On Saturday, March 19, 2016, the Southern California Mediation Association held a Town Hall on two topics: mediator certification and mediation confidentiality. It is the latter that I wish to discuss. The Supreme Court of California has repeatedly held that mediation confidentiality as set out in California Evidence Code Sections [Read More]
As a mediator, I have often had a party tell me that she will not settle on the terms proffered because, “It is all about principle!” I take this with a grain or two of salt because I have learned that if the other party becomes sufficiently generous in the [Read More]
As we all know, there is quite a bit of subtlety involved in every negotiation. While each party is outwardly stating her perspective or views, each is also communicating a lot by what is not being said, or by what is being implied. Sometimes, these subtle communications get lost because the [Read More]
In 2006, the American Bar Association issued an ethical opinion- ABA Formal Ethics Op. 06-439 entitled A Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Negotiation. At issue was whether an attorney has to be as truthful in a caucused mediation as she is obliged [Read More]
Once again, the Ninth Circuit has sidestepped discussing the contours of mediation confidentiality in federal lawsuits based on diversity jurisdiction. In an unpublished (and thus not having precedential value) Memorandum (Milhouseopinion ) affirming the trial court judgment, the appellate court held that Dr. and Mrs. Milhouse waived their claim of mediation confidentiality [Read More]
In last week’s blog, I mentioned one paradox (competition and cooperation) discussed by Bernard Mayer in his book, The Conflict Paradox (ABA and Jossey-Bass, 2015). A second one is avoidance and engagement. Like the first paradox, on superficial glance, avoidance and engagement appear to be polar opposites. But, upon deeper [Read More]
In any negotiation training class, the concepts of “distributive “bargaining and “integrative” bargaining are invariably discussed. The former is viewed as a form of “competitive” bargaining in which for every gain that one party makes, the other party loses. It is a “zero sum” game in which a “fixed” pie [Read More]
Two developments occurred regarding mediation confidentiality during the first week of February. First, on Monday, February 1, 2016, the Ninth Circuit Court of Appeals heard oral argument in Craig Milhouse v. Travelers Commercial Insurance, Case Nos. 13-56959 and 13-57029. Dr. and Mrs. Milhouse suffered the total loss of their home [Read More]
