Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.

At the end of our session, I suggested to a fellow mediator that all separate caucus mediation is inherently deceptive. He is a sophisticated practitioner and knew exactly what I meant. My husband - a litigator of 35 years who is also (newly) on the District Court's Settlement Officer panel - recoiled at the idea.

Here, for your consideration, is an excerpt from a lengthy discussion of the issue from the Journal of the DuPage County Bar Association -- Defining the Ethical Limits of Acceptable Deception in Mediation by JAMS mediator the Hon. John W. Cooley (Ret.) 

[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.

These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."

Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.

Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.

New Zealand mediator Geoff Sharp blogged on this topic under the rubric "noisy disclosure" recently, noting that

Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

See my own short post on mediator predictions and false signals here. 

 I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.

My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.

Your thoughts?

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Interviews with ADR giants: Mediate.com opens video archive for month of April

Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice

Mediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.

For description of the type of videos available, run right over to Diane Levin's blog by clicking on the title up top.

Thanks Diane for getting the word out about this.

For a taste of some of the offerings, watch this short video of Ken Cloke talking to Robert Benjamin about the evolution of conflict  over the lifetime of an individual as well as over the lifetime of a civilization.

Cloke is my mentor and his insights are just as useful to the settlement of commercial litigation than are some of the competitive negotiation skills I've learned along the way.  Check out all of Ken's videos.

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NB:  All names and situations altered to protect my own and my "opponents'" anonymity and to honor the confidential nature of the mediation.

This experience is going to take a while to digest.  First let me tell you what was GREAT about my recent mediation experience.

1. I hired an attorney who was a full-time, highly experienced mediator.
2. Because the mediation concerned a long-term contractual relationship with an emotional breach and immediate cessation of business, I choose a community mediator because I wanted someone skilled not simply in pressing the parties for compromise, but in  "transformative" (whole dispute) mediation (about which more later).
3. With two talented community co-mediators, I experienced the freedom of expression in joint session that confidentiality provides.
4. I learned how much courage it takes for all parties to face one another and talk about their own part in causing the dispute-creating series of events.  
5. I experienced the nearly invisible but critical support and encouragement provided by an "audience" (lawyers, mediators, insurance representatives) "schooled" "on the spot" in respectful listening.
6. Though the unguarded nature of my conflict-narrative and the pain caused by listening to my former partners' account initially felt like walking a tight rope without a net, as my story proceeded without interruption or apparent contempt from my "opponents" a great sense of comfort and freedom came over me.  I'm an old hand myself at creating an atmosphere of hope and safety so I didn't think that "trick" would work on me.  I found, however, that the mediators' ability to assure me of the confidential nature of the process and the benefits of frank discussion, enabled me to tell my truth, in as multi-dimensional, textured and admittedly fallible manner possible.  It amazed me -- as the client -- that so subtle shift in the atmosphere of the room would permit me to say, in all sincerity, that "though our experiences of the same series of events diverge wildly, I don't believe either of us is lying.  We've simply strung the facts together in a different way from opposing points of view."
7. The opportunity the co-mediators gave me to apologize for "my part in the dispute" while still  asserting the strength of my "position" that I would not be blackmailed, bullied or defeated, left me ready to settle or proceed without feelings of fear, shame, or anger.

To the extent I'll be able to tell this story (and I'm not certain I'll be able to until many years after its final resolution) the readers of this blog will be the first to know.

It's not magic.  It does, however, rest upon the mediators' wholehearted belief that human beings desire reconciliation as much or more than they desire money or the "stuff" that money provides.  It is premised on the elementary principle that the disputants would rather be happy than right.

Best advice to arise out of this session:  when you're mediating, hire an attorney-mediator to represent you just as you'd hire an insurance attorney if you had a dispute with your carrier.  One of the smartest decisions I've ever made.

Good resources for transformative mediation practice:

Institute for the Study of Conflict Transformation

The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition by Bush and Folger

Conflict Revolution, Mediating Evil, War, Injustice and Terrorism by Ken Cloke

Restorative Justice Online

Beyond Conviction (documentary on restorative justice in prisons)

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Excerpts from Kullar v. Foot Locker Retail, Inc. below.  Comment will follow.

[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.

[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 157-158.)

Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.

                           *                           *                      *

Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.

We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.

By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.

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by Guest Blogger Brian Herrington

Don’t Agree To Mediate Too Soon In The Litigation

The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can "win."

Let’s take a drug case in which the drug causes a signature disease that only has 3-4 causal connections.  Until the defendant knows my client’s medical history and definitively understands that the only causal connection present in my client’s case is the drug at issue, the defendant cannot fully appreciate the strengths of the plaintiff's case, leading to an unbridgeable divergence in the two sides' valuation.  On the other hand, if I’ve not yet conducted adequate discovery to learn that the drug didn’t contain the offending agent until after my client quit taking the drug, then I’m going to waste my time – and everyone else’s – by asking for 7 figures.

