tag:blogger.com,1999:blog-78480380455713812732024-02-06T22:35:03.810-08:00Time To MediateThis blog is dedicated to your success in the world of mediation.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.comBlogger14125tag:blogger.com,1999:blog-7848038045571381273.post-66324097130928661072010-01-09T23:54:00.000-08:002010-01-10T00:04:07.612-08:00How To Win At Mediation The Bill Walsh Way<a href="http://davidharriswriter.com/img/the_genius_book_cover.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 299px; height: 453px;" src="http://davidharriswriter.com/img/the_genius_book_cover.jpg" border="0" alt="" /></a><br /><br /><strong>Born To Mediate</strong><br /><br />It wasn’t that long ago when the only option for attorneys who reached an impasse in settlement negotiations was to let the jury decide. Fortunately, those days, along with trial by ambush and hide the ball discovery, have become a distant memory for most attorneys. Mediation is now the most common and effective alternative for resolving disputes. Knowing how to win at mediation has become as essential as any trial skill.<br /><br /><strong>Losing To The Virtual Jury</strong><br /><br />In the context of mediation, the actual jury has now been replaced by a virtual jury. More often than not, the mediator (whose stature is enhanced by the fact that he or she is usually old enough to remember what it was like to try cases-or in the case of retired judges, preside over trials) has become the self-appointed predictor of what this imaginary jury will do. Mediators use this power to influence party perceptions and case valuations.<br /><br />For example, if you are representing a plaintiff in a trip and fall case, the mediator may conjure up colorful stories from his days in the courtroom where premise liability cases with much better facts than yours, invariably resulted in defense verdicts. As your client’s vision of sugar plums slowly shrivels into prunes and you feel your resolve start to crumble, the mediator will pile on by alluding to reported jury verdicts showing the statistical likelihood of a defense verdict. <br /><br />While it is always important to consider the mediator’s judgment, it is even more important not to lose sight of the fact that the mediator may not have a clue how your case is actually perceived by the other side. <br /><br /><strong>Move The Ball Down The Field Like Bill Walsh </strong><br /><br />In order to ensure that you don’t leave money on the table if you are representing the plaintiff or conversely overpay if you represent the defendant, you may want to take a page out of the playbook of legendary coach, Bill Walsh. <br /><br />In his 10 seasons as the San Francisco 49er's head coach, Bill Walsh’s record was 102-63-1, a .617 winning percentage. In 1993 he was elected to the Pro Football Hall of Fame. One of the things that made Coach Walsh so successful was his strategy of preparing his first several plays before the game. Walsh would run these scripted plays regardless of field conditions or how the defense was aligned. <br /><br />Applying this technique to mediation, you would carefully consider your settlement range before the mediation, then script a series of descending demands or increasing offers. Your settlement range is the goal line that your “plays” are directed towards. Each move should be justified by a new piece of supporting evidence or argument. Now you are ready to take to the field. <br /><br />This strategy will help keep your emotions in check and guide you methodically to your goal line. You will be less likely to move precipitously or prematurely when the mediator starts channeling the imaginary jury or tests your resolve with “concerns” about your case. Knowing in advance what your plays are, provides a sense of control and minimizes the danger of getting carried away by your own emotions (fear) or the noise generated by the mediator or opposing counsel.<br /><br />After you have executed your scripted plays, the case will have either settled within your range or you will have a clear idea what the other side is willing to pay and why. If there is still a sizable gap, you can resort to more traditional negotiation techniques to close the gap or suspend the mediation process to develop more evidence favorable to your position. If you choose the latter approach, suggest that the mediator stay involved by follow up phone conferencing.<br /><br />There are many things that ensure a successful mediation including a well written brief and timely exchange of information. When combined with this powerful technique, you will dramatically increase your odds of obtaining the best possible settlement for your client.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com1tag:blogger.com,1999:blog-7848038045571381273.post-25185850591922423202010-01-02T16:55:00.000-08:002010-01-02T17:10:36.466-08:00Does Your Mediator Follow The Prime Directive?<a href="http://wetsham.files.wordpress.com/2008/08/startrek-1.gif"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 364px;" src="http://wetsham.files.wordpress.com/2008/08/startrek-1.gif" border="0" alt="" /></a><br /><br />Star Trek watchers may recall that whenever Captain Kirk, Spock, Bones and the anonymous crew member (who invariably ends up getting killed or deciding to live with the alien civilization) beamed down to investigate activity on a new planet, they were required to adhere to the Prime Directive. <br /><br />The Prime Directive, Starfleet’s General Order #1, is the most prominent guiding principle of the Federation. The Prime Directive dictates that there can be no interference with the internal development of pre-warp civilizations. It includes any “purposeful efforts to improve or change in any way the natural course of such a society, even if that change is well-intentioned and kept completely secret.” This includes not intervening even though having done so could have prevented injury or death. <br /><br />The above definition is highly analogous to the proper role of the mediator. It is important to make sure that you choose a mediator that follows the Prime Directive to ensure fairness to all parties. Sometimes, this can be difficult when the mediator sees where the parties have failed to take certain steps that would materially improve their case. At a recent seminar on mediation tactics and pitfalls, one of the attorney participants related that at a recent mediation, the mediator (no doubt well-intentioned) introduced a hitherto unconsidered legal authority in a joint session. Doing so materially altered the “natural course” of the case to the detriment of his client. The mediator’s action