Finding Middle Ground: Mediation

I have pasted a short article below which provides a simple but useful explanation of mediation and why it can be a better solution for many people to resolve their disputes. The article - "Finding Middle Ground" - is from the Savannah Morning News out of Georgia and a link to the article is here.

"SOMETIMES, THE parties in a dispute can work things out more amicably in a less formal situation.

That's why the decision by the Chatham County Superior Court to require mediation for much of their caseload makes sense.

Although the parties may also be represented by legal counsel at a mediation, the process allows for factors to be brought up that might not be admissible as evidence in court. Facets of a disagreement such as how a person was affected emotionally can be considered in mediation, when they might otherwise never be heard in court.

Another positive aspect is that while mediation cannot resolve questions of law, the agreements that are reached via mediation are based in equity: What the parties agree to be fair.

By reaching an agreement in this fashion, the parties need not emerge from the procedure as winners and losers, as in a court battle.

The more fluid give-and-take of mediation allows for each side to have input in the outcome, rather than a decision being imposed upon the losing party by a judge and jury.

In mediation, a neutral third party typically meets with those involved in the dispute, both together and separately, before coming to nonbinding suggestions on how to end the controversy.

While the practice - typically viewed as a method to settle arguments between unions and big business - has seen more use in civil cases in recent decades, mediation has a long history as part of U.S. law.

In fact, American settlers used dispute resolution to settle issues very early on. Historians also note that George Washington included a mediation clause in his will to settle arguments among his heirs, and Abraham Lincoln served as a mediator in a boundary dispute between two farmers.

Two simple factors keep mediation a valid part of current dispute resolution: Time and money.

It is usually cheaper for the parties and the courts for disputes to go to mediation, those involved in the dispute can find resolution more quickly, and mediated issues lighten the Superior Court's caseload, which can number in the thousands for civil cases alone."

When Might Arbitration Be The Right Choice to Resolve Your Dispute?

I have posted prior articles detailing the differences between arbitration and mediation here and here, with the main difference being who is charged with deciding the outcome. Mediation allows the parties to create a settlement on their own terms with the help of the neutral mediator whereas arbitration involves a decision being made for the parties by the neutral arbitrator after hearing evidence and testimony.

As a trained and experienced practitioner of both arbitration and mediation, I do not hesitate to disclose my bias toward mediation as opposed to arbitration as the best method to resolve most disputes. However, I have seen the benefits of arbitration in some circumstances and will discuss these circumstances below.

I am not reluctant to make decisions for people in order to help them resolve their dispute in arbitration because I am interested in general in helping people resolve disputes. However, I am generally convinced that a better solution for everyone involved could be reached if the parties and their counsel put their heads together with a skilled mediator to widen the pool of options and get creative in figuring out how to meet the needs of all parties. A solution that comes from the parties themselves (i.e., mediation) usually feels more acceptable and satisfying to the parties because it has not been imposed - it has been mutually reached by the parties. There is no winner or loser in mediation since the goal is to create win-win situations every time. This is not the case in arbitration - in which there is typically a winner and a loser.

Although I have seen phenomenal results from mediation, it is true that mediation does not solve every dispute on the day of mediation. This may be due to many factors which are not controlled by the mediator: lack of key information, lack of settlement authority, unrealistic parties and/or attorneys, parties who refuse to actively engage in the mediation process, or other emotional obstacles to decision-making by the parties. Often mediation helps get the parties closer to where they need to be and they settle after mediation as a result of the mediation itself or the follow up calls made by the mediator.

Because mediation is not 100% guaranteed to settle the matter on the day of mediation, parties seeking finality regardless of the outcome may prefer arbitration just to have a set ending point. Many parties start with mediation because it is faster and less expensive than any other dispute resolution method and results in the most satisfaction to the parties. Arbitration or litigation is still the backup method to solve the dispute in case a settlement cannot be reached at mediation. However, some parties or attorneys choose to skip mediation and dive right into arbitration to have a guaranteed result to end the dispute one way or the other. I have three recent examples of this phenomenon in action:

1. In a personal injury car accident, the plaintiff's counsel prepared a detailed settlement demand to the insurance carrier for the defendant. The response from the carrier indicated the parties were nowhere close to seeing eye-to-eye on issues of liability and damages. Plaintiff's counsel made a strategic decision to demand arbitration right away based on the attorney's experience with the particular carrier involved. Had it been a different carrier involved, the attorney may have recommended mediation first knowing the likelihood of settlement is typically high, just not so with this carrier.

2. In the case of neighbors in a property/land use dispute, the parties were warring for so long that they refused to consider even sitting down to a mediation. This was despite the fact that the case was ideal for mediation in needing a creative and collaborative outcome and despite the fact that they all needed the dispute to be over because of the financial loss and turmoil the dispute caused the parties and their families. Instead, the parties wanted someone qualified to "choose" the winner for them. The parties were satisfied with an outside neutral person making the decision and putting the dispute to rest at last through a binding arbitration award.

