Self-Determination in Mediation

Self Determination in Mediation

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.

Take the example of a recent international business case I mediated, involving allegations of breach of fiduciary duty, misappropriation of trade secrets, wage and hour issues, and defamation. The manager who had been fired had worked with the company for over 10 years. It was a family owned business, and the owner entrusted the operation of the company to this young protégé. The mutual allegations of mismanagement, unfair competition, fuzzy accounting, and under-the-table dealing would be daunting to prove. The parties and lawyers decided to mediate six weeks before trial.

The lawyers agreed to exchange briefs simultaneously in advance. (That rarely happens, until everyone actually arrives at the mediation, when most seem to hand over their briefs without worry.) Not only did that save tons of time, but in this case, it got the parties thinking about what lay at the heart of the lawsuit and what they really wanted.

The parties struggled to assign a monetary value to the case, highlighting what everyone had come to realize were the key issues – personal disappointment, possible financial devastation, and above all, a sense of betrayal. I received entirely mutual, yet independent, requests for the two principal parties to meet one-on-one.

The meeting lasted three hours. The lawyers, other parties, and I sat around trying hard to create value with the time. I asked one of the attorneys to start drafting a settlement agreement. I was very optimistic

that the principals were developing a solution. I was sure they were looking for reconciliation, not money, even though the legal and factual issues involved money.

I was wrong.

The principals emerged from their meeting with no deal and as much mistrust as they had at the beginning. But – apparently having gathered as much information as possible insofar as they had not even spoken in over a year – they were ready to start exchanging financial settlement offers. That was progress.

The mediation went late. We finally had agreement on a settlement number, but the deal nearly fell apart over the payment terms. More mistrust. Finally, the deal was struck. I could tell that both parties had learned enough about the other – and more importantly – about themselves, that the deal that had been reached reflected a genuine desire to wipe the slate clean, learn from mistakes made, and move on.

This was a paradigm case of mediation setting the stage for the parties to take control of the outcome of their dispute and to clarify and define the future of their relationship..

What did the parties pay for that day? A process that allowed intractable parties to meet in a confidential setting in which their discussions could not be used against them, to gather information of mutual benefit, to reflect on a longstanding personal and professional relationship, and to settle all disputes between them. I think that’s a lot of value.

Do Arbitrators and Mediators Have “Clients?”

Do Arbitrators and Mediators Have Clients PDF

In the context of business mediation, I am often asked, “Who do you think are your clients?” This question cuts to the heart of competing and ethically challenging interests in a business mediation.

Lawyers in general face the potential conflict between their own monetary interests and their clients’ interests in having their problem fixed and settled as quickly and inexpensively as possible. They want repeat business from their clients, so they are sure to do what it takes to keep them happy. Mediation lawyers question whether arbitrators and mediators similarly feel beholden to those lawyers who, hopefully, will hire them again and again for business dispute resolution. Continue reading

California Supreme Court Holds that a UCL Action May Be Based on Conduct that Allegedly Violates Both the UIPA and Other Statutes or Common Law

In a long-awaited decision on the interplay between California’s Unfair Competition Law (“UCL”) (Bus. & Prof. Code, § 17200 et seq.) and the Unfair Insurance Practices Act (“UIPA”) (Ins. Code, § 790 et seq.), the California Supreme Court today issued its ruling in Zhang v. Superior Court, Case No. S178542 (rev. granted 2/10/10). The opinion appears at the following link: Zhang v. Superior Court, Case No. S178542 (rev. granted 2/10/10)

The Supreme Court held that the case of Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 304, “does not preclude first party UCL actions based on grounds independent from section 790.03, even when the insurer’s conduct also violates section 790.03.” (Slip Op. p. 2) The decision is limited to the first party context. (Id., p. 2, fn. 2) Continue reading

Voluntary Dismissal without Prejudice Triggers Trial Court Discretion to Award Expert Witness Fees under C.C.P. Section 998

On July 23, 2013, in the case of Mon Chong Loong Trading Corp. v. Superior Court (2013 WL381168), the California Court of Appeal held that a voluntary dismissal without prejudice following a Section 998 offer that was not accepted triggers the cost-shifting provisions of California Code of Civil Procedure Section 998.

In this case, the plaintiff slipped and fell at a supermarket and sued for negligence and premises liability. Defendant made a Section 998 settlement offer. Plaintiff did not respond to the offer, did not appear for an independent medical exam, and did not exchange expert information. Just before trial, plaintiff filed a voluntary dismissal of the action without prejudice. Continue reading

Problem Solving

When is the last time you thought everything was perfect? Never, right? Inevitably, things don’t always go your way. Or, there are always obstacles to be overcome. Or, people just don’t see things as you do, and, of course, they’re wrong. Why don’t they just see things the right way?

It has taken me a lifetime to learn how to see things from all angles. Most of those different perspectives are simply reflections of people’s differing agendas, especially when people don’t even believe that they have agendas, or, in reality, needs. Continue reading

Communication Creates Power

Have you ever listened to a phone conversation between two individuals and wondered, “How long will it take these people to figure out that they are talking about totally different things?”

In this day of expanded communication, it seems that more than ever, people do not communicate effectively, often leading to misunderstanding and conflict. I suspect it is a matter of hearing what you want or expect to hear, and acting and reacting accordingly. Sometimes, people simply do not understand each other, and for one reason or another, do not seek clarification. Continue reading

How to Get Value from Your ERISA Mediation

ERISA benefits litigation is by and large a streamlined form of litigation that involves an expeditious trial usually based on the administrative record, with no witnesses. Lawyers who do this kind of work are sensitive to the factual nuances of ERISA benefits cases and the risks posed by taking chances before the district or magistrate judge.

Most of these cases are either settled by the lawyers themselves or in mediation. The lawyers and parties are usually very well prepared, but it is usually the plaintiff’s first and probably only experience with the process. Therefore, the process must address the discomfort that the individual plaintiffs experience, even if the setting is much more informal than the courtroom. Continue reading

What Is the Difference between Mediation and Arbitration?

People often ask me what the difference is between mediation and arbitration. Both are among the most common forms of alternative dispute resolution. These “alternatives” avoid the more expensive and time-consuming method of resolving disputes in court.

Mediation is an informal proceeding in which a third party neutral, the mediator, works with the parties, and their attorneys if they have them, to facilitate a settlement of the dispute. The mediator does not make any decisions about the case. Continue reading