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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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Wondering how to settle construction litigation in the midst of an economic downturn that has emptied your contractor clients' pockets?

Check out How Can Insulation Contractors Maximize Insurance Coverage over at Scott Godes' excellent Corporate Insurance Blog.

If I had to live my commercial litigation career all over again, I would start by making sure I understood everything I possibly could about the potential for insurance coverage, particularly when reading the terms of coverage makes me believe there is none.

When "sudden" can mean "gradual" all bets on attorneys understanding the ordinary meaning of policy language are off, right Scott?  As Scott's post notes, his recent presentation, Insurance_Coverage_Issues_for_Asbestos_Non-Products, discusses the potential for multiple policy limits of insurance coverage to apply to asbestos claims.

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Because litigation is so often settled with insurance dollars, from time to time we bring you updates on recent judicial interpretations of common policy terms.  The following article answers the question in the Fifth Circuit whether CGL policies cover certain types of construction defect claims.

(left, author Schramek)

"Fifth Circuit Narrowly Construes 'Business Risk' Exclusions in CGL Policies"
Fulbright Briefing
Adam T. Schramek
February 2009

A recurring dispute between insurance companies and Commercial General Liability (“CGL”) policyholders concerns whether CGL policies provide coverage for construction defect claims. In its recent decision in Mid-Continent Casualty Co. v. JHP Development, Inc., No. 05-50796 (January 28, 2009), the Fifth Circuit takes the latest step in Texas jurisprudence on the issue, concluding that the “business risk” exclusions in such policies, at least as currently drafted, do not exclude coverage for damage to a contractor’s non-defective work even if caused by his own defective work.

Read on here.

We owe the head's up on this article to whoever convinced Fulbright's powers that be that the firm should micro-blog on twitter here:  @Fulbright.

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You haven't really experienced unvarnished brilliance in a mediator until you've spent some time co-mediating a construction case with Jerry Kurland of JAMS.  When I say "co-mediate" I'm talking 70% Jerry, 29% former Oliver Award winner Judge Victoria Chaney and 1% Vickie Pynchon. 

I have co-mediated at least a hundred cases with various highly respected mediators and bench officers in Los Angeles over the past four years and I have to say that Jerry Kurland is the most supple, savvy, even-tempered, big-picture mediator I have ever had the pleasure to work with.  And the hardest working. 

I know Jerry is booked months in advance, but if I had a sophisticated construction case with dozens of moving parts,  I'd book Jerry at the same time I filed my initial pleadings.

CONGRATULATIONS JERRY.  News item about his nomination below.

ANAHEIM, CALIF. (April 17, 2008) — JAMS Neutral Gerald A. "Jerry" Kurland, Esq. has been nominated for the prestigious 2008 West Coast Casualty Jerrold S. Oliver Award of Excellence. The award will be presented at the 15th Annual West Coast Casualty Construction Defect Seminar at the Disneyland Hotel in Anaheim, California on May 8th.

Named after the late Judge Jerrold S. Oliver, a JAMS mediator and arbitrator, and a "founding father" in using ADR to resolve construction claims, this award recognizes an individual who is outstanding or has contributed to the betterment of the construction community with the same spirit of commitment, loyalty and trust as that displayed by Judge Oliver. The award is affectionately known as the "Ollie Award." The organization puts out a call for nominees from 1,900 members of the construction community.

"We congratulate Jerry for being one of four finalists for this terrific award," said Chris Poole, JAMS President and CEO. "As one of our most respected neutrals in the field of construction, Jerry is known for his experience, talent, and great personal skills. He is certainly deserving of the nomination, and we wish him the best of luck in being selected as the award recipient."

Continue reading here.

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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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OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true!  Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.

Justice, however, should be neither hype nor mystery.

There are only two days left for you to take the Negotiation Justice survey here.

Litigators:  tell your mediators what protections and benefits you're looking for in a mediation.

Mediators:  ask your lawyer friends to take the survey.

And, oh yes, the people whose disputes we resolve.  Clients.  Yes, that's you.  The people who hire lawyers.  Tell us all what it is you're really looking for.  We promise we'll undertake a great effort to serve you better.

Preview from the Justice Survey     

If you had to choose, would you prefer to lose in a fair process or win in an unfair process?

Win even if the process was unfair 54%

Lose so long as the process was fair 46%

Agree?  Disagree?  Take the survey and let us know!

