milhouse v Travelers Commercial Insurance Company, 982 F.Supp 2d 1088 (C.D. Cal 2013), plaintiffs sued their insurer for breach of contract and bad faith following the latter’s alleged delay in paying plaintiffs for the total loss of their home and its contents stemming from a fire. Prior to instituting suit in state court, the parties attended mediation; the matter did not settle. Plaintiffs sued in state court; defendant removed to federal court. During the trial, counsel for the insurer questioned witnesses about what had occurred during the mediation. The trial court allowed the evidence to be introduced. Citing prejudicial error, plaintiffs filed a motion for new trial. In its order denying plaintiffs’ motion, the district court judge held both that plaintiffs’ counsel had waived mediation confidentiality and, even if  not waived, “due process” demanded that the insurer be allowed to put on evidence that it had not acted in bad faith;

. . . Due process demanded that the Court allow the jury to hear the testimony regarding the parties’ mediation statements.

The Milhouses argued extensively at trial that Travelers, “unreasonably or without proper cause, failed to pay or delayed payment of policy benefits.” (Citation omitted) More specifically, the Milhouses contended that Travelers acted in bad faith by refusing to settle their claims.

* * *

For the Milhouses, the case was one about a despicable insurance company that had a policy of not fairly and reasonably cooperating with its insureds to settle their claims after a tragic loss. They now argue the Court erred by allowing the jury to hear the parties’ mediation statements. The Milhouses are wrong. Travelers needed to present the parties’ mediation statements to provide a complete defense of its actions and to avoid paying millions of dollars in bad faith and punitive damages for wrongfully refusing to settle the Milhouses’ claim.

“¦ It was entirely proper for Travelers to present the parties’ mediation statements to the jury. The evidence presented at trial clearly demonstrated that Travelers did not settle the Milhouses’ claim because of the positions that were taken during and after the mediation by the Milhouses and their attorney. The jury therefore needed to hear all about what happened during and after the mediation so it could determine whether Travelers did in fact act unreasonably, maliciously, fraudulently, or oppressively by refusing to settle the Milhouses’ claim. To exclude this crucial evidence would have been to deny Travelers’ of its due process right to present a defense. See Cassel v Superior Court, 51 Cal. 4th. 113,119 (2011) (“We must apply the plain terms of the mediation confidentiality statutes to the facts of this caseunless such a result would violate due process, or would lead to absurd results that clearly undermine the statutory purpose.”) (Emphasis added.)”¦.”

Id. at 1108-1109.

Seemingly, the trial court “judicially crafted” a due process exception to mediation confidentiality.

Plaintiffs have appealed arguing that as this matter involved state law claims only, pursuant to Federal Rules of Evidence Rule 501, California statutory and case law must be followed. In contrast, the insurer has cross appealed arguing, among other things, that this matter is governed by Federal Rules of Evidence Rule 408 permitting evidence of settlement discussions to be admitted for reasons not directly relating to liability, as for example, “”¦ negating a contention of undue delay.”  (Fed. R. Evid. 408(b).) (See, Ninth Circuit Court of Appeals Case Nos. 13-56959 and 13-57029.)

As of this writing, the matter has been fully briefed and awaits oral argument and/or decision.

Agreements

In addition, the parties usually sign a mediation confidentiality agreement agreeing that all communications occurring within the mediation remain confidential.

Professor Coben’s study

So, with all of this statutory and contractual protection, mediations should be confidential. However, a yearly analysis of cases in court regarding mediations conducted by James R. Coben, Professor and Senior Fellow, Dispute Resolution Center at Hamline University School of Law shows quite the contrary.  Both in a recent webinar sponsored by the Section of  Dispute Resolution of the American Bar Association, and in a law review article, Professor Coben demonstrates that quite frequently, mediations have been the subject of hearings in court, and confidentiality has been ignored.  ( See, ABA   Section of  Dispute Resolution , The Ethics of Mediator Testimony: Tales from Recent Federal and State Case Law by James R. Coben, Professor and Senior Fellow, Dispute Resolution Institute, Hamline University ( September 2014 webinar); Coben, James R. and Thompson, Peter N. , Mediation Litigation Trends: 1999-2007, 1 World Arbitration and Mediation Review 396 (No. 3) (2007).)

Professor Coben found that with each passing year, more and more cases have dealt with mediations. For example, in 2002, there were only 301 cases; by 2006 this number had more than doubled -to 677 cases. In 2013, there were 802 cases.

At the same time, the trend has been a decrease in state court cases but an increase in federal court cases. In 2003, of the 335 cases, 87 of them or 26% of the cases were in federal court while 248 or 73% were in state court. Ten years later, in 2013– of the 802 cases, 444 of them or 55% of the cases were in federal court and 358 or 45% were filed in state courts.

What were the issues raised in these cases? Out of the 735 cases   filed in 2012– 272 of them or 37% involved the enforcement of the settlement agreement, 103 cases or 14% involved mediator fees, 66 cases or 9% involved confidentiality, 37 cases or   5% involved sanctions, and 22 cases or 3% involved ethics. Again, in 2013 ­ ­– 9% or 73 cases involved confidentiality.

With respect to confidentiality alone, between 1999 and 2005– there were 601 cases filed in which oral mediation communications were offered into evidence. Notably, the idea of mediation confidentiality or privilege was not even raised in 462 of them or in 76%!

During this same time period, in 125 cases, the mediator testified and again, in 85 of them or 68% of them, the notion of privilege was not even raised.

The subject of their testimony included:

• Attendance,

• Who did the negotiating,

• The terms of the settlement,

• The mental and physical health of the parties,

• The reasons why a settlement was not reached,

• Who drafted the settlement, admissions and/or statements made against interest,

•The content of   the discussions, including   releases, policy limits, attorneys’ fees, guarantees, valuations and authority, and

• With respect to class actions- the quality of the bargaining on behalf of the class members and the quality of the settlements

In short, almost every topic that might arise during  mediation was in an affidavit!

What Professor Coben also found, was that the simpler the statute, the more the litigation. California Evidence Code Section 1119 has 163 words and section 1122 has 176 words. Yet in 2003, of all the appellate decisions filed anywhere within the United States on the issue of confidentiality, California parties filed 27% of them. In 2009- the percentage was 63%.

In  contrast, less than 20 cases discussing confidentiality were filed in the eleven states and District of Columbia that adopted the Uniform Mediation Act (approximately 7500 words).

