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?

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

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?

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”

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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U.S. Department of Labor Sets New Rule for Handling ERISA Disability Claims

U.S. DOL Sets New Rule for Handling ERISA Disability Claims

DOL.12.16.Fact Sheet

Federal Register.ERISA.12.19.16

Like it or not, the new DOL Final Rule amending the disability claims handling and appeal procedure at 29 C.F.R. §2560.503-1 will work a significant change in the administration of ERISA-covered disability claims. The Department of Labor states that these procedures largely parallel those used for group health benefit claims under the Affordable Care Act. The Rule became effective on January 18, 2017 and applies to all disability claims filed on or after January 1, 2018.

The preamble to the rule – which is an interesting historical overview and summarizes many comments that were submitted in response to the first version of the rule – states:

“Even though fewer private-sector employees participate in disability plans than in group health and other types of plans, disability cases dominate the ERISA litigation landscape today. An empirical study of ERISA employee benefits litigation from 2006 to 2010 concluded that cases involving long-term disability claims accounted for 64.5% of benefits litigation whereas lawsuits involving health care plans and pension plans accounted for only 14.4% and 9.3%, respectively.”

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Short Lives. Rich Lives.

short-lives-rich-lives

Life is short. Some short lives are longer than others. Some short lives are full of love, good health, happiness, and fulfillment. Some short lives are troubled by countless struggles, tragedies, and suffering. Of course, most of our short lives are a mix of it all.

I visited Vancouver last week for a mediation conference. Every time I attend this particular conference, my world expands with greater knowledge and insight. The job of a mediator is to help people resolve conflicts. Conflicts are consuming – they eat up valuable chunks of our lives and business. And so we search for solutions that preserve resources and save time.

Which brings me back to my focus on our short lives, and how my first visit to Vancouver will forever influence my perspective on how I use my time and what I value.

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With All Due Respect, Your Honor, . . . (Mediators Are Available to Everyone. Los Angeles County Does Not Have a Two-Tiered Justice System.)

With All Due Respect.16.09.02

Yesterday, I read with great distress the Op-Ed piece written by Judge Michael Stern in the Los Angeles Times. The apparent purpose is to convince California legislators to appropriate more of its budget to the Los Angeles County court system. However, Judge Stern argues that the budget cutbacks have resulted in “a two-tiered judicial system; a speedy private one for the rich and a protracted public forum for the less advantaged.”

Playing the haves-and-have nots card is usually a reliable way to generate passion these days. But the picture Judge Stern has created is faulty – like a trompe l’oeil painting – because it is based on the questionable assumption that an adjudicated result is the only “fair” result and a fuzzy description of dispute resolution options available to the public at large.

I think everyone would probably agree that the Los Angeles County Court system is backed up and vital resources have been lost as a result of budget cuts. I completely disagree that the backup has created a good system for the rich and a bad system for the poor.

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