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I don't have the statistics but know from experience that construction defect litigators mediate their cases to settlement more often than, say, general commercial litigators (my background).

Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.

1. although justice and fairness issues are repeatedly raised in my mediation practice -- "s/he's extorting me" or "s/he victimized me," most of the mediators I've casually asked say "we're not in the 'justice' business, we're in the business of finally resolving disputes."
2. SO I WANT TO KNOW WHAT LAWYERS WHO ARE REGULAR ADR USERS REALLY THINK ABOUT JUSTICE/FAIRNESS ISSUES IN NEGOTIATIONS AND MEDIATIONS.

Your Views on Optimal Mediator Practices.

As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.  

So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.

Here's the Problem

I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses. 

I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.

Already, the results are surprising.  I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.

I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.

So I'm asking all Construction Defect Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.

It will be good for all of us.  Please take the survey!

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Anyone representing contractors, developers, sub-contractors or insurance carriers in construction defect or coverage actions should read the most recent California case law on the duty to pay defense costs for complex construction defect cases.  

By "complex," I mean those cases where the HOA sues the developer who sues the general who sues the sub's, all of whom seek coverage from their carriers.  As any player in these 15-ring circuses knows, defense costs are often paid by an additional insured endorsement contained in the policies of one or two of the sub-contractors.    

That's what happened here.  The Court does a great job of clearly explaining the difference between equitable contribution and subrogation where the policies at issue provide potential coverage for some but not all of the causes of action.  The additional twist here involves excess carriers.

I'm not going to brief this case here (relying on my insurance blogging colleagues to do so).  I do want to alert attorneys for the HOAs, developers, contractors, and insurance carriers for whom I mediate construction defect and coverage cases to this important contribution to the most pressing question at any construction defect settlement conference  -- "whose got the money to settle this thing?" 

The case is Transcontinental Insurance Company v. Insurance Company of the State of Pennsylvania, filed on February 28, 2007 and published on March 27, 2007 by the Fourth District, Div. Three.

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Copyright Charles Fincher at Scribble-in-Law, www.LawComix.com. 

You can buy this (signed!) and many other hilarious legal comics at the site that I've linked to above. 

What is it about Texas Lawyers and Art?  See Billing Time. 

Whatever it is, we're grateful for the laugh of recognition.  We all take ourselves too seriously and need to have our balloons popped like this at least once a week.

Why have I never seen any of these before?

I'm going to be late for a mediation because I stayed too long on the Scribble-in-Law site.

Thanks Charles!!

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INTEGRATIVE OR INTEREST-BASED BARGAINING IN CONSTRUCTION DEFECT LITIGATION

I had the great good fortune to study construction defect mediation recently with two masters of the trade,George Calkins and the Hon. Kevin W. Midlam (Ret.). These two know their way around a construction site; a courtroom; an insurance policy; the law; and, ways to manage and resolve complex construction litigation better than anyone I've ever met.

Though we didn't engage in much "mediator speak" at the seminar -- integrative bargaining and the like -- it's clear that you need to know what Calkins and Midlam have to teach if you want to explore anything other than the tip of the CD iceberg. I did, however, tell one interest-based negotiation story in class that piqued the curiosity of a few classmates. Because it illustrates the potential to reach the parties' interests when you don't know what a cripple wall is, I repeat it here.

I dropped by Judge X's courtroom not long ago as she and Mediator Y were helping the parties settle up with the last couple of subcontractors involved in a Southern California residential development. The sub and his attorney were served late in the case; substantial attorneys' fees had already been expended; and, and the sub's attorney had promised not only complete victory, but reimbursement of all attorneys' fees in the process.

Mediator Y had reached impasse and Judge X was on the bench. They thought they could get the contractor to cut the sub loose for a dismissal with mutual general releases. The sub and his attorney were resisting this generous offer. Since I'd dropped by, could I help?

Sitting in the Judge's chambers, the sub's attorney immediately launched into a tirade about the injustice of his client's having being dragged into the litigation; his planned strategy for victory at the upcoming trial and the reasons that victory would be capped by a successful malicious prosecution action. The sub himself seemed enthralled with his pit-bull counsel and all discussion about the merits of their position made both men dig their heels in deeper.

I'm not certain when I began to realize that the attorney's bravado signaled something closer to a plea for help than a cry to battle. The thought surely originated when I started asking questions about the likelihood of victory in hard percentages.

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