Mediation is a human-centered process of resolution. Whether the party is a giant corporation or a single individual, problems arise and are resolved through people. The emotional connections, relationships, and trust that are the basis for any deal usually demand in-person contacts.
But this is 2020, and business has decentralized, internationalized, and exploded into the “cloud.” People enjoy new freedom to work remotely from anywhere. Business travel is expensive and time-consuming.
We have been using technology in mediation for a long time. Briefs are mostly e-mailed. Large exhibits are shared through cloud storage services like Dropbox. Participants bring PowerPoint presentations on flash drives. Settlement agreements are generated, transmitted, and often signed electronically. So far this is the technical end of the mediation. What about the vital human connections that make or break the process?
The Chinese Lunar New Year begins on January 25, 2020. This is a Year of the Rat. As the first animal in the Chinese zodiac, the Rat is associated with cleverness, success, energy, wealth, wellness, and overall renewal.
You might see this as a great year to really bring your New Year’s Resolutions to fruition. I think it is a great year to rethink your approach to mediation. These days, mediation looks more and more like litigation, the risky, adversarial alternative that mediation is intended to avoid.
In the world of 2020, “preparedness” for the risks of damage from natural, technological, and political disasters is at the forefront of many people’s minds. Preparedness is about being ready to withstand attack or adversity. Preparation includes things people do to get ready. Being “prepared” for mediation requires doing a lot of things and being ready for the adversity participants will have to contend with in negotiations.
I just returned from the 15th ICC International Commercial Mediation Competition among law and business students from around the world. Held each February in Paris, it is a mediation negotiation and advocacy tournament in which teams of two students serving as client and attorney try to “win” the mediation session and advance until the remaining two teams face off in the final “match.” The scoring is based on criteria including effective Opening Statements, Advancing Your Interests, Teamwork between Counsel and Client, Information Gathering and Ascertaining the Other Party’s Interests, Seeking to Collaborate with the Other Party, Working Together to Develop Options, and Making Good Use of the Mediator.
The new section requires attorneys and their clients to sign a printed disclosure of mediation confidentiality restrictions, including the fact that even private attorney-client communications cannot be used if the clients sue for malpractice. While this new “consumer awareness” law imposes an uncomfortable burden on attorneys, it hits a home run in protecting clients, protecting attorneys, and upholding California’s commitment to strict confidentiality in mediation.
You can download a Word version of the required disclosure form from the Procedures page of this website by clicking here.
On May 30, 2019 I enjoyed the great honor of being inducted into the International Academy of Mediators. Click here to read the announcement. When the best in the world think you’re a valuable contributor to the profession, the feeling of gratitude and confidence in what I do is profound. There is nothing better than being accepted and celebrated by those who set the highest bar.
On April 18, 2018, the Daily Journal published my article comparing the forces of destruction and creation in the 856-year history of Notre Dame to similar forces in the cycles of litigation and mediation, and in the ways that advocates participate in the processes. Click here for the online version or download the PDF version.
Parties and lawyers involved in mediation – and to a large degree mediators themselves – often pay lip service to the theory of self-determination that underlies the process. In fact, many cases demand (and most lawyers hope for) a mediator who can “beat up” both sides to hammer out a deal.
I am continually uplifted by the wisdom parties often demonstrate if given the chance to participate meaningfully in the mediation process. In the United States, parties often play little or no role in mediation; they sit there silently, glad not to have to say anything, and relieved that their lawyers can do all the talking for them. Usually I encourage the lawyers and parties to engage in a joint session, and usually I face strong opposition to that part of the process. The joint session develops useful information and provides the opportunity for the clients to preview their opponents and the lawyers, and get impressions of how the stories will play in court.
Usually everyone is pleasantly surprised at how useful a joint session turns out to be. But not every case is the “usual” case. In fact, every case should be treated as unique, and so mediation must be tailored to the situation. That means that sometimes, the process is re-ordered or a joint session takes a different form.
In 2010, when I opened my mediation practice, I was excited about selecting a logo to help “brand” my business. I was transitioning from what was principally a litigation practice to the business of helping parties make peace. At the printing shop, the owner placed before me a GIANT book of symbols; it was probably three inches thick. While I fanned through the pages, one caught my eye:
I couldn’t take my eyes off of it. It seemed to represent everything that I confront, manage, and strive for in mediation: paths that diverge yet come together, a central core, opposing images and tracks, balance, equality, closure, beautiful symmetry, simple elements, complex interactions, and even a gift. To me, the gift is one of resolution and peace.
Last week I attended a memorial service for a 61-year-old businesswoman, wife, and mom. I didn’t know Tamara well, only through my chamber of commerce, but she touched me gently and deeply whenever I saw her. So much about the service, and her, was unforgettable.