If the attorneys are making arguments that sound like summary judgment motions during a mediation, both parties are wasting their time. No one should proceed to mediate before they know what they  agree on and what they disagree.  Ideally, the parties should agree upon as many facts and legal issues as possible before sitting down to negotiate settlement. 

Make Sure The Money Person Is There

I will no longer attend a mediation unless the individual authorized to write the settlement check is present.   None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only.  It’s much easier for an adjuster or other money person to hold tight at a number when he/she doesn’t have a plane to catch. In fact, one of the first things I ask the corporate representative at a mediation is, What time is your flight?  This information usually tells me volumes.

Make Sure The Mediator Knows Who to Talk to Before the Mediation Begins

Assuming there’s only one plaintiff and one defendant, there are no less than four parties that the mediator may need to direct his/her attention to: (1) defense counsel (2) the corporate representative of the defendant (3) plaintiff’s counsel and (4) the plaintiff. In any given litigation, one or more of these parties could be the source of impasse. Usually my clients are very well-oriented on where we need to be money-wise heading into mediation. The occasion does arise, however, when I need the mediator to help me help my client understand that his or her expectations of recovery are unrealistic.  On those occasions, I instruct the mediator confidentially that my client needs a little reality testing if the case is going to settle. 

All of us sometimes have unrealistic expectations.  I certainly can, as can  defense counsel or the corporate representatives.  The point is the mediator needs to know who needs to be talked to a little more than the others. I encourage any mediator with whom I work to accept confidential settlement letters. In these letters, I mention which parties I think might be barriers to settlement.

If you have a mediator who only talks to the lawyers, you’re probably in for a long and unsuccessful day. Or, given the situation, it may be the clients who are being hard-headed. In these instances, the mediator needs to talk right past the lawyers and speak directly to the clients. As a plaintiff’s lawyer, I won’t deal with a mediator who won’t talk directly to my client or the corporate representative.

The lawyers' job is to represent their clients and the mediators job is to bring the lawyers together. If the lawyers are in the way, the mediator needs to ignore them for a while and deal directly with the clients.  Ensure that the mediator you’ve agreed to will do this.

Before The Mediation Set A Time Limit For Real Progress

This last point is something that I’ve only started employing in the last few years, and it’s worked wonders. In a courteous and professional tone, I inform defense counsel that if we’ve not made sufficient progress by a certain time or within a certain number of hours – usually 2-3 – then I will leave.  What constitutes “sufficient progress” is case-specific, and you’ll know it when you see it. I give this caveat to defense counsel so that there’s no misunderstanding at the mediation. If, by all reasonable measures, my case is worth 7 figures, I’m not going to spend 6 hours trying to get to 6 figures. I simply will not let that happen to me anymore.

By informing defense counsel ahead of time that I won’t stay more than a couple of hours unless I see real progress, I’ve managed to avoid many of the lowball offers that usually start the defense side of the mediation. Or, if I get a lowball offer, the numbers start increasing once I remind the mediator and defense counsel that I will leave if substantial progress isn’t made.

Of course, this point applies equally to plaintiff’s counsel. I can’t start off at $10 billion dollars like Dr. Evil with a law degree. I make sure that my offers are within reason so that I can be justifiably indignant if defense counsel starts playing games with the offers.

One Size Does Not Fit All

As I said at the beginning, there is no foolproof way for the plaintiff lawyer to approach mediation. There are numerous approaches and many depend on the parties involved. These are some of the broad categorical approaches that I take and they’ve worked for me.  I hope that you find them useful as well.  Happy mediating.

About The Author

Brian Herrington is the founding partner of Herrington Law, PA in Jackson, Mississippi. Licensed in Mississippi and Tennessee, Brian litigates consumer class actions, cases involving defective drugs and medical devices, and personal injury cases all over the country.

You can obtain more information about Brian's practice by going to Herrington Law PA’s main website here. Brian blogs on numerous issues relevant to litigation at Mississippi Consumer Lawyer here.  You can also follow Brian on twitter at twitter.com/brianherrington.

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I note today that yesterday's post was . . . . well . . . a little snippy.  

Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.

First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.  

Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number.  Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.     

Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:

• there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
• the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
• the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
• there is such a thing as an "objectively bad settlement" that a judicial officer would be  equipped to detect and remedy; 
• money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
• judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.

Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.  

Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible. 

• money is not the only reason people file suit nor the only basis for their decision to settle it;
• whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
• though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
  • a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
  • the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
  • the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice; 
  • party desires for revenge; and,
  • party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.

Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?

• a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
• the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
• garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
• a claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the  high speed blow-out of an allegedly defective tire; and,
• family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another. 

What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem.  The adjudication system is not working well for the people it was designed to serve.  The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.      