3. Finally, there are times as a mediator when I recognize that decision-making itself is simply a difficult task for some people. Although I sometimes see this in neighbor disputes, I more often see this in family law matters. I often have family mediation clients ask me to serve as their arbitrator in the event that they cannot reach their own agreements. I have not had to do this as the parties have surprised themselves (if not me) by reaching agreements and making tough decisions that will affect them for the next 10, 20 or more years. And they have done this through mediation despite the fact that they were unable to do this privately without a mediator.

Although my own preference would be to stay in control of the outcome if it was my dispute, I recognize that arbitration might be the more desirable option in some cases for some people. There are situations in which arbitration is the wise choice - whether to get a guaranteed end to the dispute through binding arbitration by a date certain or to alleviate the difficult burden of having to make tough decisions and leaving it in someone else's capable hands to resolve the dispute for you. It is precisely because of these situations that I offer arbitration services despite my championing the great results that are achieved through mediation every day.

Property Disputes Solved With Mediation

Property disputes can be resolved with less time and money through the use of mediation instead of drawn-out and expensive litigation. While some property disputes arise out of real estate purchase deals, other property disputes have more to do with property use. I mediate (and arbitrate) all types of property disputes and am called on about half of the time to mediate purchase-related disputes and half the time to mediate these other "property use" disputes.

Property use issues can include: adverse possession, boundary disputes, construction disputes, environmental contamination issues, landlord and tenant matters, and other "use" issues which can arise between a homeowner/landowner and neighboring landowners, a city, or a homeowner's association.

While real estate purchase agreements generally require mediation of any disputes (see prior post on that issue here), other property use disputes typically find their way to mediation or arbitration because of the financial cost and risks associated with court litigation.

Experienced attorneys as well as landowners, landlords, tenants, cities and HOAs also understand that there is often much more to property disputes than just who owes what to whom. Money might be a central issue in certain disputes, but there is usually much more to it than just money. More creativity is generally required to find solutions that will work for the parties' unique circumstances and disputes or that will improve the parties' ability to communicate and work productively together to find workable solutions.

Mediated solutions are not limited to the current dispute but also include figuring out how the parties can prevent and/or resolve future problems to avoid having to start down this path again. Such proactive solutions help the parties to reduce stress and monies spent in future disputes and therefore provide long-term cost savings to the parties as well as the mental health benefit!

These types of issues are not touched on - much less resolved - through the use of adversarial and contentious litigation. Mediation allows for the exploration of creative solutions that are more tailored to meet the specific needs of the parties than litigation allows for. And having the dispute resolved within weeks with mediation versus months or years with litigation is yet another great benefit!

Mediation Tips for Attorneys

The primary goal of mediation is to help the parties resolve their disputes. As a mediator, I do not represent any of the parties or their individual interests; instead, I am neutral, meaning I am not biased toward the interests of any one party over another. That is the job of the attorneys in the case.

Although it is the job of the attorneys to promote and protect the interests of their clients, there are certain things attorneys can do to help the mediation process (and to help their own clients) which may differ from the strategies attorneys typically employ in litigation. These are my "tips" for a successful mediation.

Preparing For Mediation: I often see attorneys who spend considerable time preparing their clients for depositions but almost no time preparing their clients for mediation. As attorneys, we are so familiar with mediation and the distinctions between trial, arbitration and mediation, that we often forget that part of the job of the attorney is to "translate" the legal world for our clients and to prepare them for what to expect at each stage of the case, including mediation. Clients need to be prepared for the mediation process, including the environment, the level of formality/informality, who will be present, who will be making decisions, how long the mediation might take, what the role of the attorney is and what the client's role is and how the client should prepare for the mediation.

One of the best ways I know to prepare a client for mediation is to explain how litigation works in the real world. This means explaining that although offers and demands may be exchanged, each side must constantly re-evaluate the merits and challenges of their case during litigation based on new facts or information that comes to light or is viewed in a new light. Each side continually determines the potential value of the case and what the merits and challenges are of the alternatives to settlement. The case value and alternatives are not static - they are constantly changing in often unexpected ways. Trial attorneys understand this phenomenon but we need to be sure our clients understand this as well. The more the client understands the constant re-evaluation required in litigation, the more the client will be thinking realistically about a fair resolution at mediation under the unique circumstances of the case because, just like other proceedings or stages of a case, mediation often results in the discovery of new factual or legal information that significantly impacts the case; attorneys and clients must be prepared for this in order to re-evaluate their case and reach a fair settlement.

