Mediation

Rande Sotomayor Inducted into National Academy of Distinguished Neutrals

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Read as a PDF We are pleased to announced that Rande has been inducted into the National Academy of Distinguished Neutrals (NADN). The NADN is an invitation-only association of ADR professionals distinguished by their hands-on experience in the field of civil and commercial conflict resolution. Click here for our recent newsletter announcement.

“Remote” Mediation – Not Just for Pandemics?

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Mediation is a human-centered process of resolution. Whether the party is a giant corporation or a single individual, problems arise and are resolved through people. The emotional connections, relationships, and trust that are the basis for any deal usually demand in-person contacts. 

But this is 2020, and business has decentralized, internationalized, and exploded into the “cloud.” People enjoy new freedom to work remotely from anywhere. Business travel is expensive and time-consuming. 

We have been using technology in mediation for a long time. Briefs are mostly e-mailed. Large exhibits are shared through cloud storage services like Dropbox. Participants bring PowerPoint presentations on flash drives. Settlement agreements are generated, transmitted, and often signed electronically. So far this is the technical end of the mediation. What about the vital human connections that make or break the process? 

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New Beginnings – Rethinking “Readiness” for Mediation

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The Chinese Lunar New Year begins on January 25, 2020. This is a Year of the Rat. As the first animal in the Chinese zodiac, the Rat is associated with cleverness, success, energy, wealth, wellness, and overall renewal.

You might see this as a great year to really bring your New Year’s Resolutions to fruition. I think it is a great year to rethink your approach to mediation. These days, mediation looks more and more like litigation, the risky, adversarial alternative that mediation is intended to avoid.

In the world of 2020, “preparedness” for the risks of damage from natural, technological, and political disasters is at the forefront of many people’s minds. Preparedness is about being ready to withstand attack or adversity. Preparation includes things people do to get ready. Being “prepared” for mediation requires doing a lot of things and being ready for the adversity participants will have to contend with in negotiations.

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Words Matter. Tone Matters. Get Results.

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I just returned from the 15th ICC International Commercial Mediation Competition among law and business students from around the world. Held each February in Paris, it is a mediation negotiation and advocacy tournament in which teams of two students serving as client and attorney try to “win” the mediation session and advance until the remaining two teams face off in the final “match.” The scoring is based on criteria including effective Opening Statements, Advancing Your Interests, Teamwork between Counsel and Client, Information Gathering and Ascertaining the Other Party’s Interests, Seeking to Collaborate with the Other Party, Working Together to Develop Options, and Making Good Use of the Mediator.

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Evidence Code Section 1129 – Are You Complying?

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Check out my article in the August 2019 issue of The Advocate magazine on California’s Evidence Code Section 1129. You can read it online here  or download the pdf version. The new section requires attorneys and their clients to sign a printed disclosure of mediation confidentiality restrictions, including the fact that even private attorney-client communications cannot be used if the clients sue for malpractice. … Read more

Notre Dame and the Forces in Mediation

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On April 18, 2018, the Daily Journal published my article comparing the forces of destruction and creation in the 856-year history of Notre Dame to similar forces in the cycles of litigation and mediation, and in the ways that advocates participate in the processes. Click here for the online version or download the PDF version.

Self-Determination in Mediation

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Parties and lawyers involved in mediation – and to a large degree mediators themselves – often pay lip service to the theory of self-determination that underlies the process. In fact, many cases demand (and most lawyers hope for) a mediator who can “beat up” both sides to hammer out a deal.

I am continually uplifted by the wisdom parties often demonstrate if given the chance to participate meaningfully in the mediation process. In the United States, parties often play little or no role in mediation; they sit there silently, glad not to have to say anything, and relieved that their lawyers can do all the talking for them. Usually I encourage the lawyers and parties to engage in a joint session, and usually I face strong opposition to that part of the process. The joint session develops useful information and provides the opportunity for the clients to preview their opponents and the lawyers, and get impressions of how the stories will play in court.

Usually everyone is pleasantly surprised at how useful a joint session turns out to be. But not every case is the “usual” case. In fact, every case should be treated as unique, and so mediation must be tailored to the situation. That means that sometimes, the process is re-ordered or a joint session takes a different form.

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What’s in a Logo?

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What’s in a Logo? May 2017

In 2010, when I opened my mediation practice, I was excited about selecting a logo to help “brand” my business. I was transitioning from what was principally a litigation practice to the business of helping parties make peace. At the printing shop, the owner placed before me a GIANT book of symbols; it was probably three inches thick. While I fanned through the pages, one caught my eye:

I couldn’t take my eyes off of it. It seemed to represent everything that I confront, manage, and strive for in mediation: paths that diverge yet come together, a central core, opposing images and tracks, balance, equality, closure, beautiful symmetry, simple elements, complex interactions, and even a gift. To me, the gift is one of resolution and peace.

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“Elements of Style”

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Elements of Style

Last week I attended a memorial service for a 61-year-old businesswoman, wife, and mom. I didn’t know Tamara well, only through my chamber of commerce, but she touched me gently and deeply whenever I saw her. So much about the service, and her, was unforgettable.

It turns out that Tamara was a local icon of sorts, a business leader and visionary grounded with compassion, common sense, and humility. The speakers at the ceremony all hailed her many talents, but the funny thing was that there were so many stories about her fashion sense, or rather, her lack thereof.

As an owner of an in-home care service for seniors, Tamara wore a uniform of sorts – everywhere. Every speaker at the service described her regular outfit – a modest, crisply ironed button-down blue shirt with company logo and ¾ length sleeves, business slacks, and “sensible” shoes. Everyone, from the pastor to her colleagues to her family, couldn’t help but comment on Tamara’s lack of style.

One non-profit director told of dressing as Tamara’s twin for three monthly meetings in a row, but she lamented that her outfit never seemed to quite match up and nobody even noticed the joke.

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