That's why I'm calling for a LegalTED Conference.  And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of  the Steering Committee.

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(image from and links to HOA Issues Solved in Five Steps)

I've recently been covering mediation confidentiality from an attorney's point of view.  Because my statistics page reminds me that clients also read this blog, I sometimes direct posts to the people with the problem -- clients.  

This morning I notice that someone landed on my site seeking an answer to this question:

What can you do if your HOA Board member breaks the mediation confidentiality agreement.

The lawyerlike answer to this question is  -- "it depends upon what the agreement says." 

But let's assume the question is covered by California law.  

The Scope and Effect of Mediation Confidentiality in the Hands of Clients

Nearly every mediator begins every mediation session by explaining how and why information exchanged in mediations is confidential.  I know from my community mediation work that the people usually want to know something lawyers rarely ask -- whether they'll be able to discuss what happened in the mediation with friends or family.

In the absence of a more restrictive agreement among the parties, under California law today, the answer is "yes, they can."

What's confidential?  The California Evidence Code (section 1119) says that everythng said or done during a mediation is confidential   

But what does "confidential" mean?  .

Under the California Evidence Code, statements made in a mediation are 

• not admissible in evidence; and,
• cannot be "discovered," i.e., you cannot be compelled to disclose those communications in answers to interrogatories, in deposition testimony and the like. 

Those are the only restrictions on the disclosure of confidences exchanged in a mediation held in California in the absence of a more restrictive agreement. Unless a California court broadens the scope of mediation confidentiality, an HOA Board Member who runs around the complex or neighborhood talking about who said what during a mediation is not "breaking" (breaching) the California's protections for mediation confidences.  

The Parties Can and Do, However, Agree to Limit the Communication of Mediation Confidences to the Participants in the Mediation.

A contract is an agreement that creates private law governing the parties' relationship with one another.  If you enter into a Confidentiality Agreement in mediation, you should understand that you are creating obligations that bind you as well as rights that protect you.  A google search turned up Confidentiality Agreements that provide remedies for their breach.  This one for instance provides two poential consequences for breach: 

1. any party to the agreement is entitled to ask the court to stop (enjoin) any other party from disclosing confidential communications; and,
2. the party who wrongfully discloses mediation confidences will be liable in damages (including the expense hiring attorneys) for any damages caused by his or her breach of the confidentiality agreement.  

The California-based ADR Services has a similar term in its Confidentiality Agreement (here). 

Failure to obey an Injunction can be enforced by contempt, but this remedy is expensive, would require multiple trips to the courthouse, is difficult to obtain and would not likely make up for the harm caused by disclosure.  The second remedy - damages -- would require you to file a lawsuit and your monetary losses are highly unlikely to be worth the expense of litigation.

Here's another Confidentiality Agreement that expressly incorporates the  provisions of the California Evidence Code.  This agreement prevents the parties from:

disclos[ing confidential information] to anyone [who is] not involved in any existing litigation, or any litigation that may arise, concerning the subject matter of this mediation session . . . . 

The term "involved in . . . litigation . . . concerning the subject matter of this mediation" is broad and ill-defined. All homeowners might be said to be "involved in" the litigation subject of the mediation.  If you read the contract language broadly, you might convince your HOA Board member that talking about the medaition around the condominium complex or in the neighborhood violates the Confidentiality Agreement.

There's nothing in this agreement, however, that states what the consequences of breach might be.  Nevertheless, if you suffered monetary harm as the result of the breach, you might well be able to file suit for damages in a breach of contract action.  Off the top of my head, I can't think of any harm that might flow from the Board Member's indiscretions that would cause sufficient economic harm to justify the cost of a lawsuit.

The commercial ADR panel on which I serve, Judicate West, makes a form Confidentiality Agreement available to the parties (here) which merely restates the controlling principles of confidentiality law in the State of California.  In light of the recent Thottam opinion in California, I would hesitate before asking parties to sign any agreement that:

1. expands the scope of confidentiality beyond that provided by the Evidence Code, while at the same time,
2. carves out an exception for the enforcement of the agreement.

For my analysis of that opinion and the problems it creates for mediators drafting confidentiality agreements, click here and here.  

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AUGUST 25, 2008 | FORUM

If You Know the Case Law, Litigation Doesn't Have to be Robotic

By Victoria Pynchon 

Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).

Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.

"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."

Why, indeed?

If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.

What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.

What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a "good faith" hearing.

Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.
If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.

Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?

Not so much.

If you have a DJ subscription, continue reading here.

Enforcement of Mediated Settlement Agreements in California - Get more Legal Forms

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Check out today's post at the IP ADR Blog on the Supreme Court's mediation confidentiality decisions and ways to protect your client from the resulting pitfalls -- Malpractice Alert:  Is it a Settlement Conference or a Mediation? 