It turns out that Tamara was a local icon of sorts, a business leader and visionary grounded with compassion, common sense, and humility. The speakers at the ceremony all hailed her many talents, but the funny thing was that there were so many stories about her fashion sense, or rather, her lack thereof.
As an owner of an in-home care service for seniors, Tamara wore a uniform of sorts – everywhere. Every speaker at the service described her regular outfit – a modest, crisply ironed button-down blue shirt with company logo and ¾ length sleeves, business slacks, and “sensible” shoes. Everyone, from the pastor to her colleagues to her family, couldn’t help but comment on Tamara’s lack of style.
One non-profit director told of dressing as Tamara’s twin for three monthly meetings in a row, but she lamented that her outfit never seemed to quite match up and nobody even noticed the joke.
Like it or not, the new DOL Final Rule amending the disability claims handling and appeal procedure at 29 C.F.R. §2560.503-1 will work a significant change in the administration of ERISA-covered disability claims. The Department of Labor states that these procedures largely parallel those used for group health benefit claims under the Affordable Care Act. The Rule became effective on January 18, 2017 and applies to all disability claims filed on or after January 1, 2018.
The preamble to the rule – which is an interesting historical overview and summarizes many comments that were submitted in response to the first version of the rule – states:
“Even though fewer private-sector employees participate in disability plans than in group health and other types of plans, disability cases dominate the ERISA litigation landscape today. An empirical study of ERISA employee benefits litigation from 2006 to 2010 concluded that cases involving long-term disability claims accounted for 64.5% of benefits litigation whereas lawsuits involving health care plans and pension plans accounted for only 14.4% and 9.3%, respectively.”
Life is short. Some short lives are longer than others. Some short lives are full of love, good health, happiness, and fulfillment. Some short lives are troubled by countless struggles, tragedies, and suffering. Of course, most of our short lives are a mix of it all.
I visited Vancouver last week for a mediation conference. Every time I attend this particular conference, my world expands with greater knowledge and insight. The job of a mediator is to help people resolve conflicts. Conflicts are consuming – they eat up valuable chunks of our lives and business. And so we search for solutions that preserve resources and save time.
Which brings me back to my focus on our short lives, and how my first visit to Vancouver will forever influence my perspective on how I use my time and what I value.
Yesterday, I read with great distress the Op-Ed piece written by Judge Michael Stern in the Los Angeles Times. The apparent purpose is to convince California legislators to appropriate more of its budget to the Los Angeles County court system. However, Judge Stern argues that the budget cutbacks have resulted in “a two-tiered judicial system; a speedy private one for the rich and a protracted public forum for the less advantaged.”
Playing the haves-and-have nots card is usually a reliable way to generate passion these days. But the picture Judge Stern has created is faulty – like a trompe l’oeil painting – because it is based on the questionable assumption that an adjudicated result is the only “fair” result and a fuzzy description of dispute resolution options available to the public at large.
I think everyone would probably agree that the Los Angeles County Court system is backed up and vital resources have been lost as a result of budget cuts. I completely disagree that the backup has created a good system for the rich and a bad system for the poor.
“Alternative dispute resolution” traditionally has been viewed as any of a variety of dispute resolution methods that are alternative to the default of filing a lawsuit in court. Most people immediately think of arbitration as the main “alternative.” Mediation is now more commonly considered as well, at least in the United States.
However, there are many “alternatives,” including a hybrid concept that is getting more attention these days, known as “Med-Arb.” In this process, the parties agree to begin with mediation, but if they reach an impasse, will proceed to arbitration conducted by the same neutral who acted as the mediator. On the surface, this seems like a good idea, at least from the parties’ viewpoint. But when you start to think about it, in California at least, the process can be fraught with risk, especially for the mediator/arbitrator hired to do the job.
“Binding mediation” is another term for “mediation-arbitration.” For example, the parties can agree that if they reach impasse, then the mediator – who then effectively becomes arbitrator – can decide on a final settlement amount within an agreed-upon range. (There are lots of options here.) If a “binding mediation” provision of an agreement is not sufficiently clear and detailed, then it will not be enforced. Lindsay v. Lewandowski (2006) 139 Cal. App. 4th 1618, 1620-1625.
However, if the agreement demonstrates that the parties agreed to a “binding mediation” process that is clearly defined, and a constitutionally and statutorily permissible method of resolving their dispute without trial, it will be enforced. Bowers v. Raymond J. Lucia Cos., Inc. (2012) 206 Cal. App. 4th 724, 728-737. The mediation agreement and subsequent mediation award will be enforced as a settlement under Code of Civil Procedure Section 664.6, not as an arbitration award.
Normally, we mediators encourage as much creativity as possible in working with parties to find solutions through their own self-determination. The more they “own” the solution to the dispute, the more durable and sustainable it will be.
