The Four-Word Solution to Most of Your Conflicts

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Most of us try to avoid conflict. It portends confrontation, is uncomfortable at best, and is horribly violent at worst. What if SOME of the conflicts you have could be productive and leave you feeling relieved? I have an idea.

Even though we try to avoid conflict, we experience it every day. Around the globe, at work, in the boardroom, among family members. Here are some tools to use to resolve conflict constructively. You may be familiar with them, but I offer a simple approach, even a handy list at the end.

Resolution can provide the relief and personal calm we all crave. You have to recognize two things: (1) try as you might, you cannot control others, and (2) you can control your own perspective, reactions, and anger.

I will tell you the four words, but not yet.

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Convenient Scheduling and Mediating

Our new online calendaring system has helped streamline the process of booking a mediation. Instead of losing time playing phone tag, you can check Rande’s availability on our website,, and click on Scheduling. You can hold dates and book mediations on the same calendar once counsel have agreed on a date. (Rande also can help if you’re having trouble agreeing on a date.)

Until the stay-at-home order ends, you have only one choice for location – Videoconference. The mediations we have conducted so far via Zoom have proceeded smoothly. We help ensure that everyone is comfortable with the technology before the mediation.

Happy participants range from tech-geek lawyers to tech-resistant lawyers, to Rande’s 91-year-old Mom!

Los Angeles Daily Journal Profile of Rande Sotomayor – April 10, 2020

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If you are a Los Angeles Daily Journal subscriber, check out Rande’s profile on Friday, April 10, 2020 in the Verdicts & Settlements section. If you don’t subscribe, e-mail me at  if you want a personal-use-only copy of the profile. It was an honor to have been portrayed as a

mediator who “‘is exceptionally committed to striking a balance between opposing parties,’ as demonstrated by ‘her refusal to act as anyone’s cheerleader, her ability nonetheless to build positive relationships with all sides, and her dedication to following up until a resolution has been reached.'”

“Remote” Mediation – Not Just for Pandemics?

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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? 

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New Beginnings – Rethinking “Readiness” for Mediation

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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.

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Words Matter. Tone Matters. Get Results.

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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.

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Evidence Code Section 1129 – Are You Complying?

Check out my article in the August 2019 issue of The Advocate magazine on California’s Evidence Code Section 1129. You can read it online here  or download the pdf version.

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.

Rande Sotomayor is Inducted into the International Academy of Mediators

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.

Self-Determination in Mediation

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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.

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What’s in a Logo?

What’s in a Logo? May 2017

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.

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“Elements of Style”

Elements of Style

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.

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U.S. Department of Labor Sets New Rule for Handling ERISA Disability Claims

U.S. DOL Sets New Rule for Handling ERISA Disability Claims

DOL.12.16.Fact Sheet

Federal Register.ERISA.12.19.16

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.”

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Short Lives. Rich Lives.


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.
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With All Due Respect, Your Honor, . . . (Mediators Are Available to Everyone. Los Angeles County Does Not Have a Two-Tiered Justice System.)

With All Due Respect.16.09.02

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.

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Med-Arb: A Controversial Dispute Resolution Option

Med-Arb – A Controversial Dispute Resolution Option

“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.

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HOA Action to Enforce Mediated Settlement Agreement Is an “Action to Enforce the Governing Documents,” Providing Statutory Basis for Attorneys’ Fee Award

HOA Action to Enforce Mediated Settlement Agreement

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”).

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Mediation May Be Useful when Caring for Aging Family Members

Mediation when Caring for Aging Family Members

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.

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Looking for a Great Mediator?

Looking for a Great Mediator?

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.

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