Why you should care about the answer and what you can do to protect your client and yourself.

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UPDATE:  See the analysis of Thottam at May it Please the Court, noting that the "big print giveth and the small print taketh away."

Before further discussing the problems created by the Thottam holding, I'm providing a "brief" of the case about which I ranted and raved earlier here today.  

• THE FACTS: 
  • A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed, agreed to, admitted to, or resulting from ... [the mediation meeting]...
    • "shall be kept confidential and not disclosed to any outside person . . . ;
    • "shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting), and,
    • "shall be considered privileged and, as a settlement conference, non-admissible under the California Evidence Code in any current or future litigation between us.”  
  • One of the parties contended that a chart drawn up and signed by the parties during the mediation, 
    • was sufficiently certain to be enforced according to its terms; and,
    • was admissble into evidence under section 1123(c) despite its failure to satisfy any of 1123(c)'s requirements.
  • THE RULES:
    • Evidence Code section 1123(c) provides that a "written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure . . . if
      • "the agreement is signed by the settling parties and any of the following conditions are satisfied . . .
      • "(c) all parties to the agreement expressly agree in writing . . . to its disclosure."Id. (emphasis added).
  • PROCEEDINGS IN THE TRIAL COURT
    • Without finding that the settlement "chart" constituted a "written settlement agreement" under section 1123, the Thottam trial court required one of the parties to testify about otherwise confidential mediation communications because the Confidentiality Agreement required the disclosure of mediation confidences "necessary to enforce any agreements resulting from the [mediation.]"
    • Apparently before Elizabeth could testify, the civil action to enforce the alleged settlement agreement was consolidated with other proceedings in the Probate Court,
    • at the trial of the consolidated matters, the Probate Judge refused to accept the settlement chart into evidence because it did not comply with the provisions of section 1123(c).
  • THE APPELLATE DECISION
    • the appellate court reversed the Probate Court's decision.
  • THE HOLDINGS
    • Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure,"
      
      • may be satisfied by terms contained in a writing other than the alleged settlement agreement itself; and,
      • may be satisfied by terms contained in a writing executed before any alleged settlement agreement has purportedly been entered into.
    • Here, the Confidentiality Agreement satisfied those requirements; and,
    • The skeletal written settlement chart was enforceable because its material terms were, or could be made, certain. 
  • RATIONALE
    • Because the proceeding in which Appellant attempted to introduce the alleged settlement agreement was an action "to enforce what he claims is a settlement agreement reached in mediation," and,
    • the parties carved out of the Confidentiality Agreement any discussions that were "necessary to enforce any agreements resulting from the [mediation]"
    • the Confidentiality Agreement satisfied the requirements of section 1123(c); and,
    • the skeletal Settlement Chart was therefore admissible in evidence under that subsection.

This opinion threatens to blow a hole in sections 1119 and 1123 large enough to obliterate their protections -- protections that have been repeatedly enforced to the letter of the law by the Supreme Court in its fairly recent Fair v. Bahktiari opinion -- holding that parties to a mediated settlement agreement must include in it an express provision that they intend to be bound thereby -- and Simmons v. Ghaderi  in which the Court held that parties cannot impliedly waive confidentiality nor be estopped from asserting it.

Most Confidentiality Agreements I've seen (and used) naturally carve out an exception for the enforcement of a settlement agreement.  If you sign such an agreement after Thottam, you risk the enforcement of a non-1123-compliant "settlement agreement" and risk being required to disclose otherwise confidential mediation communications on the sole ground that one of the parties alleges that the opposition entered into an enforceable settlement agreement during the mediation.    

Were I attempting to resist the disclosure of mediation confidences my adversary claimed should be fair game under Thottam, I'd contend that the Thottam Confidentiality agreement, and hence its carve-out, was unusually broad and that the Court's holding should therefore be read narrowly and limited to its facts.  

As California lawyers know, the Second Appellate District has jurisdiction over matters litigated in the Los Angeles Superior Court.  It is therefore particularly important to take a look at the impact this decision might have upon matters mediated by the neutrals on that Court's pro bono or party pay panels.  All such parties are required to sign a Confidentiality Agreement that protects from disclosure all mediation-related "written" and "oral communication[s] made by any party, attorney, neutral, or other participant in any ADR session" except  "written settlement agreement[s] reached as a result of this ADR proceeding in an action to enforce that settlement."

Under Thottam, a colorable argument could be made that the mandatory Superior Court Agreement's confidentiality "carve-out" should be treated as either:

• an express agreement by the parties to waive confidentiality for the purpose of enforcing "written settlement agreement[s]" even if they do not satisfy the requirements of section 1123(c); and/or,
• a part of the alleged settlement agreement so that the two agreements together (confidentiality carve-out + non-compliant settlement agreement) satisfy the requirements of section 1123(c).

