Recently, I mediated a matter in which the defense representative did not appear in person but was available by telephone. Her attorney as well as plaintiff and her attorney were physically present. Prior to the mediation, counsel had agreed that the defense representative could be available by telephone as she [Read More]
On June 1, 2016, the California Law Revision Commission (CLRC) held its meeting in Sacramento and, as in the past, took up mediation confidentiality as the last item on its agenda. It spent approximately 2 hours discussing the topic. Prior to the meeting, Staff Counsel issued 4 memoranda on the [Read More]
With the fast approaching end of the United States Supreme Court’s 2015-2016 term, the Supreme Court has been (and will be) issuing a flurry of decisions. One of them caught my attention because unlike all of its other decisions, it did not decide the matter but rather suggested engaging in alternative [Read More]
A few weeks ago, some rulings of the Honorable Holly E. Kendig, Judge of Los Angeles County Superior Court, made the headlines in the local legal newspapers. Those rulings which among other things dismissed the case, were predicated on an earlier ruling which answered the question, “who is a mediator” and discussed [Read More]
A few weeks ago, I discussed the paradox of Avoidance and Engagement as discussed by Bernard Mayer in his book, The Conflict Paradox (ABA and Jossey-Bass, 2015). I cited the use of mediation as an example of this paradox. Parties engage in mediation to avoid further litigation or prolonging the [Read More]
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]
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]