This does not mean the client must sacrifice his or her needs or interests in mediation - quite the contrary actually. Clients are frequently "stuck" at a certain mindset or settlement value based on what they have heard from their attorneys (or their friends who are not involved in the case) instead of thinking about their own interests, motivations and needs. The more realistic the attorney is up front about the value of the case and the challenges and costs involved and the constant re-evaluation that is needed, the more prepared the client will be to enter into a fair and reasonable settlement at mediation based on all of the information.

The Mediation Process: Whether your mediation is required by contract or court order or is completely voluntary, the mediation process is different from a court hearing or trial and has unique benefits for your individual client. Your clients are paying not only for the mediator's time but for the mediator's skill and experience in resolving disputes. Trust the instincts of your chosen mediator to do the job for which she or he has been entrusted to perform and to guide the process in a way that satisfies the needs of the parties on multiple levels and allows a settlement to be reached.

The mediator can use all the insights and information the attorney has to offer which can help illuminate the underlying interests of the parties, bridge gaps between the parties and arrive at an agreeable resolution. The more information you can provide your mediator, the more tools the mediator will have to work with. Feel free to talk to the mediator one-on-one with any information you think might be helpful. You can do this before or during the mediation and attorneys should prepare their clients for the possibility of this happening. As a mediator, I always let parties and their clients know that I may use private meetings with each side or just with their attorneys on occasion, and that the confidentiality of these meetings can be enormously productive in helping to get the case resolved.

Think Holistically: Your client came to you not because he or she enjoys litigation (if so, you have larger issues to deal with!). Your client came to you so that you could solve a problem for them. The question for the attorney is whether a proposed settlement is in the best interests of your client. Your client may or may not know what is in his/her best interest and relies on your legal knowledge and recommendations. The best interests of the client are not always met with discussions focused only on money. Although money-focused discussions are often a central discussion point, frequently, it is the non-financial discussions which help seal the deal.

As the attorney, you want what is best for your client and you want a settlement you can feel good about. I want the same thing; the only difference is that I want all parties and their attorneys walking away feeling good about the mediation process and the settlement that was reached based on the unique facts and circumstances of each particular case.

Mediation of Transactional "Disputes" - Contract Negotiation

About a quarter of the mediations I conduct are not mediations to resolve litigated disputes but are instead mediations of contract negotiations. In these transactional mediations, there is no actual dispute. In fact, the purpose of the mediation is to prevent an actual dispute from arising, causing the negotiations to break down entirely or to result in litigation.

As a mediator, I am hired to help parties work toward and arrive at agreeable terms and specific language for their contract while preserving the professional and personal relationships of the parties.

As in any mediation or contract negotiation, whether it is for a business or real estate deal, an employment agreement or a prenuptial agreement, one of the purposes of transactional mediation is to help the parties communicate productively. I work to make sure the communications do not devolve the negotiation process into an adversarial contest that damages the relationship of the parties.

One of the ways I do this is by posing some of the most difficult questions to each party myself rather than having the parties appear to be attacking each other by asking the difficult questions necessary in most contract negotiations. Using this method of communication allows me to deflect some of the tension and defensiveness away from the parties and to minimize the adversarialness between the parties which ultimately helps the parties reach a well-thought out and durable agreement.

There is a real sense of team-work in transactional mediations that is not always present in mediated litigation disputes despite the best efforts of the mediator to foster such a sense of working together. Transactional mediation is not just contract negotiation, it is also relationship preservation and, often, improves the parties' ability to communicate productively with each other in the future.

Mediator Move in Progress....

I am in the process of moving to a new suite of offices in my building. My regular weekly posts will resume shortly and I plan on posting some pictures of the new mediation space I'm so excited about!! Stay tuned.....

Mediation & Arbitration: Keeping Businesses Out of Court

I recently came across an article in the San Francisco Chronicle which discusses basic concepts of mediation and arbitration in the context of helping businesses consider ways of minimizing the costs associated with court litigation.

I have pasted the full article below and also provide a link to the electronic article at sfgate.com. The February 14, 2007 article by AllBusiness.com is titled: "How arbitration and mediation can keep businesses out of court."

Litigation is an expensive, frustrating and generally inefficient way to resolve disputes. That's why alternative dispute resolution (ADR) is becoming an increasingly popular means of resolving lawsuits before trial and of avoiding litigation altogether.

ADR includes both arbitration and mediation. Although they are different procedures, their goal is the same: to minimize the expense and delay associated with litigation. Numerous public and private organizations provide both mediation and arbitration services.

Arbitration is an adversary proceeding in which parties present evidence and arguments before a third party (or panel), who then decides the dispute much like a judge would in a trial.

An arbitrator can be a judge but is more often an attorney or expert, depending on the subject matter. Usually, the parties agree on the arbitrator beforehand.

Arbitration can be voluntary, judicially mandated or contractual; and the outcome of an arbitration can be either binding or nonbinding (advisory).