The area that mediation confidentiality seems to be ignored quite a lot has been class action settlements.   As these are often filed under the diversity jurisdiction of the federal court (28 U.S. C. §1332 (2012)), pursuant to Federal Rules of Evidence Rule 501, state law should apply. (See, Class Action Fairness Act of 2005, 28 USC § §1711-1715 (2012) ( Public Law 109-2, 119 Stat 5 (Feb 18, 2005).)

Mediators have quite frequently submitted affidavits attesting to the quality of the bargaining process and fairness of the settlement. Quite frequently, the federal and state courts have relied on the reputation of the mediator as evidence that the mediation process was fair, and did not involve fraud or collusion, ignoring any objections of any class members who were not at the mediation. For example, in 2013– there were 83 cases involving class action settlements in which the involvement of a private mediator, if not her affidavit submitted to the court, played a role in the court determining that the bargaining was at arm’s-length and not collusive.

Professor Coben cites three examples of cases heard in the California U.S. District Courts in 2013:

In Re MRV Communications Inc Derivative Litig., No. cv-08-03800 GAF (MANX), (a derivative action) arising in the Central District of California on June 6, 2013, the mediator’s declaration was quoted in the process of approving the settlement; on page 11 of the Memorandum and Order approving attorney fees, the district court states:

“¦And the mediator in the case concurs, urging that ‘the separately negotiated attorneys’ fees and expenses agreement was negotiated in good faith and is fair and reasonable and within the range of fees paid in similar shareholder-derivative cases.’

Johansson-Dohrmann v. CBR Systems, Inc, 12 cv -1115- MMA (S.D. Cal. July 24, 2013) again quoting a mediator declaration in several different places in the process of approving the settlement:

“¦the settlement is . . . fair and reasonable to all parties and provides significant benefits to the Settlement Class.   (Page 8 of Order) and

It was clear from the briefs and the discussions during the mediation that the parties and their counsel had a thorough understanding of the facts and law as well as the risks and uncertainties pertaining to the litigation. (Page 10 of Order)

That the parties “vigorously negotiated their respective positions,” and that the settlement was the “product of arm’s-length and good faith negotiations.” (Page 10 of Order)

Moore v. Verizon Communications, Inc. No. c-09-1823 SBA (N.D. Cal. August 28, 2013,) noting that the mediator “unreservedly” recommended the settlement. (Page 15 of Order) Here, the mediator submitted a ten page declaration in support of the settlement.

Interestingly, in these cases, none of the judges really discussed the reasoning behind crediting the mediator’s declaration. They just did so on the basis that the mediator was experienced, able, independent, nationally recognized, respected, prominent, well versed in the relevant law and other like conclusions.   In short, they were GOOD people and that was all that mattered.

While these cases do involve showing the fairness of class action settlements, there appears to be nothing in the mediation confidentiality statutes authorizing such as an exception. And while the parties may have waived confidentiality, many of the statutes require an express waiver in writing; rather than an implied waiver or simply ignoring the issue altogether as seems to have occurred here. (See, California Evidence Code sections 1118 and 1122)

Conclusion

Like everything else in life, when it comes to mediation confidentiality, theory and practice sometimes diverge. While both the legislatures and courts throughout the United States have made it clear that mediation confidentiality is to be respected and enforced, in any given situation, this rule of confidentiality and/or admissibility may be disregarded or, not even raised.   This may occur even if the parties have signed a mediation confidentiality agreement. There, too,  both the parties and   the court may ignore it.

So”¦ while in theory, mediations are to be confidential”¦ in practice, the buyer should be aware. Unlike Las Vegas, “it” just may not stay there.

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TEN PILLARS FOR LAWYERS PREPARING TO MEDIATE THE LITIGATED CASE

Irving Younger was a law professor and former trial court judge who took the trial lawyer world on a terrific ride through the land of cross-examination with a short list of dos and don’ts that he delivered with style, humor, and impact. “Be Brief!” and “Ask only questions to which you already know the answer (unless you don’t care what the answer is)!” were two rules every cross-examiner should follow. He didn’t pretend that following his ten “commandments” would turn every lawyer into a great cross-examiner, but following his rules would at least project competence and demonstrate occasional genius. YouTube it, laugh, and learn. There really weren’t ten rules (some were variations of others), but the number ten had a certain rhythm.

 

Similarly, contrary to the title of this essay, there really aren’t ten pillars for preparing to mediate the litigated case. But like Professor Younger’s approach to cross-examination, following a few simple rules for mediation preparation will make the sessions more effective, impress your clients with your awareness of the nuances of the process, and occasionally produce remarkable results. Most are not going to surprise you. Most you already follow to one degree or another. But some are not obvious, and special attention even to the ones that are self-evident is worthy of reinforcement.

 

These rules arise from a fewer number of fundamental truths about mediation: it’s not just a negotiation in which the mediator carries messages back and forth and it’s not about convincing the mediator how great your case is. Rather, mediation utilizes a tool – the mediator – whose proper use is essential to mastering the mediation process and exceeding your clients’ expectations. So let’s go through the pillars, with some explanation.

 

  1. Know The Basics Of The Process And Learn Any Mediator-Specific Procedures.

 

Most lawyers have an intuitive sense of the structure of the mediation process or learn the basics through experience in some or many mediations. It’s not inherently complicated: mediations are assisted negotiations in which, among other things, demands, offers, and counter-offers go back and forth through, and hopefully with the advice of, the mediator. Because the structure is simple, many lawyers expect they can bring their client, tell the client to keep quiet, and then just approach the mediation like any other settlement discussion (treating the mediator as a messenger and sounding board).

 

It could be said that only mediocre lawyers treat mediations like this, but the truth is there are lots of good lawyers who see mediation this way. The best explanation is that the skillset that makes attorneys good trial or litigation lawyers is different from (and in some regards inconsistent with) the skillset of lawyers who are able to exploit the mediation process.

 

So the first pillar is to discover how the process will unfold and what special rules or expectations the mediator has imposed. For example, will there be a joint session with all parties and counsel in the same room? If so, will it be anything more than a meet and greet session? The answer to these questions depends on all kinds of considerations and preferences, but you need to know the answers because they dictate how you prepare yourself and your client. If you want to bring your opening statement, a detailed summary of the evidence, and your closing argument (all with PowerPoint slides) because you want to convince the client on the other side of your awesome case, be sure that the mediator and the other side will agree. If you arrive expecting to dominate the initial session, you are likely to be disappointed (especially where the other lawyer doesn’t have the time or inclination to present his case the same way).

