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.
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.
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.
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.
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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Since 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.
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
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.
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.
Mediation and “Alternative” Dispute ResolutionMediation – A Brief History in the Santa Barbara Superior Court
Some would ask, “Mediation?” And they felt we might as well incorporate MEDITATION into the courtroom processes as a way of resolving cases: “Ohmm……….Ohmm……….Ohmm……….CASE RESOLVED!”
That describes the attitude of a few of my colleagues on the Santa Barbara Courts when I began to work, with others, on an Alternative Dispute Resolution Program for the Court in 1996. Those judges wanted no consideration of any process for resolution of cases short of trial. The parties either settled the case on their own, or they would have to roll the dice and go to trial. Those “purists” among us, who thought that trial, or approval of the parties unassisted settlement negotiation processes, were the only legitimate resolution for court cases, spent much time in trial.
All judges understand arbitration as a case resolution process. After all, arbitration is very much like a court trial proceeding. It has the look and feel of a court trial, with the presentation of evidence and objections thereto under the Evidence Code. It’s a bit less formal than a court trial, but it is the same breed of animal. The arbitrator’s decision might be binding on the parties, or it might not be a conclusive end to the litigation. If it is not, they retain the right to march back into court and have a “real” trial.
Neutral Case Evaluation also has a base of understanding among the members of the bench. Sitting down with the parties and hearing a brief presentation regarding the claims, the contentions and the evidentiary issues in the litigation; and, in return, providing an assessment of the strengths and weaknesses, and the risks involved for each side, as well as the outcome probabilities, is something that each of us judges had done in a settlement conference. No big deal. But what was this new, or different animal called “mediation”?
Most judges handling civil cases took advantage of the court’s Settlement Master Program. Under this program, cases on the doorstep of trial were scheduled for a mandatory settlement conference before an experienced litigator who volunteered to act as a “Settlement Master” on behalf of the court. The court was selective in its appointment of Settlement Masters, so the appellation held some status among members of the Bar
We had considerable success with the Settlement Master Program, but we were only taking advantage of one of the windows of opportunity for settlement of a case. Two such windows exist. We were only availing ourselves of the window which exists at the end of the litigation chain, on the doorstep of trial. This window is created because the parties have been beaten down by the litigation process to the point of exhaustion. They’ve gone through responding to written discovery, the taking of depositions, various law and motion proceedings, and they probably have writer’s cramps from writing checks for various and sundry fees and expenses. They are crawling to the doorstep of trial with the realization that they are probably about to spend as much money, resources and emotional energy to conduct a trial proceeding as they have spent in getting to this point.
There is a much earlier window of opportunity for settlement of the case. It exists at the commencement of the litigation. The controversy is just beginning, no one has yet dug in their heels, and, although not happy to be in the fray, the wounded feelings caused by the litigation process are yet to be known. In that time frame, 1996-7, the judges determined that we should endeavor to open that window; and a countywide committee was created with the vision of creating a “multi-door courthouse” model, designed to offer litigants with pending civil cases several alternative methodologies for resolution of their cases, other than traditional courtroom litigation.
My first exposure to mediation as a dispute resolution mechanism had occurred in the late 1970’s. I was the Directing Attorney of the Yolo County Law Office of Legal Services of Northern California, adjacent to Sacramento. I had handled a number of civil rights and community related issues and was known for such endeavors. One fall evening, a youthful, exuberant “block party” had become a tumultuous nuisance, drawing neighborhood complaints. City of Woodland police officers endeavored to close the party down and met resistance. Law enforcement units from seven different police agencies eventually responded, and several dozen “less than peaceable” arrests ensued. Some called it a riot, others termed it a police riot. The subsequent plethora of prosecutions led to angry picket lines surrounding the local courthouse, and steadily increasing community tensions, which were the subject of widespread local media coverage. I was approached by a number of local community representatives and was beseeched to consider bringing a large scale unlawful arrest/excessive force legal action.
At about the same time, I received an unsolicited call from San Francisco. The caller was from the U.S. Department of Justice’s Community Relations Service. Unaware that such an entity existed, I did my research, and discovered that it had been created by Title X of the Civil Rights Act of 1964, specifically to deal with such issues. I eventually conversed with a mediator from that service who had handled a number of community mediations around the country, including the occupation and siege at Wounded Knee. He asked my assistance in establishing a community-based mediation in an effort to resolve the mounting discord. It seemed to me that litigation would only exacerbate a clearly volcanic situation. So I agreed to assist in commencing the federal government’s effort to resolve the multitude of issues raised, through a communitywide mediation process.