In binding arbitration, the parties agree in advance that the arbitrator's decision or monetary award will be final. It's a substitute for a court proceeding and cannot be reviewed or overturned, except under very limited circumstances.

In nonbinding (advisory) arbitration, the decision is not final, but rather intended to help guide the parties toward settlement.

Many contracts today, including collective bargaining agreements and health care benefit packages, contain provisions that compel binding arbitration of disputes. In negotiating any contract, parties may agree in advance to arbitrate almost any dispute.

In mediation, a third party attempts to facilitate communication and compromise between parties in conflict. Mediation is not a legal proceeding, although it can occur during the course of a lawsuit.

Unlike arbitration, the neutral party's role is not to decide who wins but to bring the parties closer together and help overcome obstacles to settlement. The actual structure and conduct of a mediation is usually much less formal than an arbitration.

While an arbitrator's role is generally passive, a mediator may become aggressively involved in trying to settle a dispute.

Many mediators will meet privately with each side and point out the strengths and weaknesses of their respective positions. The mediator also will typically communicate settlement proposals back and forth and help the parties react to those proposals.

Mediation is almost always voluntary and cannot be imposed on the parties, although some courts may require the parties in a lawsuit to attempt to mediate their dispute before the case goes to trial.

--------------------------------------------------------------------------------
Using ADR
Cases suitable for arbitration include:

Construction contracts

Commercial contracts

Banking disputes

Intellectual property

Medical malpractice

Employment discrimination

Multiparty disputes

International disputes

Cases involving critical public employees, such as police officers, teachers and firefighters

Cases suitable for mediation include:

Business disputes

Partnership disagreements

Contract issues

Leases

Will contests

Employment issues

Divorce

Nonviolent crime

Negotiating arbitration

If an agreement includes an arbitration clause, negotiate the terms. For example, you might want to provide for three arbitrators instead of one or require that certain rules be followed. You can find details about arbitration and mediation rules and find professionals at the American Arbitration Association (www.adr.org).

AllBusiness.com provides information about products and services for entrepreneurs, small businesses and professionals to start, manage, finance and build a business. Visit www.allbusiness.com.

This article appeared on page C - 4 of the San Francisco Chronicle

Mediation Styles for Participants to Consider

Mediators acquire many useful tools in learning to put their natural peacemaking and collaboration skills to good use in the field of mediation. One of the tools is the choice of style.

Although there are numerous mediation styles, there are three main ones which most mediators employ, and which many attorneys familiar with mediation are aware of. The three main styles are: Evaluative, Facilitative and Transformative. Each style is employed in different types of disputes and with different types of disputants and most mediators take skills from each of these main styles in each mediation to accomplish various goals in each individual mediation.

Many authors of mediation technique discuss these styles in depth and I will not do that here. I will just provide a brief, broad sketch of each style so that mediation participants, who are unfamiliar with particular mediation styles, can take this basic information and think about what might make the most sense for their own disputes or relationships and to discuss in more detail with their potential mediators.

In "Evaluative Mediation," the mediator hears the cases presented by each side and, without actually making decisions as to who is right or wrong, evaluates the merits of the case, evaluates the likelihood of success for all parties to the dispute if the case has to go to trial, and helps all sides get a better reality test of what the alternative to settlement will be. Evaluative mediators often have backgrounds as trial attorneys or judges and use the skills developed in those arenas to give very useful information to parties who are mediating a case that might otherwise go to trial.

In "Facilitative Mediation," the mediator hears the cases presented by each side and asks questions to get to underlying interests which may not be apparent from the surface disputes. The mediator elicits information as well as creative ideas for resolution from the parties themselves, but focuses on resolving just the dispute at hand. The focus here is on meeting the needs and interests of all parties in a way that results in a win-win for everyone instead of a winning side and a losing side.

In "Transformative Mediation," the focus is on transforming the relationship of the parties or their ability to communicate in a productive manner instead of just solving the immediate dispute. This mediation style is extremely useful in disputes in which there is a continuing relationship between the parties and mediation is being used to solve not just the current dispute but to help prevent future disputes since the parties either have a continuing business relationship or they have children together and must find a way to cooperate in a meaningful way.

This is a broad overview of these three main mediation styles. As a participant to mediation, you may wish to think about how each of these styles may benefit you. You may also see how a little of each of these styles might be even more beneficial. You can discuss these styles and what you wish to accomplish in mediation with your own prospective mediators or in pre-mediation conferences with a chosen mediator. Best of luck to you!

Information for Students of Mediation

As an alum of UC Hastings, I recently had the privilege of participating in a "Small Firm Table Talk" in which dozens of current law students sit down to chat informally and one-on-one with dozens of solo and smaller firm practitioners. The purpose is to allow law students to explore different fields of law as well as alternatives to jumping into large firms which may not provide the career satisfaction for which many graduates are searching and which many of us have found.