 

Once you have a good sense of how the session will play out, now you can move on to preparing for it.

 

  1. Know Your Case – Especially Its Risks, Weaknesses, And The Likely Cost If You Can’t Settle It.

 

It goes without saying that the lawyer has to be encyclopedic on the facts and law, on the witnesses and documents, on the claims and defenses, and on her and the other side’s arguments. It’s because this is obvious – and hard enough to do without discovering that there’s more – that many lawyer think that they can treat the mediation like the argument of a motion for summary judgment. This sort of preparation to advocate is necessary, but not nearly sufficient.

 

The essential shortcoming of this level of case analysis is that it usually leaves out a thorough, honest, and forthright exploration of what can go wrong. This is an area where good lawyering skills and good mediation skills may diverge. Lawyers are zealous advocates who are most effective when they believe unconditionally in the correctness of their positions. Because they are ethically bound to present only those arguments they believe are justified, they tend to convince themselves of the correctness of their positions.

 

But you are doomed to fail at finding a sensible resolution of the case if you do not have a genuine appreciation of how and where it can all go wrong (not to mention an understanding that if it goes wrong, it will probably happen in a way or on an issue or witness you never expected to present a problem). So study your warts; which include the fact that the process is distracting, painful, and expensive. Are you going to be asked to estimate the costs of the trial or arbitration process if the case isn’t settled? In 99% of your cases, the answer is “of course you are.” In the 1% of you cases where you aren’t asked, 99% of the time it’s because the client is afraid to ask. And if he isn’t on notice of what it will cost to prepare and present your case at trial, you are going to have a problem. So you better have a genuine cost estimate based on what’s left to do to get the case ready and what it will cost to present it. Even then, consider a multiplier of 2 or 3.

 

  1. Prepare Your Client for the Process, Being Especially Forthright and Forthcoming In Disclosing Risks and Costs.

 

Lawyers obviously need to tell their clients what to expect. But advising the client what a mediation is and how it will generally work is woefully insufficient. Everything that happens in the mediation that your client did not expect and was not prepared for will undermine the lawyer’s authority and her client’s level of respect. So the client must be prepared to have the lawyer’s and the client’s evaluations of the case challenged and any naive expectations about how long it will take and how expensive it will be demolished.

 

But this “prepare the client for the bad news” rule runs against the lawyer’s need to appear to his client to be the committed believer who can and will achieve extraordinary result at a remarkably reasonable cost. Lawyers get cases because they win cases. Clients hire them because they radiate strength and power. But the path to hell is paved with overstated conviction and undisclosed danger, so do your best. (If it seems that there are messages that need to be sent that the lawyer may have trouble delivering, let the mediator know so the mediator can deliver the bad tidings.)

 

So the lawyer must forthrightly explore the weaknesses of the case and costs and risks of pursuing it with the client. In doing so the lawyer makes it possible to obey the next pillar.

 

  1. Before You Arrive At the Mediation, Decide On Tentative Set of Settlement Terms That Are Tolerable. But Draw No Lines In The Sand.

 

So once you have fully and forthrightly evaluated the case and its likely costs, and shared the full evaluation with your client, you must recommend, defend, and have your client agree on a range of outcomes that tolerably protect your interests (not positions). Recognize that the “value” of the case for settlement purposes is not the expected verdict if you win (or lose) times the chances that you’ll win (or lose). You must also acknowledge what the client (or the lawyer in a contingency case) will have to pay (and what additional burdens your side will bear) to get to the end of the line.

 

Some call this establishing a bottom line for the negotiation. It’s better called a flexible or movable line of defense. “Moveable” because the mediation process will invariably cause the parties to focus on risks not previously considered significant and make it clear that each side needs to rethink their perspectives as new information is received. More importantly, it is likely that you will discover that you can’t settle the case for what you though it was “worth” before the mediation. Instead, you will have to decide whether it makes sense to continue the case rather than take “what you can get” or “pay what’s required to get it settled”.

 

So leave room for flexibility by setting a tentative settlement and adjustable target. Remember that if you set an unqualified bottom line, whether carefully thought out or not, this benchmark will take on a power and influence of its own. Even tentative positions can become anchors that make alternatives more difficult to adopt than would have been the case if the first position had never been taken.

 

  1. Trust The Mediator. Consider His Questions And Comments, And Allow Him To Deliver Bad News And Reality Therapy.

 

One of the most challenging and enlightening aspects of the mediation process is the opportunity for an intelligent and disinterested neutral to examine your positions and ask pointed questions that reveal dangers, weaknesses, and risks that you may have discounted or ignored. Some counsel believe mediators see it as their job to attack each side’s case wherever possible in order to convince them that they won’t prevail, and should therefore settle. This assumption about the mediator’s role is dangerously misguided.

 

The mediator’s job as “evaluator” is actually seriously different. This role not to advocate your opponent’s positions or attack yours; it is to encourage you to confront the risk that the other side’s arguments or evidence will be strong enough to allow the decision maker to decide against you for whatever reasons ultimately motivate the judge, jury, or arbitrator. As it turns out, the mediator is often the only credible voice to articulate these risks. Your opponent isn’t credible. The lawyer needs to be seen as the steadfast believer and advocate.

 

So it may only be the mediator who can set out the risks most convincingly. As a consequence, good lawyers encourage them to do it precisely because it helps the lawyer assure that the client is fully informed while maintaining the lawyer’s stature as undiluted and fearless advocate. So hear the mediator out, and test their credibility. By all means discount his views if they seem insincere, but don’t assume that’s the case. And, where appropriate, ask the mediator to deliver reality therapy where it is better conveyed by someone other than the client’s advocate.

 

  1. Let The Client Speak And Participate.

 

Most lawyers accept it as a given that clients hire them to advocate their client’s positions, that the lawyer can do it better than their clients, and that clients are likely to hurt their cases if they are allowed to speak. For this reason, lawyers are generally reticent to let their clients participate in mediation discussions (especially where the lawyer for the other side is present to take notes, conduct discovery, and prepare cross-examination).     Lawyers are only slightly more likely to let the client interact with the mediator in a conference where the opposing side is excluded.

 

This is very often a huge mistake in mediation because clients are their most effective advocates precisely because their views are not filtered, spun, abridged, or delivered by the lawyer. They are credible to the other side because an adversary’s lawyer gets no respect for truthfulness and honesty.

