Arbitration & Mediation

Attorney Not Held to Higher Standard When Negotiating with Known Felon

Posted on February 06, 2008
Take a look at Law.com's article Settlement Agreement in Spotlight as Legal Malpractice Case Against Duane Morris Begins.  The legal malpractice action subject of that article is notable for what must be a ruling of first impression -- that an attorney may not be held to a higher standard of care in negotiating a settlement agreement "simply" because he knows his client's negotiating partner is a convicted felon -- at least not unless an expert testifies that a higher degree of caution should be exercised...

The Negotiation Guru Tells You to Be Classy!

Posted on February 01, 2008
Check out last November's post on Negotiation Guru, How to Be a Classy Negotiator.  Excerpt below:Classy negotiator?! Is there such a thing? I believe there is. A negotiator is not always about being competitive, collaborative, avoiding and the whatnot...

There's a New Mediator on the Blog Block Talking "True" and "False" Mediations

Posted on January 31, 2008
Let's welcome New York attorney-mediator Christian S. Herzeca of Mediation Mediations to the blogging block and thank him for joining the conversation about what "true" mediation really is.  Who is to say that a mediator is truly practicing true or false mediation? I attended a conference regarding mediation in personal injury cases, where insurance company defendants were discussing the relative merits of mediation versus showing willingness to go to trial...

Follow the Money: Coverage 101 and 2007 Fifty State Analysis of Coverage for Environmental Damage Liability

Posted on January 31, 2008
I was a commercial, antitrust, IP and securities litigator long before I devoted nearly a decade of my practice to environmental coverage litigation.  In the process, I learned enough about Comprehensive General Liability ("CGL") coverage to make me worry about how well I'd served my commercial clients in regard to the insurance coverage potentially available to them...

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EVALUATIVE, FACILITATIVE, TRANSFORMATIVE, DIRECTIVE, OH MY!

Posted on January 30, 2008
 Because a reader recently suggested that "facilitative" mediators "tell the parties what to do," I decided it was time to revisit our terminology.    Mediators!  Litigators!  Please feel free to weigh in!FIRST, LET'S JUST GO AHEAD AND ADMIT UP FRONT THAT NEGOTIATION IS A COMPETITIVE SPORT -- the goal of which is to take the largest part of the delta between the two parties' real bottom lines...

Mediation with a Mugger?

Posted on January 30, 2008
Thanks to Geoff Sharp for this item picked up from this post over at the Legal Profession Blog:The Goetz example [of poor Bernhard having to mediate with his mugger] was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W...

Impeaching Witnesses in Depositions to Improve Your Bargaining Power

Posted on January 29, 2008
(click on photo at right to purchase text)How do you achieve the best result for your client in a settlement conference or a mediation?  By having done as much good work to support your own case and destroy your opponent's before you discuss settlement...

Our Man in Iraq on the State of the Union

Posted on January 29, 2008
The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq. And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life...

We Add Legal Frontier to Our Blog Roll

Posted on January 25, 2008
If you haven't checked out our blog roll page lately, you might want to take a look here.  These are the blogs we actually read both here and over at the IP ADR BLOG. We just this morning added the new "Legal Frontier" blog, whose author describes himself and his blog as follows:My name is Andrew Mitton and am the author of Legal Frontier...

Should You Raise the Spectre of "CSI" Juror Bias at a Mediation?

Posted on January 25, 2008
Listen, if corporate entities believed they couldn't overcome juror bias, they would never try a case.  How to accomplish that feat is the difficult task of every great trial attorney who represents a corporate defendant.  Despite the research cited below, I do not suggest that plaintiffs' attorneys, as a matter of mediation strategy, suggest to corporate defendants that they will lose at trial because of juror bias...

DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation

Posted on January 24, 2008
When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases.  Some of my most profound human interactions occurred in these mediations...

Another Consumer Arbitration Agreement Bites the Dust

Posted on January 22, 2008
This one is Lowden v. T-Mobile USA decided today by the Ninth Circuit.We conclude that the Washington State Supreme Court’s decision in Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile’s arbitration provision is substantively unconscionable and unenforceable under Washington state law, and that there is no federal preemption in light of our decision in Shroyer v...

Need a Bankruptcy Mediator? Try Judicate West Hearing Officer and Buchalter Attorney Benjamin S. Seigel

Posted on January 22, 2008
Because I've had several people land on my Negotiation Blog looking for a bankruptcy mediator, I thought it would be a public service to introduce my readers to Buchalter bankruptcy attorney and Judicate West mediator, Benjamin Seigel.Mr. Seigel has published several articles on the practical aspects of mediation of business disputes and has served as a mediator for the United States Bankruptcy Court for the Central District of California since 1995...

Do It Yourself: The Most Effective, Personally Satisfying and Least Costly ADR

Posted on January 22, 2008
I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation:  A Moral Vision that Transforms People and Society by Canon Brian Cox...

Negotiating Retail: Buy the Suit and Take the Shirt and Tie for Free

Posted on January 19, 2008
It is mediation creed that Americans don't like to bargain.  If they did, there probably wouldn't be mediators or Hollywood agents.Now the New York Times tells us why.  After World War II, we had a virtual monopoly on consumer goods.  Our negotiation skills took a hike in the woods and never returned...