A seven-month long process was facilitated by community mediators from the Department of Justice in my Legal Aid office law library. It involved discussions between heads of law enforcement agencies and local government officials on one side, and an array of community representatives on the other. That process resulted in the formulation of a comprehensive written agreement, which provided a framework for ongoing dialogue and for resolving future community complaints; as well as the first “use of force” policies for some local law enforcement agencies. I still recall the day when the agreement was signed and the six or so representatives on each side of the table stood, shook hands, and engaged in celebratory salutations. Each walked away with a greater understanding and increased respect for the others involved in the process. Mediation worked, where litigation would have not.
The first “Alternative Dispute Resolution Program Committee” in the Santa Barbara County courts met on October 23, 1996, during the pre-court consolidation era. I was the representative of the Santa Barbara Municipal Court. Judge Bruce Dodds Chaired the committee for the Superior Court. Judge Jim Jennings was the other Superior Court representative. North County Municipal Court Judge Rick Brown, Referee Steve Belasco from that court, and local bar representatives David Bixby, James Herman, James Iwasko, and Paul Pettine, filled out the committee roster. Attorney, and former Legal Aid Foundation of Santa Barbara cohort Lessie Nixon, and Judge Zel Canter, as I recall, joined later. The development and implementation staff included consultants ADR specialists Robert Oakes and Lee Jay Berman, Attorney Iya Falcone, Gary Blair, the court’s Executive Officer, and Flota Pritchard, the Calendar Coordinator. Time has marched on for each of us, and I am undoubtedly leaving out some worthy participant(s). The charge of the committee was to create a “multi-door” courthouse, where litigants could choose from a selection of dispute resolution methodologies in order to get to closure.
I had been elected to the post of Presiding Judge of the consolidated Superior Court in the Fall of 1997. My term, which commenced in January 1998, was extended to three years in order to allow continuity in the management of the court consolidation process. In terms of my on-going interest in developing a court-attached ADR program, I was impelled by my Legal Aid experience, and by a realization that the traditional litigation forum was not the best way to resolve some of the cases in court. On the contrary, I had concluded that litigation was the worst way to resolve some in-court disputes.
I was, perhaps, 10 years on the Municipal Court bench in the early 1990’s, when a court trial was assigned to my courtroom. The trial carried a 1-2 day time estimate, so it certainly did not appear that trial would be complex, and certainly not too time consuming. It struck me as odd though, that the Plaintiff and the Defendant had the same last name. The Plaintiff was suing for the sum of ten thousand dollars, which he claimed to have loaned to the Defendant.
I started to become uneasy when I learned from counsel’s opening statements that Plaintiff and Defendant were father and son. As the testimony began to paint the picture, the following scenario began to unfold. Plaintiff was a successful building contractor who had long been estranged from his son. During a period of rapprochement, when their long winter had begun to thaw out a bit, he became aware that his son and daughter-in-law were, for the first time, endeavoring to purchase a home for their family with three children, and needed his assistance with a down payment. Father had had very little contact with son’s children, unlike the grandchildren bestowed upon him by his daughter. Father was very close to his daughter, her husband, and their children. He had, in fact, purchased a ranch residence in the Santa Ynez Valley for them because his daughter loved to keep and ride horses.
It seemed odd that a father with one son and one daughter should have such starkly different relationships with the only two branches of his family tree. To shower one child and her progeny with wealth, attention and gifts; to spend all holidays and grandfatherly time with one set of grandchildren; and to shun the other branch entirely, seemed an extremely sad and convoluted state of affairs. And now he was suing his son, giving me the task of making the legal determination as to whether the $10,000 which was transferred from father to son for the down payment was a “loan” or a “gift”.
In the mid-afternoon of the first day of trial, the true family dynamic began to reveal itself. It became apparent, through testimonial presentation, that father had married son’s mother 32 years prior to the time of trial. He had divorced son’s mother and had married daughter’s mother 31 years ago. From the timing of things, son was either not yet born, or had just been born, about the time of the dissolution of marriage and subsequent remarriage. It was easy to see that such an abrupt end to a marital relationship might be some cause for estrangement. But I had no idea of what was about to come forth.
It was during son’s testimony in the defense case that the true nature of the conflict was revealed. He testified that his mother, and his sister’s mother, were themselves sisters. They were each other’s only sibling. Father had married older sister and she was soon with child; the testifying witness. Father then took a fancy for wife’s younger sister; divorced wife #1, and married younger sister, with whom he had the daughter. The two sisters had not spoken to each other for 31 years.
