Mediation Practice

My mediation blog, called Mediation's Place, can be found at mediate-la.com

 

FREQUENTLY ASKED QUESTIONS

Q: What training and experience do you have in mediation?

A: I have conducted numerous mediations for more than ten years, starting with what used to be called the JASOP program in state court, then serving as a member of the Central District Bankruptcy Court mediation panel, the Central District Court panel, and the re-organized Los Angeles County Superior Court panel.  I have taken over 100 hours of courses and seminars on mediation, and do a lot of reading and writing on the subject.  I have been a practicing civil trial lawyer for about thirty years, so I have a pretty good sense of what parties are facing if they do not settle.  I am also a member of the Southern California Mediation Association.  My upbringing could even be said to steer me toward mediation, since I am the product of a marriage between a psychiatrist and a social worker.  (I should note, however, that I consider mediation more in the nature of problem-solving than therapy, although mediators sometimes borrow techniques from therapists, and people do sometimes learn and change from engaging in mediation.) 

Q: What are your rates for private mediations?

A: As should be the case with mediation, fees are negotiable.  Mediation sessions can be scheduled for half-day or full-day sessions for a flat rate, or on an hourly rate basis (3 hour minimum).

Q: What is your mediation style?

A: I tend to be more facilitative than evaluative, but I also believe in doing whatever is likely to work in a particular case.  I believe in starting the mediation with a joint session in most cases, and continuing the joint session for as long as it is productive.  Some joint sessions last for hours, and some only work for ten minutes.  I encourage parties to talk to each other directly if possible, and I encourage open communication and the exchange of briefs prior to mediation, but I also understand the need for confidentiality in many cases.  I believe that the attorneys are an essential part of the process, and I encourage the parties to consider carefully their own attorney's (as well as opposing counsel's) evaluations of the case, as the parties' attorneys are obviously more familiar with the applicable facts and law than I am.   

Q:  What types of cases do you handle?

A:  Because of the extremely varied nature of my civil litigation practice over the past nearly thirty years, I have handled most kinds of civil litigation, and have represented both plaintiffs and defendants.  Most of my cases have been commercial disputes, but I have also handled some personal injury cases.  I have substantial familiarity with corporate and partnership disputes; commercial sales and other business transactions; intellectual property including trials of patent, trademark and copyright cases; employment law including most kinds of discrimination cases and wage and hour cases; real estate transactions including landlord-tenant and other property disputes; professional malpractice; and entertainment litigation.  I have had some tangential relationships with family law and probate matters as well.  I do not think it is essential in any event that a mediator have an intimate familiarity with the area of law involved in a particular case, but I do think it can save a lot of time if the mediator knows what the parties and their attorneys are talking about.   

Q:  What are the main differences between arbitration and mediation?

A:  An arbitrator actually decides the case for the parties,  using simplified rules and allowing very little recourse for the losing party.  That means that the arbitrator usually will not reveal his thinking about the case in advance of decision, usually will not try to avoid a hearing, and need not strictly follow the law.  A mediator assists the parties in resolving the case for themselves.  A mediator may freely express his views, will keep information confidential, and can consider any information that the parties think is relevant or important.   

Q:  How does mediation "work"?

A:   Mediation works by allowing parties to listen to the other side’s point of view, sometimes directly and sometimes filtered through the mediator.  Mediation encourages parties to work together constructively to solve their common problem (the dispute). Mediation helps clarify the parties’ choices, so that they can fairly evaluate the costs and benefits of settlement vs. the costs and benefits of pursuing the case to trial. Mediation allows the parties to envision the possibility of putting their conflict behind them. Once these goals are met, mediation generally devolves into a bargaining phase that is not so different from what happens when someone walks into a store to buy a rug or a car. The groundwork must be laid properly for the negotiating phase to work, and the negotiating phase itself cannot be unduly rushed.

Q:  Does the world need another burnt-out litigator moving into the mediation field?

A:  I wonder that myself sometimes, but I object to being characterized as a burnt-out litigator.  I still maintain an active trial practice, and I still enjoy writing a brief, building a case, arguing a motion, or examining a witness, as much as any trial lawyer.  (I am not quite as enthusiastic about discovery motions as I was years ago, however.)  I still think there is an important place for trials in the system, and not all cases should be settled.  But I came to the conclusion a long time ago that most litigation activity is wasteful and unproductive for the parties and most cases should be settled.  I enjoy bringing the parties together to help them work out a better solution than either or both of them can achieve in court, and I am good at it. 

Q:   Why use a lawyer-mediator, as opposed to a retired judge or a non-lawyer mediator?

A: I did a series of posts recently on the pros and cons of using various types of mediators.  To summarize and over-generalize, judge mediators may be the best if the parties need an authority figure to tell them what to do.   Non-lawyers may be best at dealing with psychological and other issues that may be preventing resolution.  And lawyers may be best at relating to the parties' concerns about litigation, and arguing each side's case to the other side.  But whatever the background of the mediator, they generally need to learn additional skills to be the best all-around mediator they can be.  I enjoy doing mediation, not only for the satisfaction of solving problems for people, but also because mediation brings to bear all of the skills I have learned in 30 years of practicing law, plus it continually requires me to keep learning additional skills that are helpful for solving problems in many different contexts.

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