 

In the context of a confidential session with the mediator that excludes the other side, the client is likely to be extremely persuasive when it comes to demonstrating conviction and confidence in her position. This gives the mediator an important tool for confronting the other side with its risks. The client’s direct presentation to the other side’s client can be even more powerful and effective. Few things are more persuasive than one individual’s direct appeal to another principal, both because it is unfiltered and because the emotions are right there to be absorbed.

 

So discuss such a direct presentation, prepare it, and allow your client the opportunity to be heard by your opponent whenever possible. And remember that clients don’t just appreciate the opportunity to get their feelings off their chest. They may insist that for all the money and effort they have put into the matter, they should at least get the chance to be their own advocate (if only briefly). And the decision to allow a client to make a presentation demonstrates the lawyer’s trust and confidence in the client, which is obviously good for the lawyer’s relationship with the client.

 

  1. Use The Mediator As An Ally, Coach, and Strategic Asset, Not A Messenger.

 

There are many compelling differences between a mediation and an unassisted negotiation. Among them is the opportunity that each side has to have confidential conversations with someone who has also had confidential conversations with the other side. While that person – the mediator – is sworn to keep the contents of her separate conversations with the parties confidential, the fact that she has had the conversations, and knows important secrets about each side’s interests and expectations, allows her to make suggestions about how to conduct the negotiations that allow progress where none would otherwise be possible.

 

The simplest example is when the parties open the negotiations hundreds of thousands of dollars apart, and are so offended by each side’s initial offer that further negotiation seems useless. But the mediator will have learned things about each side’s views that will suggest ways to bring the parties closer together without either side having to disclose information they want concealed and without appearing weak or indecisive. The mediator has tools, and the power of suggestion, that can be used effectively to move the parties forward when they would otherwise have to refuse to proceed.

 

The mediator’s awareness of confidential information about each side’s most important interests (information that parties do not want to share because of fear that it will be misused or exploited) also allows the mediator to be an important resource, sounding board, strategist, and coach as each side presents their offers, counter offers, and positions. The essential point is that lawyers should look for ways to use the mediator as a tool for discovering ways to present their positions more effectively, using words and images with which the other side is likely to be more comfortable and by avoiding language and attitudes that interfere with the communication.

 

Finally recognize that the mediator has training, perspective, and experience that will facilitate the negotiations and help bridge the differences of the parties. Expect the mediator to supply useful analysis and suggestions about the progression of offers and counter-offers, about ways to deal with emotional aspects of the dispute (including whether an apology by one or both sides would be helpful and, if so, how they might be delivered effectively), and other proposals and approaches to surmounting potential impasse. When this happens, be flexible and open minded in considering mediator proposals to facilitate the negotiation.

 

  1. Bring With You The Flexibility You Need To Reevaluate The Case And Resolve It Without Delay If Your Views Evolve.

 

We are told that “in battle, no plan survives first contact with the enemy, so be prepared to improvise.” This is true in successful mediations. On occasion, both sides have a similar sense of the risks, costs, and opportunities of further litigation, and find a resolution within each side’s zone of reasonable compromise. But if this happened often or easily, there would not be much need for mediation, and we know that’s not the case.

 

In fact, your opponent will all but invariably see the case differently from you, making resolution possible only if you are prepared to concede more than you intended when the mediation began. It is also likely that the mediator or the other side will be at least somewhat persuasive in convincing you that there are risks and costs that were not fully discounted in what you established as your tentative bottom line.

 

Since this is likely to occur, you must be prepared to react effectively as your view of the case evolves or your conclusion about what it will take to settle it changes. The best way to do that is to be sure you have persons with necessary authority to reevaluate the case on the fly and have the stature to make a tough decision (or at least the stature to get approval for a tough decision). (Most courts require that lawyers bring a person or persons with final and open-ended authority to settle the case, so don’t be caught without sufficient authority or the necessary people to get a deal done.)

 

  1. Forget About Winning or Losing. Focus of Interests, Not Positions.

 

It is inherent in the litigation process that outcomes are framed as “wins”, “losses”, or “ties”. Everybody wants to win and hates to lose. But litigation is not a zero sum game. Absent special cases, the longer the litigation goes on, the greater the chance that there is no winner at all. And the more quickly the case is resolved, the more likely that both sides get an outcome that can be considered a victory.

 

So put aside the idea that a settlement is not viable unless it vindicates your stated position. A position is just a way to claim what you are entitled to. An interest is what you need; what’s important. Getting an outcome that gives you what you need, even if it doesn’t affirm all your positions and claims, is a good outcome, even if it’s less that you wanted, expected or feel entitled to. And put aside the notion that an insufficient settlement or a seemingly excessive settlement is a loss. Because whatever you get or pay, it will be worth less or cost more to obtain if it comes after fruitless and expensive legal wrangling.

 

  1. Eat A Healthy Meal, Take Your Medication, and Be Respectful.

 

Ok, these admonitions may not rise to the level of profound wisdom, but being physically ready and emotionally prepared for the mediation is more important than you may think. And emotional reactions driven by blood sugar spikes can bring a fruitful discussion to a halt more quickly than a power failure. So prepare for the mediation experience like you’d prepare for any tense and demanding event. And the same goes for your client.

 

The mediation process is also an occasion for long bottled up feelings, old rivalries, and for reactions to perceived insults and disrespect to be voiced. This voicing is, of course, especially likely at the tensest moments. Most mediators have come to expect and appreciate the usefulness of this kind of catharsis (properly managed and timed) because clients want to feel that the process allowed them to express themselves on the issues that are meaningful to them without the filter of their lawyer. Indeed, this sort of client participation may be critical to the success of the mediation.

 

But charged exchanges between parties can derail the discussions and close people’s minds to the sort of flexible evaluation of options that is essential in difficult mediations. (This is why many mediators dispense entirely with joint sessions.) So test your client’s need to be heard and discuss the subject with the mediator. Encourage them to express these feelings first to the mediator outside the presence of the other side. And counsel your clients to remain respectful when interacting with opposing parties (lawyers and clients).

 

CONCLUSION

 

Following these guidelines will not guarantee brilliant mediation outcomes, but attention to the principles will significantly increase the odds of success by improving your level of preparation and allowing you to take maximum advantage of the unique opportunities and advantages mediation affords…

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Using Mediation to Streamline the Litigation Process

The other night my wife and I watched the new Helen Mirren film, “Woman in Gold,” based on the true story of the recovery by Maria Altmann of the magnificent painting by Gustave Klimt of her Aunt Adele, which painting (and others) had been stolen from her family by the Nazis during the occupation of Austria.

