A Review Of Lawyers As Peacemakers: Practicing Holistic, Problem-Solving Law (7/26/10)
Brooke Deratany Goldfarb
According to Ms. Wright, there is a rapidly expanding like-minded legal community out there, actively practicing the concepts of peacemaking, problem-solving and conflict-healing. Ms. Wright has been instrumental in telling these lawyers’ stories and bringing them together. Over a dozen years of her findings are culminated in her new ABA publication, Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law.

Why Isn’t ADR More Popular? A Report From Harvard (7/26/10)
Holly Hayes
The article below was published this week on the Program on Negotiation at Harvard Law School website. It sheds light on a topic that I am asked about often — Why isn’t mediation more popular? In light of the potential for increased conflict with the implementation of health care reform, this question, and the answers below, appears to be even more pertinent.

Old Wine New Wineskins And Lawyers (7/19/10)
William S. Harralson
If Perry Mason sat down with you at the mediation table to discuss prospects for resolving a civil case, would you consider him to be an asset or a liability towards the success of the mediation process?

Questions Clients Have About Mediation: What Happens In Mediation? (7/19/10)
Victoria VanBuren
Every mediation is unique. The mediator will work with the parties and counsel to devise the appropriate format for the mediation. In general, however, mediation has four stages:

Am I Stepping Over The Line? (7/19/10)
Phyllis Pollack
When the parties settle a matter at mediation, I am usually very happy about it. But, I am also conflicted because the settlement creates issues internally that I have yet to resolve. Usually, once the parties settle, they want to document it and leave very quickly. But often, they have not brought a settlement agreement with them. They do not want to spend another hour or so drafting one; they would rather leave and document the settlement over the ensuing days. But doing so provides a party with the opportunity to change her mind and back out. Unfortunately, a settlement is not a settlement until it is signed by all concerned.

Marilyn McKnight: Belief that Mediation Needs to be Separate from Courts - Video (7/17/10)
Marilyn McKnight
Marilyn McKnight discusses how court-connected mediators' first duty is to the court, not the client.

Chapter One of Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law (7/12/10)
J. Kim Wright
This is an Chapter One of Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law by J. Kim Wright. A comprehensive overview of a movement, the book explores many peacemaking approaches including restorative justice, therapeutic jurisprudence, collaborative law and, of course, mediation, plus holistic problem-solving approaches like drug treatment courts. In this excerpt, Wright explores the paradigm shift that is occurring in law.

The Road Less Traveled: A Review Of J. Kim Wright’s Lawyers As Peacemakers: Practicing Holistic, Problem-Solving Law (7/12/10)
Diane J. Levin
The idealism that drew many of us to law school endures, evident in the work of lawyers who have reclaimed their role as compassionate defender of justice, skilled negotiator brokering peace, or principled leader wielding influence. These lawyers have their champions and spokespersons, notable among them J. Kim Wright, publisher and editor of CuttingEdgeLaw.com, an online community and magazine for lawyers. Wright today coaches and inspires lawyers who seek to bring an ethos of care, mutual respect, and humanity to the way they practice law.

Alabama Supreme Court Reduces Attorney’s Fees for Obtaining Settlement in Mediation (7/12/10)
Keith Seat

The Supreme Court of Alabama concluded that the trial court had exceeded its discretion in approving attorney’s fees of one-third of the settlement reached in mediation for the severe burns suffered by a disabled minor in the custody of the state. The lower court emphasized the rapid work by the attorney to marshal evidence and experts in order to provide three bound volumes of documents to defendants, along with preparation of a “day in the life” film shown at mediation, which led to a settlement of $737,000, which was nine times the special damages. However, the Supreme Court noted the lack of time records from the attorney, the fact that he worked on the case for only fourteen weeks, and the willingness of defendants to engage in early mediation to minimize litigation costs. After a detailed analysis of many factors, the Supreme Court concluded that 20% would be reasonable as attorney’s fees, which a dissenting justice argued was just as arbitrary as the higher percentage in the absence of time records.

Madison Co. Dept. of Human Resources v. T.S., No. 1081405 (Ala., May 28, 2010)

Jay Folberg: Oregon Allowing Lawyers to Mediate - Video (7/03/10)
Jay Folberg
Jay Folberg discusses the rough process of getting the state of Oregon to rewrite its ethical standards so that lawyers could practice mediation.

Len Riskin: How Mediation has Integrated within Legal Practice - Video (6/27/10)
Leonard Riskin
Len Riskin describes how mediation has integrated within legal practice: it has sparked collaborative law, a promising enterprise, but it also led to court-based mediations, which he believes are legalistic and adversarial instead of reaching mediations highest potential of bringing parties together.

Hugh McIssac: Concern for the Field - Video (6/25/10)
Hugh McIssac
Hugh McIssac shares his concern of mediation being perverted into a form of evaluation. A court-connected mediator sees clients in highly stressful situations and makes recommendations to the court based on those encounters.

Fairness And Self-Respect (6/21/10)
Phyllis Pollack
In her latest column on Negotiation Tips for the Los Angeles County Bar Association (Volume III, No. 9, June 2010), my colleague Linda Bulmash discusses the dangers of “Take it or Leave it Offers,” noting that more times than not, such offers backfire. Why? Because of “fairness” or at least how “fairness” is perceived by the opposing side. Research indicates that emotion rather than logic takes over; a party would rather say “no” to a deal that may offer some benefit to her if emotionally she believes the offer to be “unfair.”