In addition to speaking with students who were interested in the legal fields of employment law and family law (two of my specialties), every student who found his or her way to my table wanted to know all about my mediation practice. Some of the more common questions I received were along these lines: "How did you get started in your mediation practice and what do you recommend I do while I'm in law school to help me become a mediator later?"

One of my suggestions to students was to get involved with one of Hastings' well-respected clinical programs, the "Center for Negotiation and Dispute Resolution" which gives classroom training as well as hands on training with real cases to mediate through the "Mediation Clinic." I also recommended community-based mediation programs and trainings if the Hastings Mediation Clinic was not an option or in addition to that course and fieldwork.

As additional advice for those students, or any other potential student of mediation, I would like to guide you to mediator Vickie Pynchon's always interesting and useful blog "Settle It Now Negotiation Blog." I have pasted a short but helpful excerpt here for potential mediators and provide the link to the full article on "How to Start a Mediation Practice" so you can read more details and advice from Vickie's own experiences.

Here is the excerpt:

MY BUSINESS PLAN
When first asked for my “business plan” by someone for whom planning does not mean picking up Chinese on the way home, I had only five principles at the ready:
1) Be conscious;
2) Be teachable;
3) Be of service;
4) Always say “yes” to a mediation request; and,
5) Be the exception to the rule.

That was it.

Well, and Also, I . . . . . . gave my new business a name (duly registering it with the proper authorities), “bought” it business cards (free at Vista Print) and built it a web-site (with Yahoo’s free web builder).

Then I dove off the cliff by (gasp) quitting my day-job and

• joining every professional organization where my market was likely to congregate;
  sticking out my hand to say “hi, I’m Vickie Pynchon” whether I wanted to or not;
  taking every mediation class that intrigued me;
• volunteering my mediation services – mainly on the Los Angeles Superior Court Pro Bono Panel – so that I could practice my skills before rolling them out to former colleagues;
  talking passionately about mediation whenever asked;
• writing articles about my new profession and submitting them to publications (which always need content);
• asking seasoned mediators if I could observe them in action and for tips on commencing a mediation practice;
• offering to be of service whenever I could to whomever I could;
• speaking about mediation and negotiation skills to attorneys free of charge;
• speaking to local business groups about matters of interest to them;
• attending law related and mediation conferences and workshops;
• taking people in my market out to lunch; out for coffee, etc.;
• becoming engaged in community activities again;
• liberating my frustrated inner ad-executive by making post-cards about my new practice and filling them with catchy slogans and useful information;
• being of service to the organizations I joined (they always need volunteers); and,
• making too many plans, so that when some of them didn’t pan out it was ok with me.

"Mini me" - Fun with Yahoo! Avatars

This morning I am having fun creating a cartoon version of myself using Yahoo! Avatars. Sometimes we need a bit of comic relief. Try it yourself!

Unrepresented Parties in Mediation: Is It A Good Idea?

In my last post I discussed the fact that more and more contracts have "mandatory mediation" clauses requiring that the parties mediate their disputes before arbitration or litigation can be pursued. What this means is that more people are having to decide whether or when to hire an attorney if they are not planning to file a lawsuit right away but will be mediating the case first.

The Question: Is it a good idea to enter mediation without legal representation? The Answer: sometimes yes, sometimes no.

When the dispute involves unrepresented individuals on both sides of the table, there is generally a fairly even balance of power and knowledge. A mediator can work with both unrepresented parties to ensure all of the necessary information has been disclosed and that the agreements reached are inherently fair. This is an example of when legal representation may be unnecessary for a fair result.

When the dispute involves a "sophisticated" company with decades of experience in negotiating deals (think national corporation or real estate broker) on one side and an individual who has little to no experience negotiating such deals or little to no understanding of the extent of his legal rights in the event of a lawsuit, this often results in a serious power imbalance. There is a significant chance that such a power imbalance could only be corrected when the individual has his own attorney to provide advice before, during and/or after the mediation and before any settlement agreement has been signed because the mediator cannot give such legal advice.

Likewise, with two disputing individuals, if only one of the parties is represented, there is a good chance that the same problem of power imbalance may be present. This is because only one side is being told her rights and obligations and possible outcomes in court while the other side is ignorant of the possible remedies she might have. It is likely to be an unfair negotiation which can easily result in an unfair resolution. This might not happen if that party has the same benefit as the other party of legal representation and advice.

Mediators cannot provide legal advice because we are neutrals and not attorneys in our role as mediators. Therefore, the mediator who recognizes a clear power imbalance which cannot be rectified through the open exchange of all necessary information in the dispute or through other means available to mediators (separating parties to defuse aggressive behavior or working to improve the communication skills of the parties, etc.) generally will advise the unrepresented party or the relatively "unsophisticated" individual who is negotiating with a powerful company of the importance of seeking legal representation in that situation. Some mediators may even refuse to continue such a mediation where it is clear such a power imbalance will negatively impact the unrepresented individual.