What to do?  Don't sign any Confidentiality agreement that could possibly be interpreted in a manner similar to the one subject of Thottam unless you want to risk the disclosure of mediation confidences arising from a writing that does not comply with section 1123(c).    

You can certainly refuse to sign the Superior Court's agreement in light of the Thottam holding.  I don't know as a matter of Court policy whether that limits parties' ability to use the Court's pro bono or party pay mediators. 

I'd have to say that this case puts confidences made in mediation sessions controlled by the Superior Court's Confidentiality Agreement at risk whenever one party is contending that the other entered into an agreement pursuant to a signed term sheet.

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(image:  Le Silence O Redon)

In today's Daily Journal, reporter Greg Katz writes  that DESPITE RULES, NEUTRALS ARE RARELY BLAMED WHEN THEY MEDIATE AND TELL.

"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"

The answer: probably nothing.

As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.  

Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations."  Kelly concluded by saying,

If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?

Yes I do.  Yet local attorneys and mediators seem unconcerned.  Lucie Baron of ADR Services told Katz that her panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot.  They don't, she noted, ask her for legal advice. 

Not a bad call on Baron's part.  But what about the neutrals? 

Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing.  Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine.  Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.     

When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame. 

So far, mediators haven't been among the potential culprits.   

I wouldn't count on that situation lasting much longer.

_____________________

*/  More on this topic soon.

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Update:  there's a good discussion of the holding and rationale at the Complex Litigator -- Simmons v. Ghaderi: mediation privilege trumps allegation of oral settlement agreement here.

I'm re-posting this "how to" now that Simmons v. Ghaderi has been decided.  You no longer have even a fighting chance of enforcing a mediated settlement agreement that fails to comply with the Code.  So here's the procedure, as recommended by my and Deborah Rothman's article in the Daily Journal in November 2006 -- Take Steps to Ensure that Mediated Settlement Agreements Can Be Enforced. 

Assuming your client insists on orally memorializing the settlement reached in mediation, you must comply strictly with Evidence Code Sections 1118 and 1124. An oral agreement reached during a mediation can be proven and enforced only if (1) its terms are recited to a court reporter or recorded by a sound device in the presence of all parties and the mediator, (2) the parties expressly agree to those terms on the record, (3) the recording is reduced to writing and signed within 72 hours of its recordation and (4) all parties to the agreement expressly agree in a writing, in the sound recording or in the reported record that the signed written transcript may be disclosed.

Th[e] procedure for enforcing an oral settlement is so technical and cumbersome . . . (counsel and mediators rarely have court reporters standing by or tape recorders in their breast pockets), that we recommend against it.

We instead suggest that the parties document all settlements in writing, even if the writing contains only skeletal deal terms and even if someone has to begin drafting it at 2 a.m. The agreement should provide that the parties intend it to be enforceable or binding and that all parties expressly agree in writing to its disclosure. . . . If an action is pending between the parties, the memorandum of understanding should be made enforceable under Code of Civil Procedure Section 664.6.

See also the Supreme Court's decision in Fair v. Bhaktiari, interpreting the phrase "words to that effect" in section 1123(b) as requiring a written mediated settlement agreement to "directly express the parties’ agreement to be bound by the document they sign."

Almost right will not do.  You must strictly comply with these provisions or your mediated settlement agreement will not be enforceable.

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Today, the Supreme Court handed down a unanimous ruling in the long-awaited Simmons v. Ghaderi case about which I've commented on many occasions -- both on the importance of the confidentiality laws the Supreme Court held were air-tight today and on the process itself as a common example of a failed mediation proceeding.

Highlights from the opinion:

• "The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process."
• [T]he legislative history of the mediation confidentiality statutes as a whole reflects a desire that section 1115 et seq. be strictly followed in the interest of efficiency. By laying down clear rules, the Legislature intended to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation. (citation omitted).  Allowing courts to craft judicial exceptions to the statutory rules would run counter to that intent."
• In Foxgate,  we reasoned we "were bound to respect the Legislature’s policy choice to protect mediation confidentiality rather than create a procedure that encouraged good faith participation in mediation. Thus, we held that evidence of a party’s bad faith during the mediation may not be admitted or considered." 

Here's the appellate decision that was reversed on nearly every ground raised in Justice Aldrich's compellingly well-reasoned dissent.

Here are our previous commentaries:

Take Steps to Ensure Mediation Agreements Can Be Enforced (co-authored by local arbitrator and mediator Deborah Rothman, first published in the Daily Journal)

You Say Waiver, I Say Estoppel, Let's Call the Whole Thing Wrong -- Another Look at Simmons v. Ghaderi  

If I Settle, It Will Mean that I Killed Her -- Anatomy of a Failed Medical Malpractice Mediation, at the National Institute for Advanced Conflict Resolution

Here's a veiw that opposes my own -- Kirk Pasich Replies:  the Mediation Privilege and Bad Faith Carrier Conduct.