The film was so interesting on so many levels, including: the life and times of enormously successful wealthy European Jewish families; the injustice and horror of the Nazi era; the relationship of Altmann’s lawyer to musician and composer Arnold Schoenberg; and the U.S. Supreme Court case that emanated from the dispute (Republic of Austria et al. v. Altmann, 541 U.S. 677 (2004).

Even so, the film captured my attention as a mediator.

In the film, following the Supreme Court’s decision on the retroactivity of the Foreign Sovereign Immunities Act of 1976 (28 U. S. C. § 1602 et seq) and the return of the case to the trial court (USDC, Cent. Dist. CA), lo and behold, a mediation takes place.

In the mediation, the representative for Austria refuses to negotiate for settlement less than full capitulation by Altmann.

Not willing to give up, Altmann’s attorney wisely offers an alternative:

Rather than settling on the main dispute, given such intransigence on the part of his opponent, Attorney Randy Schoenberg offers arbitration of the dispute in Austria as a solution, to which his client and the Austrian representative ultimately consent.

The arbitration shortcuts the protracted litigation in the District Court, saving time and money, and ultimately yields the return of the painting (and some others).

But the point is that the mediation streamlines the litigation process.

This is a result not to be overlooked.

Some cases cannot or will not settle at mediation. On the other hand, wise counsel may use the mediation forum to agree on procedural steps that will save the clients both time and money.

For instance, the mediation can be used to agree on discovery scheduling, or stipulations as to certain facts, or even an alternative forum for dispute resolution – like arbitration or an Expedited Jury Trial under Code of Civil Procedure § § 630.01-630.10. See, http://www.courts.ca.gov/documents/ejt010info.pdf .

And, as to the Expedited Jury Trial process, above, the mediation can even be used to negotiate, for later use, a “High/Low Agreement” that “specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury.” C.C.P. § 630.01 (b).

This is a great tool where otherwise there might be impasse and no settlement at all.

Accordingly, the mediation need not end without any agreement: the parties can utilize the mediation process to streamline the otherwise time-consuming, costly, and unpredictable litigation in which they are embroiled.

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Divorcing when Parents have Children with Special Needs

Mara Berke

Mara Berke

Carole hirschfield

Carole Hirschfield

by Mara Berke, J.D., MSW and Carol Hirshfield, PhD  

Divorcing parents who have children with special needs often have many pressing and complex parenting issues to consider that may not be best addressed by the expensive and slow adversarial court system. This article will give the reader a brief overview of the issues that may arise for families with special needs children, and some options that parents of special needs children should strongly consider for divorce.

How do children with “Special needs” get a diagnosis and have decisions made for them?

Parents, teachers or a pediatrician may notice there is something about the child that is different from other children. The first step in this often daunting for parents: do they agree to obtain a diagnosis and/or which professional(s) will perform the assessment? Do they agree that the child needs extra services? Since most professional screenings require both parents to authorize testing, this may be the first obstacle.

Once the parents agree to get a diagnosis, they may need to take their children to see a physician with a specialty, or a developmental pediatrician, a psychologist, neuropsychologist, psychiatrist, or other therapeutic specialists. Parents may be able to get help at their local public school. At the local public school, parents may request assessments to be provided by the school and initiate the Individualized Educational Plan (IEP) or a Section 504 Plan. (See www.disabiityrightsca.org publication, Special Education Rights and Responsibilities (SERR) Manual Revised & Updated September 2011, for more information.)

The parent’s emotional response to the new diagnosis may be more difficult in a divorce: each parent will need to address the children’s issues and work with the co-parent to take care of the children’s needs. In the most challenging situations, sometimes a parent may be in denial and not want to follow the recommended treatment.

Parents will need to attend meetings at school and work towards agreement with the assessments, eligibility, goals, services and school options offered by the school district. Further post-separation complications regarding the school choice may occur if the parents move to different school districts, and they do not agree on the home school.

Parents may feel overwhelmed by managing their children’s special needs and the parenting decisions that must be made: will the children need medication or special therapies? Their parenting is even more complicated because of their divorce or separation. Parents also have to navigate sharing time with their children by establishing a custody schedule. What schedule is best given the children’s personality and adjustment to transitions, parent’s work schedules and wishes? If the children have in home treatment, how will parents navigate establishing new routines and coordinating the services in place or obtain new services to accommodate their families changing needs?

Options for Divorce: the Choice Matters  

Court Process: Litigation

If parents are unable to agree on any of these parenting issues, they need a way to resolve them and have decisions made regarding their children. Some parents who separate or divorce look to the Family Law Court, where the costs and delay in addressing specific potentially time sensitive issues may not serve families with special needs children well. Children who need medical treatment or school placement often cannot wait for the court process.

At the time of the hearing, the Court may make temporary custody orders, appoint a child custody evaluator and set a continued hearing date to enable the child custody evaluator to conduct the evaluation. The evaluation takes a minimum of 3 to 6 months, costs in the range of $7,500 to $25,000, and is a thorough assessment of each parent, the children at home and in the office, and speaks to other people in the children’s life, such as nannies, therapists or other collaborative witnesses identified by the parties. Ultimately, the evaluator provides a report with recommendations, and the Court after hearing and testimony makes a decision.

Consensual Dispute Resolution Options

Some useful alternative approaches to conflict resolution include mediation, collaborative family law and parenting plan coordination. With these approaches, the professional assisting the family knows them and can spend the time to understand the particular special needs of the children and the nuances of the parenting decisions that need to be made. The trained professional can help the family discuss their concerns and interests and assist in generating options to help them come to a well thought out solution. These options are less costly both emotionally and financially and help to decrease conflict and focus on the children. The parents then have a relationship with the professional that can be ongoing and used if needed. The professional can refer the parents to additional resources, including parent support groups, parenting groups and therapists. Specifically tailored solutions can be reached in a more efficient and timely way. The method to break any deadlock in joint decisions also can be addressed. Specifically defined areas of decisions to one parent can be agreed upon. However, it is important that whatever decision is made it is supported by both parents and not undermined.