Some parties come to mediation without attorneys but they have an attorney they are paying on an hourly basis to give advice before the mediation or to review the settlement agreement after the mediation. In fact, it is a requirement I have in divorce mediations that the parties get independent legal advice prior to signing the settlement agreement. This way everyone is assured that the agreements reached and settlement terms agreed to are fair to all parties and their own attorneys. Divorce cases involve specific complexities which, in my mind, require independent counsel's involvement, at least before the agreement is signed. This is not always the case in other civil disputes.

Some mediating parties consult with an attorney throughout the mediation process but don't bring their attorneys to the mediation itself. This can work very well in a case where the legal issues are not too complex and the dispute is more fact-based. The parties may choose to call their attorneys from the mediation and run potential agreements by their attorneys and get legal advice during the mediation in this way. Other parties only consult with an attorney to review the proposed agreement. Sometimes, the extent of an attorney's involvement in mediation just depends on how much money the party was able to scrape together from the change jar to pay for a portion of the mediation and several hours of the attorney's time. The more complex the legal issues or power dynamics, the more it makes sense to get and keep attorneys on board throughout the process.

The flexibility of the mediation process is one of the things I love the most about mediation as a dispute resolution method. Whether or when to bring in independent attorneys depends on the nature of the dispute, the complexity of the issues and possible remedies, the relative sophistication of the parties and their interactions together as well as what the parties themselves are comfortable with and what the mediator sees as a fair negotiation.

Mediation as First Required Step in Contract Disputes

It is increasingly common to find "mandatory mediation" clauses in contracts. This is true whether the contract is a property purchase agreement, a construction contract or any other business or personal agreement which was put in writing and in which somebody thought to include mediation as a first step in any dispute arising out of the written agreement.

When such a provision is included in a contract, the parties are required to meet together with a mediator in an attempt to work out a solution before anybody heads to court to file a breach of contract or other lawsuit. This helps everyone involved save the time and money generally required to hire an attorney and file a lawsuit or hire an attorney and defend a lawsuit.

Such a mandatory mediation provision essentially forces the parties to consider ways to resolve their disagreements in a structured and private forum well before it becomes a public dispute playing out in the courts and possibly the press.

This "mandatory mediation" of such disputes is also the first time the parties may each be required to spend money out of pocket towards the dispute. This first pay out is usually slightly painful, but it is minimal compared with the pay outs required of everyone in the event the parties are unable to work out a solution and must proceed to court litigation.

In my next post, I will explore the pros and cons of mediated cases in which one or more parties have decided to not hire attorneys. This may be a cost-saving measure for parties, but is it the best course of action? More on this in my next post...

"Getting Past No" with Joint Problem-Solving

As part of my ongoing education as a mediator and also as someone who is interested in communication and negotiation issues in general, I am always reading books and articles to further enhance my own negotiation skills and knowledge. This ongoing education benefits my work as a mediator and as an attorney.

I am currently reading William Ury's book "Getting Past No" which was the follow up book to "Getting to Yes" written by William Ury and Roger Fisher in the 1980s. "Getting Past No" was written in the early 1990s but is still referenced by many mediators and negotiators as one of the must-reads for a professional mediator. And it remains highly relevant for anyone interested in improving their negotiation skills in business or in personal matters.

Here is short excerpt regarding joint problem-solving : "We may all be negotiators, yet many of us don't like to negotiate. We see negotiation as stressful confrontation. We see ourselves faced with an unpleasant choice. If we are "soft" in order to preserve the relationship, we end up giving up our position. If we are "hard" in order to win our position, we strain the relationship or perhaps lose it altogether.

"There is an alternative: joint problem-solving. It is neither exclusively soft nor hard, but a combination of each. It is soft on the people, hard on the problem. Instead of attacking each other, you jointly attack the problem. Instead of glowering across the table, you sit next to each other facing your common problem. In short, you turn face-to-face confrontation into side-by-side problem-solving."

I recommend this book for everyone. Not a difficult read, but definitely worth the effort.

Celebrating 1,000 Hits

When I first started this blog in August 2006, I didn't have a way to track the number of "hits" to see if anyone was actually reading my articles. And it was clear that looking at the number of "Profile Views" doesn't quite do the trick since return readers generally have no reason to check out my profile when they're checking back for new articles. But I wanted a way of knowing that the information I was posting was actually reaching people.