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Before giving you today's list of ABA Journal resources that landed in my in-box this morning, I want to announce my appearance on the Journal's dot com front page in its "Ask the Experts" feature. 

If you have a question -- any question -- relating to negotiation strategy and tactics, conflict resolution, mediation advocacy, persuading the opposition that he doesn't fully understand just how $%#*^ his case is, the social psychology of conflict, or the settlement of that pesky piece of litigation that is turning moldy on the upper right hand corner of your desk, just write it into the email box here and your answer will be quickly forthcoming.

Self-promo out of the way, here's the latest on ABAJournal.com resources:

ABAJournal.com has created four new features designed for busy lawyers.

Blawg Search: We've partnered with Justia.com, the leading legal information portal, to create a search engine covering all of the 1,800-plus blogs in our directory -- including yours. It's like Google for lawyers, pinpointing in an instant the most sophisticated and up-to-date commentary by legal professionals on any topic. Use the search box at the top of any of our pages (including our homepage: www.abajournal.com), and on the search results page click on the "Blawg Results" tab. Plus you can subscribe to an RSS feed of any search to follow the results in your feed reader.

News Widget: Now you can add continuously updated ABA Journal headlines to your blog or to personalized pages like iGoogle or Netvibes with our news widget. We're posting 25 to 50 fresh stories every business day, so you're sure to deliver the latest breaking legal news to your readers. Visit our widget page to grab the free code: www.abajournal.com/widgets

Twitter Feed: Are you using Twitter, the most popular microblogging platform? Then you can integrate our headlines into your personal Twitter page. Dozens of lawyers already have. Visit our page and click "Follow": www.twitter.com/abajournal

Facebook Page: If you're a member of Facebook, one of the most popular social networking sites, you can become a fan of the ABA Journal. Our Facebook page features our latest headlines, recent covers, and special announcements. Visit our page and click "Become a Fan": http://www.facebook.com/pages/ABA-Journal/13563247155

And to celebrate winning the Webby People's Voice Award in the Law category, we're letting our readers pick which of three acceptance speeches we'll give at the June 10 ceremony. Each is just five words long -- the maximum length the Webby Awards will allow. To cast your vote, visit: http://www.abajournal.com/news/webbyspeechvote/

We hope you find that these features, and more that will be coming in the months ahead, make ABAJournal.com even more useful and informative. We love getting feedback from our readers. If you have suggestions, drop us a line: www.abajournal.com/contact

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Thanks to Perry Itkin's Florida Mediator for linking to this Memorandum Opinion enforcing, by way of contempt proceeding, a mediation confidentiality order entered by a federal magistrate in the District of Columbia in January of this year.

We were just discussing this issue at the yearly Settlement Officer (my own S.O. profile here) "brown bag" lunch meeting with Judge Morrow of the U.S. District Court in the Central District of California.  Some of those present were concerned of the the confusion that might be caused to counsel by the unsettled state of the law of mediation confidentiality in federal practice and by the Court's own "Procedures for Implementing Settlement Options," re-printed below.  Notice that the Court's procedures use the terms "mediation type settlement proceedings," settlement "procedures,"  and, "settlement conferences" without defining any of them. 

Federal counsel should note, however, the District Court's Local Rule 16-15.8

Confidentiality of Proceedings . All settlement proceedings shall be confidential. No part of a settlement proceeding shall be reported, or otherwise recorded, without the consent of the parties, except for any memorialization of a settlement and the Clerk’s minutes of the proceeding.

For further insight into confidentiality in federal courts, see Deason, Ellen E., "Predictable Mediation Confidentiality in the U.S. Federal System," Ohio State Journal on Dispute Resolution, Vol. 17, No. 2, 2002 and local federal settlement officer Phyllis Pollack's post, Mediation Confidentiality:  Does it Exist in Federal Court? discussing Babasa v. LensCrafters, Inc. (Case No. 07-55880).  

Procedures for Implementing Settlement Options below:

In every civil case, the parties, unless exempted by the trial judge, shall participate in one of the settlement procedures set forth in Local Rule 16-15 or as otherwise approved by the trial judge. No later than 45 days before the final Local Rule 16 pre-trial conference, the parties shall select and participate in one of the suggested settlement procedures as set forth in Local Rule 16-15 or as otherwise approved by the trial judge. Except as otherwise ordered by the Court, a Notice and Request of Settlement Procedure Selection (ADR-1), signed by counsel for both sides, shall be filed not later than 14 days after entry of the schduling order under F.R.Civ.P. 16 (b).