At its philosophical heart, the concept of “med-arb” is inherently contradictory, nullifying the voluntary nature of mediation. Essentially, the parties are saying, “We’ll do our best, but if we can’t agree, then we’ll let you, the mediator, decide how we should settle our dispute.” It may seem like a rush to give up.
It’s always about the attorneys’ fees, and who pays for them when legal disputes arise, isn’t it? Many statutory schemes are designed to treat negotiation and mediation as the primary mechanism to resolve disputes. The approach keeps costs down, and it also achieves quick resolution in many kinds of disputes, including those involving condominiums and other common interest developments. In California, these entities and their members depend on the dispute resolution provisions of the Davis-Stirling Common Interest Development Act, Civil Code §§ 5850-5985 (“Act”).
Last week I attended a fascinating seminar for adult children of aging parents given by my colleague Carlos Arcos, Esq., an elder care planning attorney. The need for this kind of advance planning became powerfully obvious in light of the countless legal issues, public benefits issues, insurance issues, real estate questions, and financial risks associated with natural decline and death in today’s world. Planning for your own care or care for a family member or friend when your health declines or you become physically or mentally incompetent to care for yourself can make the difference between preserving assets and losing everything.
Families are not always harmonious. This is one area in which the grass always seems greener in someone else’s family. Most families have some degree of discord, and money often brings out the worst in people. Family members often harbor lifetimes of resentment that tends to surface when aging parents need expensive or time-consuming care, when they may disagree about their competence, or when they die and leave assets in proportions their heirs consider to be unfair.
There are many factors that go into the selection of a mediator. In addition to objective qualifications such as track record and experience, there are personal qualities that can make a crucial difference between an effective mediation and a disappointing one.
I’ve spent a lot of time with other mediators lately. There have been conferences, social events, study groups, the ICC International Commercial Mediation Competition in Paris, partner presentations, and so forth. I’ve discovered a lot about the qualities of great mediators.
You’ve selected your mediator, and the mediation session is scheduled for next month. Preparing for mediation as thoroughly as possible is the key to achieving the best possible outcome. Where to begin?
1. You need a mediation plan. The plan will help you organize your preparation and deepen your understanding of the case. Your plan should consist of:
a. Determining your client’s and your own goals and objectives.
b. Identifying your client’s and your own true interests underlying the goals and objectives.
c. Developing a strategy for achieving those goals and objectives. Distinguish between needs and wants.
d. Considering various approaches at the mediation, both procedurally and substantively.
e. Realistically determining your alternatives if you cannot reach an agreement through mediation.
f. Considering the other party’s and counsel’s likely true interests as well as the other party’s likely alternatives if no agreement is reached.
California litigators know that cases must be brought to trial within five years or face mandatory dismissal. (C.C.P. Section 583.310). Time periods when “prosecution or trial of the action was stayed” or when bringing the action to trial was “impossible, impracticable, or futile” are excluded from the five-year calculation under C.C.P. Section 583.340.
In another decision throwing parties’ efforts to mediate under the wheels of the five-year rule, the California Supreme Court decided that a trial court order striking a trial date and staying the action following the plaintiff’s agreement to the defendants’ request to engage in mediation and complete outstanding discovery did not operate to toll the running of the five-year period. According to the majority, the “mediation stay” did not amount to a sufficiently complete stay or render the prosecution of the case impossible, impracticable, or futile to effect tolling. Gaines v. Fidelity National Title Insurance Company, et al., S215990 (filed 2/25/16)
The ICC International Commercial Mediation Competition in Paris showcased many different approaches to business mediation and negotiation even within the predetermined format and criteria for performance. Even when cultural differences were insignificant, the mediations often turned in unpredictable directions depending on different personalities and negotiation techniques. This was an excellent demonstration of the many permutations of power play.
The ICC Competition Final at the Maison du Barreau was the perfect example of power play at work. The auditorium was huge, the stage bathed in spotlight. Hundreds of spectators anxiously awaited the final match between the University of New South Wales (Australia) and the University of Auckland (New Zealand). There were no significant cultural differences between the teams.
All of the spectators had access to the details of the conflict – a dispute between a celebrity baker and party planner-to-the-stars over a wedding cake disaster that occurred when the industry-changing icing jointly developed by the two slid off of the cake at the party planner’s daughter’s wedding. Both parties’ reputations, businesses, and cash flow were in trouble. Each sought money damages from the other.
Many of us often get caught up in our own way of doing things. In Southern California mediation practice, while there are often differences in process determined by counsel, party, or mediator preferences, most participants follow a pretty regular road to mediation in the first place. That’s because the prevailing experience at home is that either courts or a contract “force” everyone into mediation, with the effect of allowing all of the players to remain stalwart in their positions, at least at the outset.