So I saw a discreet site meter on someone else's website, followed the link and created my own site meter for this blog. I also ensured that my own visits would be ignored since I view the blog often to make changes or post new articles but certainly don't want those counted. But because the site meter is fairly small and located at the very bottom of my blog, I don't always see it. And that is why I didn't realize I'd passed the 1,000 mark! (1,122 as of this moment). Wow. It's great to know that the information I am providing is reaching people, some of whom call or write, but others don't..... and yet, I still know that you're out there and taking the time to read what I've taken the time to write - for you. Happy 1,000 to SFMediation.com!!

Mediation Required in Real Estate Action for Prevailing Party to Recover Attorney's Fees

In real estate disputes, "Seeking mediation is a condition precedent to the recovery of attorney fees by the party who initiates the action." (Johnson v. Siegel (2000) 84 Cal.App.4th 1087)

In California, litigants are expected to pay for their own attorney's fees unless there is a special law or contract provision stating otherwise. And there are special provisions in most real estate purchase agreements which provide that in the event of a lawsuit between the buyer and seller, the "prevailing party" of the lawsuit is entitled to recover attorney's fees but only if the party who filed the action first attempted to resolve the dispute through mediation. That means the losing party has to pay his own attorney's fees as well as the winning party's fees - but only if mediation was attempted first.

Several days ago, the California appellate court confirmed in its ruling in Van Slyke v. Gibson that it is the party filing the lawsuit who is required to request mediation of the real estate dispute first and not the party who was sued. If mediation is not successful, then a lawsuit or arbitration can be pursued and attorneys' fees will be paid by the losing party to the prevailing party - regardless of whether the prevailing party is the plaintiff or the defendant.

In the Van Slyke case, $94,974 was at stake as the defendant seller prevailed in the lawsuit brought by a prospective buyer and then sought to have that prospective buyer pay almost $100,000 for the attorneys' fees the seller incurred from the litigation. The trial court ordered the prospective buyer to pay that amount to the seller. The award was confirmed on appeal and the appellate court also ordered the prospective buyer to pay the defendant seller's attorneys' fees incurred on appeal.

That's a lot of money. It all could have been avoided had the prospective buyer/plaintiff (Van Slyke) requested or attempted mediation of the dispute in the first place. Not to mention that Van Slyke has to pay his own attorney's fees as well, which could have been greatly minimized through early mediation.

And, did I mention how much wasted time was involved to get a final resolution of the case? The events leading to the lawsuit occured in May 2004 and Van Slyke filed the lawsuit in June 2004. Sometime later came the trial court ruling and finally, on January 18, 2007 - almost three years later - the appellate court ruling. But it's not done yet. The appellate court ordered the case back to the trial court to determine the amount of fees Van Slyke owes the defendant seller for the attorney's fees incurred on appeal. All signs point toward one easy and early decision that should be made in real estate disputes: Mediation!

Avoiding Employment Litigation with Mediation Before Termination

I was hired to mediate the termination of a long-term employee from his place of employment. The employer had previously been sued by a former employee and wanted to avoid a repeat performance. But the employer was not sure how to work out an agreeable solution that was fair for both sides and accounted for some errors that had been made by both parties.

The employer found my website and discovered that I have represented both employers and employees in litigation and counseling and figured this would help both the employee and employer feel comfortable working with me as a mediator. After speaking with both sides, it was agreed that mediation was a good idea to get creative solutions without breaking the bank on attorneys' fees. My job in mediation was to understand what a "fair" result actually meant to both parties and see what could be done to achieve it.

"Fair" for the employer meant security in knowing it would not face another lawsuit or any other repercussions if this employee was unhappy and spoke negatively about the company. "Fair" also meant not paying out a massive severance pay the employer could not afford. But the employer recognized the great asset the employee had been for many years and wished to find ways to acknowledge that fact which would be meaningful to the employee and still feasible for the employer.

"Fair" for the employee meant not only a reasonable severance pay or other bonus pay, but also not having a record of being "fired" and also having a strong letter of reference from the employer. These last two items were very important to the employee who understood, through mediation, the reasons for the employer's decision and was not bitter at being let go, but wished to do it with dignity.

It turned out that being able to leave his long-term position on good terms with his employer, and being taken out to lunch with the other employees to celebrate his "retirement" from the company (and having his wife invited to lunch too) did more to ease any feelings of resentment he might have had than the employer could have realized.

Through open communication we were able to delve in and discover the real needs and interests of the parties and then work to figure out ways to meet those needs. This was a happy ending for everyone.

Five Things You Don't Know About Me

It looks like I've been "tagged" by fellow mediation blogger Vickie Pynchon to disclose something personal about myself in her "Five Things You Don't Know About Me" blog tag posting.

First, I am the middle child (and only daughter) between two brothers evenly spaced at 3 years younger and 3 years older than I am. There's something about this dynamic about being the middle child and wanting to foster harmonious relations; that may be one explanation for my gravitation toward mediation.