If Settlement Procedure No. 1 (Local Rule 16-15.4) is selected: If the assigned district judge is to conduct the settlement procedure, the parties must contact that district judge’s courtroom deputy and arrange a date and time for the settlement conference. The courtroom deputy will calendar the matter accordingly. If the assigned discovery magistrate judge is to conduct the settlement conference, the courtroom deputy shall refer the matter for settlement conference to that assigned magistrate judge. The magistrate judge’s courtroom deputy will calendar the matter accordingly. Further questions regarding this option may be referred to the courtroom deputy for the assigned district judge or assigned discovery magistrate judge, as appropriate.

If Settlement Procedure No. 2 (Local Rule 16-15.4) is selected: The parties must access the Attorney Settlement Officer Panel List available from the website. There are two panel lists on the website, one alphabetical and the other by area of law. The website also contains personal profiles of those panel members who voluntarily provided such information. The Attorney Settlement Officer Panel List is updated periodically by the Panel Coordinator. If the parties do not have the ability to access the website, the parties may contact the courtroom deputy to the assigned judge for the case. The courtroom deputy will make a photocopy of the appropriate section of the list that relates to the type of case that the parties are litigating and fax or mail that appropriate section to the requesting party. The parties shall then make a selection from the list, obtain consent from the Attorney Settlement Officer selected and file a Stipulation Regarding Selection of Attorney Settlement Officer (ADR-2).

The parties and the Attorney Settlement Officer shall arrange for an agreed upon date, time and place for a settlement conference and shall so notify the Panel Coordinator. If the parties cannot agree on an appropriate Attorney Settlement Officer from the list, they shall submit the ADR-2 requesting a random assignment of an Attorney Settlement Officer. The Panel Coordinator will perform the random assignment of an Attorney Settlement Officer from the particular area of law designated on the ADR-2 and will notify the parties by mail of the selection. Within five days after the conclusion of the settlement proceeding, the Attorney Settlement Officer shall file with the court and serve the parties and the Panel Coordinator an Attorney Settlement Officer Proceeding Report (ADR-3). Further questions regarding the Attorney Settlement Officer Panel may be referred to Dawn Osborne-Adams, Attorney Settlement Officer Panel Coordinator, at 213-894-1215.

If Settlement Procedure No. 3 (Local Rule 16-15.4) is selected: The parties shall appear before a retired judicial officer or other private or non-profit dispute resolution body for mediation-type settlement proceedings. The parties shall make any necessary arrangements in this regard and should file a notice with the court naming the person who will conduct the settlement conference and indicating the date set for the settlement conference.

If a "Notice to Parties of ADR Pilot Program" has been issued: Along with the Notice provided to plaintiff's counsel at the time of the filing of the complaint, plaintiff's counsel (or defense counsel if a removal case) will also be given an "ADR Pilot Program Questionnaire." This Questionnaire is to be completed jointly by the parties and filed concurrently with the report required under Federal Rules of Civil Procedure 26(f). After reviewing the Questionnaire, if the judge assigned to the case determines that the case is suitable for referral to the program the parties will receive an "Order/Referral to ADR Pilot Program." For further information on the program, please see General Order 07-01 which is available on the Court's website.

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The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR

April 3-5, 2008

Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes. This conference offers some of the best ADR CLE in the country presented by diverse and experienced faculty. With over 90 CLE programs planned, you can fulfill all of your CLE requirements over the course of a few short days.

This year’s conference also offers many dynamic and engaging plenaries.

The opening plenary entitled Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation.

Linda Babcock will present the Friday morning plenary: Women Don't Ask: Negotiation and the Gender Divide. Ms. Babcock will speak about the four-phase collaborative problem-solving approach to negotiation and how lawyers and mediators can use this approach to manage the reactions and emotions that may arise on both sides of a dispute.

ABA President William Neukom will deliver a keynote speech and Tom Stipanowich, Academic Director Straus Institute for Dispute Resolution and Professor of Law, Pepperdine University, will present at the Friday Luncheon.

Saturday offers The Language Conflict: How Aggression and Violence Inform the Way We Speak presented by Kenneth Cloke and Joan Goldsmith of the Center of Dispute Resolution. This skills-building plenary will examine strategies on how to turn hostile denunciations and debates into appreciative disagreements and dialogues. Don’t miss out! Register today to attend these exciting plenaries.

I'll be presenting a seminar on Intellectual Property Mediation with the Hon. John Wagner (Fed. Magistrate, Ret.) and Christine Byrd of Irell & Manella.   

To review the conference brochure click here.

Book your hotel today! The negotiated conference room rate ends soon. Contact the Sheraton Seattle Hotel & Towers at 1-800-325-3535 or register online and reference the ABA Section of Dispute Resolution 10th Annual Conference to receive the discounted conference rate of $189.

This discounted rate is available until March 4th or until the block has been filled.