I was crestfallen. I wasn’t really about the task of making a cool, clean determination as to whether a father had made a “loan” or a “gift” to his son. I was being dragged into the perpetuation of three decades of familial destructiveness. I began to envision the possible results of my determination. If father won, and received a $10,000 judgment against his son of meager means; whose only asset was the home where Grandpa had helped put a roof over his grandchildren’s heads, would Plaintiff put a lien on that very abode? If the verdict was for the defense, would Grandpa ever speak to his grandchildren again?
I know judges can’t take into consideration such things; our task is to rule according to the facts and the law. But it was abundantly clear that my determination was not going to be a resolution to these folk’s problems. I called a break in the action. I took counsel into chambers and conferred with them about the circumstances of the case. I suggested mediation or some form of family counseling. Each attorney had apparently made efforts to steer their clients in a such a different direction, without success. With my urging, they made another go of it. Once again, without success.
I concluded the trial proceeding the next day. The evidence revealed that the monies were given by father to son, without any promise or expectation of recompense. It was a gift; hence, verdict for the defense.
I wondered for years, and still wonder, if those excruciating family dynamics ever changed. My trial proceeding could only have made things worse. Whenever the parties to an action have an ongoing relationship, litigation is probably not the best way to resolve a dispute. And in many cases, it just might be the worst. This is true whether the relationship is among family members, among neighbors, in an employment setting, in the business world, or in any other circumstance where relationships are likely to live on after the dispute ends.
This realization, generated by that case, was reaffirmed in a case I handled in my first year after election to the Superior Court bench, in 1997. There were six Superior Court judges in south county, and we each did 1/6th of everything. My office had been vacant for a while so the other judges carved out 1/6th of their portion (probably the least favored portion) of each of their cases and sent them to me.
Among those cases was an action for partition of a substantial piece of property. Hemingway’s (nom de guerre) was a well-established, long time business situated on a downtown street. It was a few blocks away from the courthouse, and was in the business of selling various types of furniture. I received the case on the doorstep of trial and was seeing it for the first time. As always, I conducted a final settlement conference before clearing the decks for the trial proceeding.
The case involved the two branches of the Hemingway family. It turns out that Old Man Hemingway, around the turn of the century, had been an industrious businessman who had acquired several substantial parcels of property in the downtown area during his lifetime. Those properties had become the sites of several prosperous and influential business enterprises. The patriarch had had two children, and had left his substantial estate to them. They had children and grandchildren, but the haggling over the common business interests had, over time, created what can only be described as an all-consuming hatred between the two branches of the family.
I learned that my lawsuit was the sixth of seven filed between the two branches of the family. The annals of the Hemingway family lawsuits filled many of the court clerk’s filing cabinets. Each side had a matriarch who ruled her branch of the family. The animus between the branches of the family was so ingrained that each branch attributed the untimely death of a family member to the stress ostensibly thrust upon their branch by the other.
Now, I’d learned my lesson from that first case (the father suing his son), so I determined to dig in my heel’s on this one. I spoke to the attorneys about my perceptions of litigation in the family setting and strongly urged mediation. Both counsel were favorable to the suggestion and promised to endeavor to persuade their clients to the mediation pathway. I continued the pre-trial conference for two weeks.
Counsel arrived for the conference and began to report on their efforts. For one, the task had been rather easy. His client was completely agreeable to trying mediation as a means of seeking to resolve the dispute. The other was not so fortunate. His client, the 92-year-old matriarch (for convenience I’ll call her Mrs. Jones), adamantly refused to try some new-fangled way of resolving her case. She was insistent on her day in court, and she would absolutely not consider any other alternative. I ruminated and cogitated for a while; and then I formulated a suggestion. I asked counsel for the consenting party if he would object to my meeting in private with Mrs. Jones to see if I could convince her to try mediation. He not only consented, he was strongly in favor of such a course of action. Mrs. Jones’s attorney also supported the plan to the point where he was willing to, and agreed on the record to, allow his client to meet with me in his absence. My secretary went about the task of scheduling an in-chambers meeting between myself and the truculent Mrs. Jones.
The appointed day finally came and I had some tea and biscuits brought into chambers. I arranged the furniture and made the environment as peaceable and homey as I could. When Mrs. Jones arrived, I gave her a friendly greeting and commented on her dignified appearance. We made small talk for a while, and then I began to ease into the topic. I gave a brief primer on mediation and told her that mediators are trained professionals, like judges, but they have a different process. They are trained to be a neutral negotiator in communications between the parties to the dispute. They go back and forth, they facilitate mutual understanding between the two sides; they clarify the issues in contention; they try to understand the disclosed and undisclosed interests of each party; and then they go about the task of identifying options for resolving the dispute. Those options are often far beyond the resolution possibilities the legal system provides to a trial judge.