Texas Mediator Article: 2009 Judicial Survey On Alternative Dispute Resolution (6/21/10)
Victoria VanBuren
In August, 2009 attendees of the annual Texas Judicial Conference were surveyed regarding their attitudes as to alternative dispute resolution processes, with a particular emphasis on mediation and arbitration.

Guido V. Duane Morris: Court Requires Kabuki Dance For Mediated Settlement (6/21/10)
Richard J. Webb
Earlier this year I wrote about the oral argument before the New Jersey Supreme Court in Guido v. Duane Morris. The case concerns the plaintiffs' right to sue their former lawyers for malpractice based upon a settlement the plaintiffs accepted after mediation two years earlier. It required the Court to reconcile two previous opinions, Puder v. Buechel, 183 N.J. 428 (2005) and Ziegelheim v. Appollo, 128 N.J. 250 (1992). In a decision handed down last week, the New Jersey Supreme Court ruled that the former clients could overcome a motion for summary judgment and proceed to trial - essentially to attempt to prove that the settlement agreed to by them could have been better but for the negligence of their former lawyers.

Risk Based Analysis: How Do You Make Your Next Move? (6/07/10)
John DeGroote
It’s no secret I have been on a bit of a Decision Tree kick lately — I just spent two days in one of Marc Victor’s (fantastic) training sessions, and Settlement Perspectives’ series on this important topic continues to grow. Today we’ll explore how one experienced mediator uses a similar approach to prepare mediator’s proposals, and how you can use the same process as you make your next settlement offer.

“The Elephant In The Room” (5/31/10)
Jeffrey Krivis
Your client has brought a spouse or a significant other to the mediation who is having a problematic influence on your client’s decision-making abilities. This is preventing you from getting your client prepared for a fair settlement.

Mediators Drafting Settlement Documents (5/31/10)
Steve Mehta
There is considerable debate amongst the mediation community as to whether a mediator can draft documents for the parties. Some mediators say that doing so leads to them practicing law, whereas others say that they aren’t practicing law by merely being a scrivener. The Wisconsin Bar recently published an ethics opinion on this very issue. I thought that it might be interesting to review. It provides a nice summary of many of the States’ opinions on this issue. The following is an excerpt of that opinion:

“But, You Have A “Great” Chance At Winning At Trial!” (5/24/10)
Phyllis Pollack
In August 2008, I posted a blog entitled “Make the Deal: You Are Better Off,” discussing a study which concluded that settling was better than going to trial. Last week, I came upon another study which indirectly supports this earlier conclusion. Entitled “Insighful or Wishful: Lawyers’ Ability to Predict Case Outcomes,”(study) the researchers concluded that “overall, lawyers were overconfident in their predictions . . .” about success at trial and that the accuracy of their predictions “. . . did not increase with years of legal experience.” (16 Psychology, Public Policy, and Law, pp. 133-157, 133 ((No. 2.) 2010) “Study”).

Mediation to Address Access to SeaWorld Death Video (5/20/10)
Keith Seat

A Florida judge has ordered all interested parties to participate in mediation after granting a temporary injunction blocking release of video of a SeaWorld trainer’s death by an orca. The mediation is expected to address privacy concerns along with the public’s right to information. Mediation in similar cases has sometimes resulted in press inspection of imagery without public disclosure. SeaWorld video from an underwater camera and a camera in the park’s Sky Tower are at issue.

CNN.com (April 6, 2010); CNN.com (March 26, 2010)

We’re The New Generation (5/17/10)
Alexis Sclamberg
Lawyer-mediators have long been litigator-mediators. But the new generation of mediators is changing all of that. Here come law graduates—though they carry their bar certificates with pride, they want to jump right in to mediation rather than spend seemingly endless years in an unfulfilling litigation practice. It is time to welcome us in.

Alternative Dispute Resolution: Perspectives In Mediation (5/17/10)
Jim W Hildreth
Conflict spells “Opportunity” and it is the wise legal counsel that suggest mediation, allowing all options of settlement with a spirit of compromise and open dialog.

Mediators, More Than Anybody, Should Know The Benefits Of Compromise” – Or Should They? (5/17/10)
Lesley Allport
These were words spoken in the context of promoting mediation within court settings in the face of a lack of education about mediation on the part of judges and, surprisingly (?), a lack of enthusiasm on the part of lawyers! The speaker outlined the difficulty there will be in achieving a culture change whereby mediation becomes the default position and recourse to litigation becomes the alternative. Mediators, he continued, will need to ‘give and take’, in order to establish mediation in the Courts. But where is the compromise in mediation? If it is simply about ‘cutting a deal’ or ‘settling for less’ maybe there is some validity in the notion – and maybe this is true for some models of mediation.

The Social Construction Of Mediation (5/17/10)
Phyllis Pollack
Why is “social construction” important? Because it plays a critical role in every dispute and thus in every mediation. Each of us comes to a mediation with our own construct of “reality” of the “true” facts of “what really happened.” We each have our own “story” built on our interactions with others. This is the “story” we bring to the dispute, we tell in a joint session and go into more detail with the mediator in a separate session.

Cognitive Errors In Ligation (5/17/10)
Don Philbin
As a student of decision errors in litigation, I was happy to see another empirical study come out this week confirming what we already know with increasing confidence – even well-trained lawyers are subject to the cognitive errors that throw humans’ calibrations off target. We all have to be confident to get out of bed. Parties assigned to buy or sell a house, car, or lawsuit reach different valuations depending simply on which side of the trade they are assigned. And if we think we have some measure of control over the outcome, of course our chances of reaching it are increased. Add to that the ethical obligation of zealous advocacy and you have the caldron from which overly optimistic case assessments flow.