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I often find myself explaining lawyers to their clients and clients to their attorneys.  Here are some typical client complaints I hear about their litigator attorneys:

• he tells me to forget about the most important losses I've suffered
• she keeps editing my story 
• I don't understand why I can't . . . i.e., recover my attorneys' fees or cross-complain, etc. 
• he wouldn't let me tell the mediator everything I wanted to
• she didn't let me talk to the other side

And here are the typical litigator complaints I hear about clients:

• his expectations of success or recovery are commpletely unrealistic
• if I tell her the weaknesses of her case, she says I've become the enemy
• I've explained the limitations of the case to him, but he just doesn't seem to understand

Translating the Law into Justice -- An Explanation for Clients

The chart above and photos below are simple ways to explain to clients the gap between the law and justice.  Sample explanation --

The dispute you're having exists in the world of injustice.  

Picture the earth.

Now picture a grain of rice somewhere on the earth.

The grain of rice represents the injustices the law will remedy. 

The earth represents the injustices the law will not. 

Square Pegs in Round Holes -- An Explanation of the "Legal Story" for Clients  

It feels like your attorney is "editing" or shaping or "spinning" your story of injustice because she is.  The yellow square represents the facts necessary to obtain relief in court (damages, an injunction, etc.).  It also represents the facts necessary to defeat your opponent's claim for relief.

The entire dispute -- everything that happened inside the green circle -- is generally what you, the client, want to resolve. 

 IT OFTEN INCLUDES FACTS THAT WOULD BE HARMFUL TO YOUR CASE. 

That's why your attorney doesn't let you talk in the presence of the "other side" and asks you not to discuss the dispute with your opponent anymore.  Because you might reveal something in the green area that's bad for proving your case in the yellow area.  

THE MEDIATION ZONE -- AN EXPLANATION FOR ATTORNEYS AND THEIR CLIENTS

Mediators work in the green area.  Clients almost always want to resolve all of the issues raised by the dispute, not simply the "legal" ones.  Perhaps more importantly, there are many opportunities for resolution in the green mediation zone that no one has yet seriously explored because the green zone is not the focus of the legal action.  Only the yellow legal zone is.

Mediation restores the dispute to the people who have it.  They are the only ones who know and understand that dispute in all its detail, texture, dimension and meaning.  Party interests -- their hopes, fears, desires, needs, etc. -- exist in both zones.  The good news of mediation is that the party interests outside the legal zone can often be traded for concessions that are in or out of it. 

When you have only one currency to negotiate with -- dollars -- you often reach impasse.  Why?  Because it seems so unfair to both parties that they should give in, compromise, split the baby in half, etc. just because the cost and aggravation of getting to trial is so high.

When you have more than one currency to negotiate with, however, like dollars and "face" or dollars and unexplored business opportunities or dollars and apology, or dollars and an explanation for the dispute's events that has the ring of truth, you can trump legal impasse with party interests.  

Writing on a Grain of Rice

Vendors who line beach boardwalks or the sidewalks of tourist towns often include the guy who will write your name on a grain of rice.  HERE!!!

Sometimes I feel as if my entire career as a litigator was written on a grain of rice -- that's how small the legal zone sometimes looks from here.  It's O.K., though.  Litigation isn't just a job or even just a career.  It's a calling, this business of rights and remedies, of following a rule of law instead of a strong arm or the snake-oil's charm. 

As the poet Lao Tzu wrote, 

whether a man dispassionately
Sees to the core of life
Or passionately
Sees the surface,
The core and the surface
Are essentially the same,
Words make them seem different
Only to express appearance.
If name be needed, wonder names them both:
From wonder into wonder
Existence opens. 
 

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(photo Money! by David Beyer)

"Three can keep a secret if two of them are dead."  Benjamin Franklin

Do you know whether your settlement conference can be considered a mediation?

Do you know whether mediation confidentiality rules will prevent you from enforcing terms of an agreement that have not been included in the deal points hastily scrawled at mediation's end?

Do you know what type of confidentiality protections govern settlement negotiations that are not "mediated"?

Do you know you could be prevented from proving you were fraudulently induced to enter into an agreement if it was negotiated during a mediation?  

If your answer to ANY of these questions is "no," you should take a look at the Power Point Presentation on Mediation Confidentiality that I recently gave as an MCLE teleseminar. 

I've included in this presentation the speakers' notes so that you'll be able to obtain almost as much benefit from the Power Point as did the "live" participants.  

POWER POINT PRESENTATION WITH SPEAKER'S NOTES

I mention several great resources in the presentation including

• local mediator Bob Steinberg's recent article on Negotiation Ethics here.
• local policy holder coverage attorney Kirk Pasich's article on Insurance Bad Faith in Mediated Settlement Conferences here.  
• Disputing Irony: A Systematic Look at Litigation About Mediation by James R. Coben & Peter N. Thompson from the Hamline U School of Law. 

I also have an entire page of resources, together with a form mediated settlement agreement here.

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