Mrs. Jones listened unflinchingly, and then responded. “No way, no how. Not now and never. I will have my day in court.”
I sank back in my chair and shifted gears. I talked about the expense of going to trial as opposed to the relatively low cost of mediation. I explained that the parties decide how to resolve the problem instead of handing that power over to a judge. I talked about how mediation might result in a solution to the problem that might ease the tension between the two branches of the family.
Mrs. Jones listened politely, and then responded. “No way, no how. Not now and never. I will have my day in court, and I want you to decide my case.”
I sank back again and thought about the value of continuing on. Was she really resistant to the point where I was just banging my head against the proverbial brick wall? I decided to make one last gasp effort. I determined that I would use a finely honed, but extremely rarely used tool in my judicial toolbox. I asked her, “Please Mrs. Jones, won’t you just try this once, for me, please?” That’s right, I begged. I beseeched her to try mediation; for me.
The hard veneer melted and her face softened. The personal entreaty worked, where logic and reasoning had not. She responded and said, “OK judge, if you really want me to do this, I’ll do it–for you.” My sigh of relief was surely audible.
I assigned the case to the best mediator available, who conducted a one-day mediation. The trial estimate for this case, number six in the series of cases, had been two weeks. In the mediation, the mediator was able to resolve this partition lawsuit. She also resolved lawsuit number seven which had been waiting in the wings. In addition, she extinguished any grounds over which the branches of the family might seek to litigate in the future by getting one side to buy out all the mutual business interests binding them to the other. By doing so, she insured that lawsuits 8, 9, and 10 would never come about, and might have tilled the soil for the growth of new familial relationships.
Each of the committee members were impelled by similar circumstances, and after years of planning and preparation, thanks to the judges and attorneys who toiled away in that development process, the Santa Barbara Superior Court’s CADRe Program (Court Administered Appropriate (or Alternative) Dispute Resolution Program) began operation in July of 1999. In 2005, Judge Bill McLafferty worked with affected persons to develop the CMADRESS (Case Management ADR Early Settlement Session) refinement to those court processes. A visit to the court’s website will apprise the reader of the intricacies and success levels of these once innovative programs.
When the court incorporated ADR into civil case processing early in the litigation game, it created multiple avenues for the litigants to choose from in their effort to get to resolution. It gave its imprimatur to methodologies of case processing that are less costly, less time consumptive, and less stressful than litigation and trial, and which have the potential to draw a resolution from a broader range of possibilities. Creating those options for the court’s user community has had no down side, and has had many beneficial impacts on the consumers of court services.
It also has had many ancillary positive impacts on the court and its staff as well. The earlier that cases are resolved the fewer the number of calendarings, the more paper is saved (or time making computer file entries), and the less the stress upon the judicial officer managing the case. Ultimately, it is not only true that other (alternative) methods of resolving cases may be better than litigation; it is the case that litigation is the worst way to resolve some of the disputes that find their way into our courtrooms. ADR has found a permanent home in the Santa Barbara courthouse.
Operating a business is a lot like operating a complex machine. The moving parts of a business involve all kinds of people and relationships. Simply by the nature of that complexity, at some point the machine may break down, that is, there may be a dispute between parties. The dispute might involve a client for breach of contract, or it might involve a vendor for property damage resulting from a broken lift, or it might involve employees engaged in a workplace conflict, or a zillion other possible issues.
Regardless of the issue, if the dispute can’t be resolved the parties may turn to the legal system for relief and, eventually, someone is likely to prevail. But at what cost? In litigation, and even arbitration, it’s typically a huge cost. Both processes are expensive, and in more ways than just dollars.
For the parties, then, the challenge becomes how to resolve a dispute without investing heavily in the process. One answer is mediation, a process of negotiation facilitated by a neutral third party that offers four valuable cost savings:
1. Financial Costs
Financial costs are about the dollars. In litigation and arbitration the numbers add up quickly, including attorney hourly fees, court fees, deposition fees, the costs of hiring expert witnesses, and so on. The list is potentially endless, and unless a party prevails in the action and is awarded legal fees, those costs are going to make a big dent in the wallet or bottom line.
Mediation, on the other hand, is a far more abbreviated and informal process. It’s an opportunity for the parties to think forward about settlement, rather than draining cash to prove the past. Ultimately, a mediated settlement is a small fraction of the financial costs of litigation or arbitration. And with a voluntary, mutual agreement in hand, the party obligated to pay money or turn over property is much more likely to comply than if ordered to do so by a judge or arbitrator. This puts assets back in the receiving party’s pocket without having to spend more dollars chasing down enforcement of a judgment in court.