Second, I was the opinion editor of the newspaper produced by the community college I attended (Cypress College) prior to matriculating to UC Irvine. I had a column titled "Paula Logic" which was a forum for me to write about politics, life and whatever else was interesting to me, kind of like this blog!

Third, I was a private investigator for several years before and during law school. The field of law was a creative way for me to combine writing with the work I enjoyed as an investigator. Luckily for me, private investigation work paid better than many of my law school classmates' bartending jobs or free clerking positions.

Fourth, I'm not a workaholic by any means, but if I won the lottery, I would still work because I love what I do. But I would probably only work a couple days a week. Also, I would have to play the lottery for this scenario to work - but I don't.

Fifth, one of the great things about living in a city like San Francisco is that we do not rely on our cars as much as we would if we lived in the suburbs. Although I have a car and love driving, I love the freedom of not being tied to my car. So I walk and take BART, and even MUNI trains on occasion and, yes, I even wear tennis shoes with my suits and break out my high heels once I'm where I need to be.

I will update this posting when I think of some other bloggers to tag now!

"What Types of Disputes Can Be Mediated?"

Answer: Any problem or disagreement you have that involves at least one other person or entity generally can be mediated to find a solution. Even if there is no "legal" remedy, there is often a remedy that can be found through mediation.

All of the following types of issues can - and are - resolved through mediation every day: contract disputes, personal injury or wrongful death claims, landlord/tenant disputes, disputes between neighbors, insurance disputes, medical or legal malpractice issues, real estate disputes, employment or labor disputes, divorce issues (financial aspects and custody/visitation issues), and probate disputes.

Mediation is also useful in matters that would not be litigated, but could benefit from the assistance of a neutral mediator. In these situations, the mediator can facilitate difficult discussions that are often necessary in the preparation of estate plans and prenuptial agreements whether because of the significant size of the assets involved or because of contentious relationships surrounding these agreements.

Such facilitative mediations help reduce conflict and tensions, keep the discussions focused on key issues and help everyone involved understand what needs to happen and why. When important discussions such as these are conducted in a meaningful and productive way, more creativity and thought is put into the final product or agreement, which leads to fewer disputes later on when it comes time to interpret and carry out the terms of the estate plan or agreement, if needed.

Mediation of a Construction Contract Dispute

In a construction contract dispute, the homeowner and the contractor who was hired to update the kitchen end up having a disagreement over the terms of the contract when the bill comes in $50,000 over what was promised and the work fell far short of the homeowner's satisfaction.

What were the homeowner's options when a solution could not be reached through direct discussions and tempers were starting to escalate the dispute even more?
The homeowner did not want to hire a lawyer and deal with a breach of contract lawsuit he would have to commit more time and money to, since he was short on both. And $50,000 was too much money for a small claims case. (Filing a small claims case is often a good "quick and dirty" solution when the amount in dispute is under $7,500 because resolution is just 30 days away).

So what did the homeowner do?

The homeowner contacted the Bar Association's Mediation program, got the contractor to agree to the plan since it was in his best interest to have this resolved too. Both paid small administrative fees to be assigned an experienced and qualified mediator whose hourly rates they could afford; A four hour mediation meant each would only pay for two hours of the mediator's time (although Bar Associations often provide the initial one or two hour of mediator time free).

Mediation was scheduled within two weeks, the mediation took half of one day and both parties were able to express their frustrations and consider a notepad full of solutions. As is often the case, the solutions to this dispute were found in the expressions of frustration from both parties.

The contractor agreed to re-do certain specific items (the ones that caused the homeowner the most frustration) at no additional charge. The homeowner agreed to pay almost the full amount of the contractor's bill.

Will the homeowner hire this contractor again? Probably not. Is the contractor upset at losing this homeowner as a repeat customer? Again, probably not, although the contractor may be more upset at losing a potential source of referrals, which is likely part of the reason for the free repair work.

Both parties were able to walk away with their pride intact, their interests satisfied with the solutions in hand and the relief of having put one big problem to rest without a lawsuit.

[Image from: http://www.reneelevy.com/liens.htm]

New Year - New Problems to Solve

I have spoken with several individuals in the new year who are uncertain whether to jump right into mediation of their disputes or whether to hire an attorney, start the legal process and then get into mediation. There are other variations of this dilemma as well, including whether to hire attorneys to provide counsel during pre-litigation mediation or not.

Just as in mediation, these decisions are not mine. I can help these individuals to make their decisions but I cannot make recommendations or decisions for them.

I believe the more informed a person is before making any decision, the better the decision will be and the better the person will feel after making that decision.

What I can do is provide these undecided individuals with information regarding the legal processes and the mediation process and other options and also provide them with online resources to consult. The information provided varies depending on the specific nature of the dispute, but I am always happy to do it.

This is one way in which I work to empower individuals to make the very best decisions for themselves even at this early stage, and at every subsequent stage during the mediation process.