Thinking about the Future of Mediation

I participated in an excellent conference yesterday for the Southern California Mediation Association, "Expanding Horizons, Expanding Opportunities" during which Keynote Speaker, Woody Mosten invited us to consider the state of mediation in 2030. It was an exciting dialogue with ideas ranging from a "Public Mediator" corps, similar to the Public Defender's office to an emergency line, where the first call in case of conflict would be to a local mediator. I was also made to consider that the "Elders" of the future will be those who fought for civil rights in the 60's and may well entertain engaging in more inclusive, collaborative processes than the elders of the last generation. Catching up with lots of colleagues and friends at a spectacular setting out in Malibu made for an invigorating, motivating day. Kudos to SCMA and all of the presenters and planners for an exceptional professional conference. P.S.: If you missed my presentation on Mediation, Ethics, Neutrality and Confidentiality, which I renamed "Dirty Little Secrets", send me an email and I'll fill you in.

New Reasons for Being a Mensch

When we look for the ideal husband for ourselves or our daughters, many have long known that the primary goal is to find a man who is a "mensch". (Pictured are my husband and new son in law--both epitomize the term!). This week, the California Supreme Court reversed an Appellate court decision and upheld confidentiality in mediation, even where it may allow a lawyer to commit malpractice and then shield it from discovery in a subsequent lawsuit. Cassel v. Superior Court, 2011 DJDAR 658 (S178914 filed Jan. 13, 2011). In essence, this creates a heavier burden to "do the right thing", because lawyers and mediators (and their clients) must know that the deals we strike in mediation cannot be later attacked by evidence that the lawyer acted improperly during the proceedings.

This morning's New York Times includes a Book Review of "Practical Wisdom: The Right way to do the Right Thing" by Barry Schwartz and Kenneth Sharpe by Bryan Burrough. Burrough calls the review, "The Spirit of the Mensch" and applies the practical wisdom of the book authors to the practice of law, medicine and business. In today's troubled age, and the weekend celebrating the great peacemaker, Martin Luther King, Jr. as well as the day I am attending a wedding of two young people who strike me as among the most ethical, decent, menschy I know, I can only offer that it is my hope that the Cassel decision will not give a green light for misbehavior, but instead impose a quiet code of "menschleikeit"--encouraging and inspiring lawyers to be their best and highest selves even though they have the cloke of confidentiality at that most critical moment of advising their clients in mediation.

Duty to Clients or Country?

It is about to happen to me. Next week, I anticipate receipt of a subpoena to testify in Federal Court about a mediation over which I presided 18 months ago. I have already received the Court order telling the parties to request my declaration (which I refused to do.) Here's the deal: U.S. District Court civil rights action. No offers made and the case did not settle before me. 18 months later, the case went to trial and the Plaintiff got a "modest" verdict. The parties are now fighting about attorneys fees. The court seems to be persuaded by the Defense's position that the case could have been settled for the amount of the verdict at the mediation. (But of course, it wasn't!) I discarded my notes a year ago, but have orally communicated with both lawyers that my recollection is that no offer was made. Certainly, the case didn't settle--so what difference does it make? It's a perilous position for the court or the attorney's to take: if you fail to accept a low-ball offer, you may not be able to recover your fees if you do better than that at trial unless it's huge. While up until now I considered the attorneys and their clients to be "my clients", I intend to refuse to testify under the confidentiality protections. I guess I feel a little differently about my "duty to country" in the face of a Subpoena to testify to a Federal Judge about matters I consider to be strictly confidential. I'm left feeling angry that the Court may determine this in ways that contravene the policies favoring mediation through confidential communication. I'm lefting feeling angry that I will have to go through the expense of refusing to comply with a Federal subpoena in order to safeguard this process.

Publicity and the Limits of Mediation

I had two interesting cases this week that hit me in the forehead with an "Aha" about the limits of mediation. The first was an employment case in which the employee had somehow become the recipient of a copy of the evaluation letter of the employer's attorney. When confronted with this apparent impropriety, she immediately returned the letter, but of course, could not "un-ring" that bell. In the second, the facts had already been highly publicized and the Plaintiff was not bringing the action for the award of damages, but rather the satisfaction of teaching a lesson to the errant defendants on how not to run their company. It occured to me only later that in that case a mediation was bound to be unsatisfying, because I couldn't offer the kind of publicity that the case demanded. To the contrary, because I am bound to strict confidentiality, I cannot offer the satisfaction that a trial can in instances like these.

In this mornings New York Times, there was an interesting article about a blogger in New York--who relishes the opportunity to privately "publicize" facts and impressions via her blog. I was struck by the contrast between my ability to "publicize" and my hard-earned lesson that the blogosphere cannot expect to be kept confidential. Thus, you will get no further disclosure from me on the case I failed to settle this week until the media properly reports it. Some cases need to go through that process in order to be fully "settled". Cases that are mediated are subject to strict confidentiality. Cases that need the traditional media to ultimately satisfy the litigants, will not likely be settled through mediation. That's the limit of mediation: and the promise of this mediator. Maybe I should have gone into journalism as a second career after all...

California Court of Appeals Affirms Mediation Confidentiality

The Court of Appeals (Second Circuit) issued it's opinion on the Wimsatt v. Kausch writ of mandate and upheld the mediation confidentiality statutes under California Evidence Code Sec. 1119. This was a proud moment for me, because I supported an amicus curiae brief (as President of the Southern California Mediation Association) and was present for the oral argument. In brief, the Plaintiff's were alleging that their own lawyer had committed malpractice by telling the defense counsel in an underlying airplane crash case that the case that he told his own clients was worth $3.5 million had a value closer to $1.5 million. The case was settled at a second mediation for about $1 million. Now, the Plaintiff's wanted to compel the production of the defense counsel's mediation brief and some e-mail communications between the two lawyers that took place the day before the second session of the mediation. The trial court denied the motion for protective order, out of concern that the protection requested might very well shield the plaintiff's former lawyer from claims for perjury as well as breach of fiduciary duty. The Court of Appeal disagreed. They really understood that the policy favoring settlement through frank conversation in a mediation trumped the possible abuses offered to counsel where evidence was prepared for, or in the course of a mediation. The Court did note that this may be unwise or impracticable, leaving the door open for the Supreme Court to act more critically in the case now before them in Simmons v. Ghaderi. Tough decisions, but certainly nice to read in black and white that the Court of Appeals honors the legislative scheme, even against their most solid judgment, to foster mediation as an alternative dispute resolution mechanism that is meaningful and appreciated.