2. Opportunity Costs
Opportunity costs are often the “hidden” costs of litigation and arbitration. If you’re spending time and resources doing battle with another party, you’re not spending that time and those resources building your personal life or business. You’re basically passing on new opportunities in order to endlessly pursue a “win” in court.
Here again, because a business is like a complex machine, it may not be practical to think breakdowns — disputes — can be completely avoided. But it’s the decisions that are made after the dispute arises that determine the opportunities lost as a result. Litigation or arbitration can take months or years to bring to closure while parties in mediation can find resolution in days or weeks. The difference in potential lost opportunities between the two scenarios is quite measurable. It’s far more cost effective to take that measurement at the starting gate rather than halfway or further around the track.
3. Relationship Costs
The pursuit of litigation or arbitration doesn’t just cost dollars… it also costs relationships. It’s difficult to put a value on relationships, but frayed or destroyed relationships can be devastating to individuals and businesses. By design, the court system’s resolution process places parties in opposition until someone emerges victorious. A do-what-it-takes mentality prevails and each side spends its time posturing, maneuvering, and attacking the other. The chances are next to nil that the parties’ post-dispute future will include profitable business contracts, or productive workplace relations, or important customer retention, or any other contact.
Not infrequently, the opportunity exists through mediation for parties to reach resolution without burning the relationship bridges. With the focus on settlement, the parties work cooperatively and creatively to find answers. Even where the parties don’t have the need or desire for ongoing relations, just being able to communicate in a non-adversarial setting makes it far more likely a mutually satisfying resolution will be reached than if redress is sought in the courts.
4. Emotional Costs
While some people appear to enjoy conflict, maybe even welcome it, most would prefer to avoid it if for nothing else than the emotional costs. Litigation and arbitration carry high emotional costs. The processes are long and drawn out, more decisions have to be made, a larger number of dollars have to be spent, greater resources have to be utilized, and everyone’s laundry will probably be aired out in an open, public forum. Uncertainty, a major stress inducer, is like a constant companion. No one knows what’s going to happen in the courtroom, even when a party thinks it’s a “slam dunk” case. Stress levels increase from day one of a dispute, and keep trending upwards until full case resolution is achieved.
Mediation, on the other hand, is a confidential, private and comparatively brief proceeding, offering parties the opportunity to minimize their emotional costs. The sooner resolution can be achieved, the less stress the parties have to endure… and that’s a big plus for personal health, family life, and work productivity.
So when the “business machine” breaks down, mediation can be a good option for getting it fixed. At the very least, the four cost savings identified here should factor into the analysis of how to proceed. In the end, statistically speaking, less than 10% of civil cases actually make it to trial; they settle at some point before going to a judge and/or jury. With litigation or arbitration, the parties leave the cost faucet on for months or years until the almost inevitable settlement disposition takes place before trial anyway; with mediation, the faucet can be turned off quickly, and the parties can get back to the business of doing business.
Los Angeles Attorney Mediator Mark Lewis is the principal of The Mark Lewis Firm and a panel member with the Agency for Dispute Resolution. Mark provides mediation services for businesses, individuals, and community organizations.
As 2014 draws to a close, I have had some time to reflect upon the year that has passed and some energy and space to make way for another year to come. When I am not mediating, I am often found aboard our sailboat, aptly named “Time Out” and pictured here. Although it has been too cold and windy, even in Southern California, to cruise off shore to Catalina Island or down the Coast this week, we did enjoy some winter sailing in Santa Monica Bay yesterday. After a jam-packed week of mediating disputes, following up with clients, writing, lecturing, attending Bar events and preparing for my next week’s cases, I consider my “Time Out” on the weekends to be an essential way to gain perspective on the week that has preceded me and clear my thoughts and de-clutter in order to be prepared for the next week.
In conflict, too, any parent knows that there is a value in taking a “time out” when a child needs a little distance and some down time before he/she can go on productively in whatever is causing the issue of the moment. In sports, too, there are moments where a referee blows a whistle and calls a “time out” so that the teams and their coaches can re-group and sort out whatever conflict may not be able to be resolved during the game’s play. So why not in mediation? Is it worth calling a “time out” on occasion? Shall we consider carrying a whistle in our tool box at every hearing?
For me, the metaphor works in my life as a mediator. So I want to take this moment to express my gratitude for the friendship and support and fellowship you have given to me over the past year and wish you a hearty and sincere “Cheers” for a wonderful, thoughtful, prosperous and meaningful New Year!