  • Mediation is a process by which parents, together with the assistance of a neutral third person(s), systematically isolate areas of dispute, in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their mutual needs. (See Folberg & Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation (Jossey-Bass Social & Behavioral Science 1984.) The mediator helps parents identify their interests, goals and tries to find common ground to resolve the parenting issues step by step.
  • Collaborative Divorce is a process for divorcing clients, their attorneys and other professionals involved to work towards reaching a mutually acceptable settlement without going to court and make that pledge in writing. The collaborative team works with the parents on the issues freely and openly as a team, which makes problem solving direct and solution-oriented.
  • Parenting Plan Coordination (“PPC”) is a voluntary process which combines mediation and arbitration. A mental health or legal professional with mediation training and experience assists the parents by mediating solutions and if they cannot resolve the disputes, then the PPC makes parenting decisions, giving the parents a written decision briefly explaining recommendations and findings.

Conclusion: Families with Children who have special needs have options to address their special challenges

In conclusion, families who have children with special needs and are separating or divorcing have additional challenges to address, some of which have time constraints. Those challenges, such as diagnosis, obtaining the right services or school placement for their children, may require extra expertise and more carefully tailored legal and physical custody plans. Parents with children with special needs would be better served by making the choice of consensual dispute resolution services to assist them in managing their challenges.

Short Biography:

Mara Berke, J.D., M.S.W., is a California family law attorney mediator, collaborative lawyer and parenting plan coordinator in Santa Monica. Ms. Berke has specialized training by the Los Angeles Superior Court, Family Court Services, in child custody mediation and experience with children with developmental disabilities, specifically Autism. Ms. Berke is developing a parent support group for parents of middle and high school students with social differences, which is in the process of becoming funded by the Westside Regional Center.

www.berkefamilymediation.com     mara@berkefamilymediation.com

Carol Hirshfield, Ph.D., is a Licensed Clinical Psychologist in West Los Angeles who has special expertise in working with children with special needs and their families. She also is a custody mediator, a Collaborative Divorce coach and a Child Specialist for Collaborative cases. She teaches co-parenting classes and has time-limited groups for children of high conflict divorce. Dr. Hirshfield is on the list of specialists for LA County Superior Court for Counseling and for Parent Education for high conflict cases.

www.drcarolhirshfield.com drcarol@drcarolhirshfield.com

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Mediation Marathon

I have mixed emotions. Why? Recently, I have conducted multiple mediations simultaneously in matters involving the same plaintiff’s counsel and defendant’s counsel. These are lemon law cases and so frequently the same plaintiff’s counsel will have multiple cases with the same defense counsel. The mediations are thus scheduled for a single day and only counsel are present. The attorneys beforehand agree on which cases to mediate, and we mediate 6-10 cases simultaneously in a matter of hours. The plaintiffs are available by telephone as is the manufacturer’s representative. We create a spread sheet on which we list the name of each plaintiff and then columns for first the plaintiff’s demand, then the defendant’s offer, then the second round of same, the third round of same and so on. Each time I speak with each attorney, I obtain demands/ offers on each case, then take them to opposing counsel where the response is given on each matter and so on back and forth until an amount is agreed upon or not. Often, since counsel are the only ones present and know each other, they may speak directly to each other about the issues- substantive and monetary. So far, all of the cases have settled using this “marathon” method of mediation.

Is this “mediation”? From my many hours of training, I have learned that the “process” is important. Indeed, the Model Standards of Conduct for Mediators talk about party self-determination, and the quality of the process, among other things. With respect to self-determination, the model rules define it as “”¦the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Standard 1 A.) With respect to Quality of the Process (Standard VI), the Model Standards provide that that the mediation is to be conducted “”¦ in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.” (Standard VI A.)

By conducting these mediations en masse, has each plaintiff’s case been routinized, become part of an assembly line and simply turned into a numbers game? Often in mediations, each party is allowed to tell her story, to be listened to, heard and acknowledged. This giving of dignity and respect to each party is fundamental to the process. It is the first time (and perhaps the only time) that many plaintiffs will be able to tell their story to a third party. While to the attorneys, it may be “just another case”, to the plaintiff it is HER story, and her ONLY experience with these issues. Unlike the others in a mediation, she is NOT a repeat player. She is the one who is affected by the events, and she is the only who at the end of the day, must live with the results of the mediation. The rest of us in the room get to go home, walk the dog to clear our minds of the day’s events and move on to other things.

Granted, during each round of the negotiations, each counsel is constantly on the telephone with her respective client updating her as to the events and seeking further settlement authority. But, is the quality of the process being compromised (sacrificed?) by the parties not actually being there, by not being able to sit across the table from each other and listen and hear to what the other is saying in an effort to understand the other’s perspective and thus the other’s needs and interests?

Is this marathon process simply a Band-Aid approach rather than one truly resolving the underlying conflict? Does the plaintiff walk away as satisfied as she would be had she been sitting in the conference room and given the opportunity to tell her story and be heard and acknowledged? I do not know.

The counter argument to the above is that these marathon mediations are an efficient and cost effective way to settle the cases. Each plaintiff IS on the telephone and, as the situation may reveal itself, I, as the mediator, do have the opportunity (and have indeed taken it) to speak directly to the plaintiff on the telephone to listen to her and acknowledge her. Indeed, in some of these, I have held a joint session in which defense counsel is also present to listen and discuss the issues with the plaintiff.

And again, both counsel and I work to insure that no plaintiff feels coerced or forced to settle. Some of these matters have spilled over to the next day to allow counsel to further discuss the matter with her client and to allow the client further time to think about it.

So”¦ my emotions are mixed. While these marathon mediations are an efficient and cost effective way to resolve matters, are they doing so at the expense of the dignity of the parties and of the process? Are we forsaking the quality of the process for efficiency because in today’s world there is simply too much to do, and not enough time in which to do it given the 24/7 world in which we live? As the mediation process does truly belong to the parties (it IS, indeed their dispute!), should I as the mediator even be concerned about these things? After all, it IS their mediation, not mine!

“¦. Just something to think about.

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Days of Dialogue on the Future of Policing

Avis Ridley ThomasSince 1995 Days of Dialogue has helped the Los Angeles community tackle large-scale public discussions about difficult issues (www.daysofdialogue.org ).

Days of Dialogue on the Future of Policing, kicking off on August 11, 2015, which is the 50th anniversary of the Watts Rebellion, follows this tradition.