What Every Mediator Wishes Every Lawyer Knew About Negotiation

Posted on January 19, 2008
(image:  Avi dancing by Tamar Factor)Because I cannot say it any better than this, I am simply excerpting the Conflict Research Consortium's article on Principled Negotiation.  You don't have to be an expert in this -- your mediator is...

How Rich are We? A Modest Response to Geoff Sharp's Mediator Salary Post

Posted on January 18, 2008
Before a wave of emotional despondency descends upon rank-and-file mediators from Geoff Sharp's revelation that median mediator income hovers around $67,000, let's get a little perspective.First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top ...

The ABA Approves the Oxymoron of Collaborative Litigation

Posted on January 18, 2008
The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent.  See Putting a Kinder Face on Litigation.  Excerpt below:  “When a client has given informed consent to a representation limited to col­laborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation...

Writers Guild Ready to Negotiate in Wake of Directors' New Deal

Posted on January 18, 2008
The Writers' Guild Responds with Predictable Petulance -- Analysis Later Now that the DGA has reached a tentative agreement with the AMPTP, the terms of the deal will be carefully analyzed and evaluated by the WGA, the WGA's Negotiating Committee, the WGAW Board of Directors, and the WGAE Council...

Directors' Guild Announces Tentative Deal with Producers

Posted on January 18, 2008
Director's guild press release below.  Analysis will follow.LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP)...

Battleships, Litigation and Separate Caucus Mediation

Posted on January 18, 2008
When people used to ask me what it was like to practice law, I compared litigation to the childhood game of battleships ** -- a game I recall playing with great avidity.So what does battleships have to do with yesterday's mediation?  Until you are negotiating in the zone of possible agreement, you have no way of knowing how close you've come to resolution...

JOB ANNOUNCEMENT: SENIOR MEDIATOR/FACILITATOR IN SAN FRANCISCO

Posted on January 15, 2008
Kearns & West, a mediation and communications firm specializing in water, energy, natural resources and environmental mediation, collaboration and public involvement, seeks:  A seasoned mediator/facilitator or public involvement expert to join the firm’s San Francisco office, or  A mediation/collaboration/public involvement firm or 2-5 person group that is interested in joining K&W, and/or  A seasoned mediator/facilitator or public involvement expert or small firm interested in joining the firm in other locations...

JOB ANNOUNCEMENT: DIRECTOR OF TRANSFORMATIVE MEDIATION CLINIC ON LONG ISLAND

Posted on January 15, 2008
This job announcement just in from Hofstra University School of Law --January 15, 2008 From Robert A. Baruch Bush, Professor, Hofstra University School of Law Transformative Mediation Colleagues: I'm writing to inform you of a great opportunity to work as the director of a Transformative Mediation Clinic at Hofstra Law School, in New York, where I teach...

Geoff Sharp Returns with a Mediation Puzzler for the New Year

Posted on January 15, 2008
Welcome back from vacation Geoff!  We do miss your voice.Readers -- here's Geoff's slightly edited vacation story coupled with a mediation puzzler!  there we were - just after Christmas - on a main highway at the bottom of the South Island of New Zealand and crossing a one-way road/rail bridge...

More Commentary on the Licensing of Mediators

Posted on January 14, 2008
The word "license" is obviously a red flag in the mediation community -- so red that no one has yet picked up my thread of "best practices and standards."  Frankly, I worry a little more about best practices and standards than licensing...

Resolving Moral Conflicts

Posted on January 14, 2008
As you can imagine, I have a lot to say about the resolution of conflict -- and the negotiation of solutions -- where moral beliefs are implicated and non-negotiable.  Because I don't have time, I'm leaving you with the end of an excellent, must-read Sunday New York Times Magazine article by scholar Steven Pinker -- author of How the Mind Works -- entitled The Moral Instinct...

It's About Fairness, Dummy!

Posted on January 14, 2008
(right:  is the key to settlement really money?)This is the dialogue I often have when attorneys (and some mediators!) suggest to me that the settlement of litigation is "only" about money.V[ickie]:   "Why do people seek out your services?"A[ttorney]:  "Because [i...

The Time Has Come for Licensing and Best Practices

Posted on January 14, 2008
I've long been saying it will take a tragedy following services provided by unqualified mediators before the States will move in to set standards and require licensing.  Here's the first breath that will stir the leaves of change in Sacramento...

Conflict in Our Own Backyard: Should Someone Accept Clooney & Hanks Offer to Mediate the Writers Strike

Posted on January 13, 2008
Finally an excuse to post a photo of the world's sexiest man on my blog!The excuse?Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike...

Why Happy Lawyers are Happy: From the Declaration of Independence to Neuroimmunity

Posted on January 12, 2008
My brilliant and talented step-son who is beginning legal practice this coming Monday is worried about career satisfaction.  When I suggested that he read my "Why Lawyers are Unhappy" article, he said, "I'd far prefer to read an article about why lawyers are happy...

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