Given the current national focus on policing issues, a Steering Committee has been convened by Days of Dialogue involving LAPD, UCLA’s Center for Policing Equity, Mediators Beyond Borders, The Office of the Los Angeles City Attorney, The City and County Human Relations Commissions, and others.

Funding and support are being sought from every sector of our community, including business, unions, faith-based, educational and governmental institutions, the media and others.

SCMA will be an important partner in this effort, knowing as we do the unique talents and commitment of mediators throughout the region.   Locating host locations for the dialogue sessions, helping to plan, recruit sponsors, facilitate and promote dialogue sessions are but a few of the many ways that you can participate.

You are strongly encouraged to contact Days of Dialogue at aridley-thomas@daysofdialogue.org if you would like to assist in this important effort.

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Talking it Out: The Peer Mediation Program at Six LAUSD Schools

Question: Do you plan to be a Peer Mediator at your school? Why or why not?

Answer 1: I do, because I want to help people that have problems.

Answer 2: Yes I do! I want to because you get  popular while you are helping people.

Answer 3: Yes, because I learned how to handle my stress.

Answer 4: Yes, because in the class we were peaceful and  I learned more.

– 4th and 5th grade students  in the Peer Mediation Program at  L.B. Weemes Elementary School

www.invla.org.

When Avis founded the Dispute Resolution Program in the Los Angeles City Attorney’s Office in 1989, the idea that people could work out their differences simply by learning to communicate better, and by listening to each other, was a notion that most communities had never considered. People who were involved in a dispute were accustomed to calling the police, or, to taking matters into their own hands and resorting to violence.

In the course of more than two decades, Avis and her staff trained over 2,000 volunteer community mediators. “We offered an alternative, which was an option for folks to air their issues in a neutral environment and to have their side of the story heard. With the help of the  trained volunteer mediators, in 99% of the cases, people were able to come to agreements that largely and lastingly diffused whatever the original dispute was about.”

Now retired from the city and continuing on her mission to install mediators on every block, Avis has designed the Peer Mediation Program for K – 12 schools. The program is currently being offered in six South Los Angeles schools, all in the vicinity of USC, thanks to a grant from the USC Good Neighbors Campaign. So far this year, INVLA has provided Peer Mediation Training to more than 120 students, parents, and staff.

Susan Buckner, one of the trainers, says “I’ve been impressed with how insightful and dedicated our core of student mediators are.” When students get involved in a dispute (the topics range from bullying and cyber-bullying, to ‘he-said-she-said,’ to petty theft and more), anger and frustration builds and spills out into classrooms, the schoolyard, and beyond.

Having the option to take their cases to Peer Mediation, “…the students feel like there is someone there who is really listening, and it makes them realize that maybe they can get along better- or at least respect each other a bit more- now that they know how the other person feels. Also, they learn that there is no stigma attached to asking your peers to help you  out. And this is often much less scary- and more effective in the long run- than having to talk about your problems with an adult. “ (Alan Seitz, 6th Grade Counselor at Foshay Learning Center).

During five 1-hour training sessions, students learn the ITUNA Process. ITUNA stands for Introduction, Talking, Understanding, Negotiation, and Agreement. Through role-plays and hands on exercises where participants create Mood Meters and Conflict Collages, students become better listeners and communicators. Parents and staff are encouraged to take the training along with their students, or in separate sessions offered by INVLA. Emphasis is placed on social emotional learning (SEL). The students learn that it is ok to have emotions, and once they identify how they feel, they are able to talk about it. This helps them to view their disputes more objectively and to put the challenges  that they may be experiencing into context, whether the situation is happening at school, at home, or elsewhere.

The Peer Mediation Program integrates social emotional learning as an essential framework for the mediation process, and for life.

In keeping with the restorative justice model, schools are encouraged to offer participation in Peer Mediation as an alternative to suspension, thereby improving long-term outcomes for students who might otherwise become caught up in the ‘schools to prison pipeline,’ when no constructive interventions are employed.

Ms. Yvonne Edwards, principal at Foshay Learning Center, appreciates how the Peer Mediation training program helps to create a safer and calmer environment on campus: “There is a direct impact for us with the kids receiving this training and then volunteering to help.

their friends. They are learning to communicate non- violently; they can talk it out, not fight it out. They are learning skills that will help them to successfully manage many different challenging situations that they will doubtless experience throughout their lives.”

We are often asked how we can tell that the program is having a positive impact on the lives of students, and the greater community. Constance Boukidis, one of the trained volunteer mediators, reported to us: “Rafael (not his real name), a 6th grader, was involved in a few mediations last year. The issue was about teasing. The sessions were difficult for both the individuals involved, and the peer mediators. An adult supervisor was present, as is the case  during all mediations. The two brief sessions (one half hour each) led to a cessation of the teasing and a new mutual understanding between the parties.”

This year, Rafael returned to the Peer Mediation Program, not as a disputant but to take the training himself, so that he could become a peer mediator and help other students as he had been helped.

“When we have a success story like this one, I know that we are making an impact. Children bring the peace-making skills and communication skills that they learn in the Peer Mediation Program back to their communities, and it often changes the behavior- in a positive way- of all those with whom they come in contact. Students and their families begin  to make different choices, choices that result in positive life outcomes.” (Avis Ridley-Thomas).

Are there logistical challenges at each of the school sites with regard to the  consistent implementation of the Peer Mediation Program, after the initial training sessions are completed? Of course there are. But the challenges become immaterial when we recognize that at a crucial stage in the development of these children and teens, an important new vocabulary is being transmitted into the neighborhoods of South Los Angeles, a vocabulary of “talking it out, not fighting it out.”

For more information about the Peer Mediation Program and www.INVLA.org, contact

jfrank@daysofdialogue.org

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MASTERS THESIS

Recently, the world’s greatest golfers gathered in Augusta, Georgia to compete in what many consider to be the sport’s most prestigious tournament — The Masters. Virtually every one of them had a nearly flawless and effortless swing, and most were capable of hitting the ball close to 300 yards — or more — with his driver. Each was also proficient with his irons, sand wedge and putter.

So what set the eventual winner, Jordan Spieth, apart from the rest of the field?

The championship trophy and green jacket usually go to the golfer who best conceives and most consistently executes a strategy for dealing with the unique challenges presented by Augusta National’s undulating design and difficult pin placements for the entire four-day tournament.

I’ve long espoused the theory that the best golfers and best negotiators share much in common. They are exceedingly polite. They are adept at managing risk and approach their task with carefully considered strategies designed to pursue their objective as aggressively as possible, while limiting, to the extent possible, their exposure to the obstacles, traps and hazards they will necessarily confront. They know when and when not to take chances, taking into account their own strengths and weaknesses and the strengths and weaknesses of their opponents.

Golfers arrive at every hole knowing, in advance, exactly where it will end. With that ultimate destination in mind, the great golfers “reverse engineer.” They analyze each hole in reverse to pinpoint the location from which they are likely to be most effective in hitting their next shot. Working backwards, they determine where they want their approach shot to land on the green, which dictates where they will need to be when they hit their approach shot, which, in turn, will determine how far and where they will need to drive their tee shot. Ordinarily, a golfer’s first shot covers the greatest distance, with each successive shot progressively shorter. Of course, golfers may need to make mid-course corrections depending upon how well they — and their opponents — execute their plans.

Those who are masters at negotiating tend to approach negotiations in a strikingly similar way. They first identify the target and then design a strategy to reach that target, calculating exactly how much distance they will need to cover. Working backwards, they, too, divide the distance into separate and increasingly smaller moves. When necessary, they make adjustments to account for changed circumstances and/or the actions of their opponents.

Consider approaching your next negotiation the way Jordan, Phil, Rory, Tiger and others approached Augusta. Identify the target and calculate the distance between start and finish. Divide that distance into successively smaller moves. Make mid-course corrections as needed. Be unfailingly courteous at all times. By the end of the day, chances are good that everyone will be shaking hands.

For those who master the art of negotiation, settlement is par for the course.

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Settlement Electronically, The Pitfalls and Requirements Of The “Uniform Electronic Transactions Act”

Many mediators assist parties in putting together a Memorandum of Settlement (or a formal settlement agreement if one has been brought to the mediation).       However, from time to time, especially late in the day or when parties settle their cases after the mediation session, counsel for the parties will either (a) agree to leave the session without a signed agreement (a risky practice), or (b) exchange electronic signatures to memorialize a settlement.

Electronic execution of documents is becoming far more frequent since the passage of the UETA (“Uniform Electronic Transactions Act”). Parties from time to time agree to execute memoranda of settlement electronically, so mediators who assist the parties in preparing settlement agreements should be aware of the pitfalls and requirements of the UETA

The takeaway:   The Court of Appeal is strongly indicating that the provisions of the UETA must be strictly complied with, even if there is general assent to a settlement and even if it means denying a CCP 664.6 motion to enforce.  The court is stating clearly that any transactions conducted by electronic means must first have an enforceable stipulation to conduct transactions in that manner under 1633,5(b). If a Memorandum of Settlement is used prior to the execution of a formal agreement,  the parties should clearly state that notwithstanding the execution of a formal agreement, they agree to be bound by the material terms set forth in the MOS.  More likely, settlements executed in this manner will be executed after the mediation session, so they need to follow the code strictly. Finally, it is crucial to assure that any electronic signature is clearly made part of the offer (ideally) by specifically stating that acceptance is incorporated into the terms of the offer, and that such acceptance is enforceable.

Mediators should be extremely careful and ultimately decline to provide advice to counsel and parties who seek to conclude settlements is this manner.     However, as mediators, we do wish for settlements to be lasting and final for the benefit of the parties and counsel. Therefore, counsel should be aware of the necessity of strict compliance with the UETA if they chose to have their client’s settlement agreement executed in this manner.

First, it is basic to all settlements (except for construction defect settlements which may be governed by CCP section 664.7) that CCP section 664.6 requires any settlement arrived at out of court be “signed by the parties outside the presence of the court”¦”. Simply put, if the agreement is arrived at outside the court and is not signed off by the parties it is not enforceable under 664.6.

The question of electronic signatures was recently considered by the California Court of Appeal in J.B.B. Investment Partners, Ltd. v. Fair,  A140232, A141228 December 5, 2014, not certified for publication, certified for publication December 30, 2014).  In J.B.B, after negotiations regarding a real estate investment, Plaintiff J.B.B sent an email to Defendant Fair setting forth the terms of the agreement, including the staying of litigation pending settlement.  The email stated that Fair was required to state that he accepted the terms of the settlement, and to let Plaintiff know when he did.  The following morning, Fair sent an email to Plaintiff’s counsel disagreeing with his recitation of facts in the proposed agreement, but concluding with a statement “So I agree. Tom Fair”.

Nevertheless, Plaintiff believed that this statement was ambiguous, so it filed its complaint.  After receiving notice that the complaint was filed, Fair then contacted Plaintiff’s counsel reiterating his agreement in three separate emails. Plaintiff’s counsel then went to work on a final settlement agreement which was sent to Fair for signature.  Fair then refused to sign off on that document after consultation with his accountant, stating further that (a) after Plaintiff filed its complaint, he changed his mind about the settlement and (b) his emails indicated a showing of good faith to end the dispute, not a final agreement.  Upon motion under CCP  section 664.6, the trial court found in favor of the Plaintiff and held that Fair’s signature was an electronic signature under Civil Code 1633.1 et. seq. The court further found that Fair’s follow-up emails reiterating his agreement when taken together, constituted an acceptance of Plaintiff’s offer.

The trial court reversed, stating in pertinent part as follows:

1.  Civil Code section 1633.1 et. seq. of the UETA” provides that a signature may not be denied legal effect solely because it is in electronic form (1633.7(a); a contract may not be denied legal effect solely because it is in electronic form (1633.7(b); and if the law requires a signature, an electronic signature satisfies the law.(1633.7(c)

2. Fair contended that the emails were not final electronic signatures because Plaintiff contemplated Fair signing off on a formal settlement agreement.  There was no signature block for Fair to sign in any of the  emails to which he said “I agree with this”, but also contemplated the finalizing of deal terms.  The court held under Civil Code  1633.2(h), “an electronic signature means an electronic sound, symbol or process attached to, or logically associated with, an electronic record and executed or adopted by a person with the intent to sign the electronic record“.  Further, the parties must consent to conduct the transaction by electronic means, (1633.5(b), and because no such consent was memorialized, this was not a valid electronic signature.  Importantly, since Fair only initially offered his printed name after voicing factual disagreements, his initial email was not a valid electronic signature for the purposes of enforcing the agreement.

3. The further emails in which Fair stated that he “agreed” indicated that the parties would continue to work on a final agreement.  Thus, these were not valid electronic signatures either.

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