violated the Prime Directive and went beyond her role to facilitate communication. <br /><br />The Prime Directive does not preclude the mediator from providing analytical assistance to the parties by questioning assumptions and considering the strengths and weaknesses of their case, otherwise known as “reality testing.” Indeed, such assistance is often critical and one of the most oft cited reasons for selecting a particular mediator. However, a mediator who gives either side advice on how to improve their case by introducing concepts or strategies that they would not otherwise have considered can distort the process. For example, the parties are too far apart for a first round of mediation to settle the case and the mediator suggests that the plaintiff obtain an MRI or the defendant get a a defense medical examination. Such advice may no doubt be well-intentioned but it potentially creates a disadvantage to the other side that but for the mediator’s involvement, would not have occurred. Even “reality testing” can inadvertently skew the result if it is done in a joint session and a “weakness” raised by the mediator had never occurred to the other side.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com1tag:blogger.com,1999:blog-7848038045571381273.post-14383563628051609252009-01-30T18:49:00.000-08:002009-01-30T19:22:39.778-08:00Everything Is A Negotiation<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiNzRINJg4bFP3myGC_H7L4-fmZuUb2whw61KzUrrMjySYDteAxCrhlFQaM7qJmFmRskSdys5F4jkyZG4ypmJdkP4ah3-osvqlhclHViVqbrIiny7BhT-KEUHrelLy_TL3ZeqLokOtAMGE6/s1600-h/800px-Haggling_for_sheep3.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 400px; height: 300px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiNzRINJg4bFP3myGC_H7L4-fmZuUb2whw61KzUrrMjySYDteAxCrhlFQaM7qJmFmRskSdys5F4jkyZG4ypmJdkP4ah3-osvqlhclHViVqbrIiny7BhT-KEUHrelLy_TL3ZeqLokOtAMGE6/s400/800px-Haggling_for_sheep3.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5297293063752756626" /></a><br /><br />"Are we negotiating?" "Always," replies Al Pacino playing the devil in the Devil’s Advocate.<br /> <br />In fact, it is more accurate to say that everything is a potential negotiation. Yet, in many situations, the effort to negotiate is not made. Fear, ignorance or complacency seem to be the usual suspects as to why we would not seek advantage.<br /> <br />As Shakespeare said, “Our doubts are traitors and make us lose the good we oft might win by fearing to attempt.” –Measure For Measure, Act 1.<br /> <br />In a recent New York Times article<a href="http://www.nytimes.com/2009/01/29/garden/29haggling.html?ref=garden">,"How Low Will They Go,"</a> the writer decides to test her long held beliefs, and sets off to negotiate the price of furniture at some high end outlets in NYC. While the writer meets with mixed success, she quickly learns that significant discounts can be had on items that she had reflexively assumed were not negotiable.<br /> <br />The writer expresses some discomfort at first even raising the subject of a price discount but once she learns some techniques, seems to enjoy the process. Not surprisingly, many of the salespeople actually were expecting some haggling.<br /> <br />The article is good as far as it goes but it barely touches on the methods that can be used to successfully negotiate just about anything. As a mediator and litigator conversant with the negotiation process, I have negotiated everything from furniture to hospital bills (a recent $18,000 bill to cast my 8 year old’s broken arm comes to mind) to the occasional night out with the boys.<br /> <br />When negotiating material objects, two techniques that are easy to master are the “flinch” and “nibbling.”<br /> <br />The flinch, which is one of my all time favorites, requires only that you respond to the offer, whether it be the price of a car, the insurance company’s settlement offer or the plaintiff’s demand, with a look of incredulity, then slowly repeat the offer as a question with a tone of utter disbelief. “$50,000?” Then, say nothing and wait for the other side to start making compromising gestures. <br /> <br />Nibbling is where the buyer asks for ostensibly small benefits after the price has been struck such as free delivery, no sales tax etc. The individual concessions are small but when added up can be substantial.<br /> <br />To learn about these and a plethora of additional negotiation and counter-negotiation techniques, one of the best sources I have found is <a href="http://www.rdawson.com/audio.html">"The Secrets of Power Negotiating"</a>, a series of audio recordings by Roger Dawsen that have withstood the test of time and will put you in the driver’s seat the next time you need to negotiate anything from the kid’s allowance to your next multi-million dollar settlement.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0tag:blogger.com,1999:blog-7848038045571381273.post-64577965546319094692009-01-04T19:14:00.000-08:002009-01-04T19:22:54.470-08:00Medicare Going Nuclear<a href="http://thumbs.dreamstime.com/thumb_12/1116730915bXyOSe.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 300px; height: 300px;" src="http://thumbs.dreamstime.com/thumb_12/1116730915bXyOSe.jpg" border="0" alt="" /></a><br /><br />A new law is going into effect July 1, 2009 which will dramatically alter the equation for Medicare liens. I will have more to say on this in future posts but suffice to say, this will be a game changer.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com1tag:blogger.com,1999:blog-7848038045571381273.post-47214465559733947242008-12-07T17:07:00.000-08:002008-12-07T17:45:08.382-08:00When the “Enemy” Displays Empathy<a href="http://tracyyoung.tv/wordpress/wp-images/angry_person.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 330px; height: 480px;" src="http://tracyyoung.tv/wordpress/wp-images/angry_person.jpg" border="0" alt="" /></a><br />In a negotiation context parties, attorneys and claim representatives naturally identify with their positions which can create an us vs. them mentality. It is sometimes hard for plaintiffs to see the decision maker on the other side as a person just trying to do their job in a conscientious manner. Likewise, sometimes the plaintiff and the harm they experienced are marginalized at the expense of trying to pick apart whatever inconsistencies may exist in their case to improve one’s bargaining position and not wanting to show undue sympathy which might be perceived as weakness in the negotiating context. <br /><br />The mediator can help to put all this into context for a plaintiff who can’t understand why they are being “put on trial” when the other side caused the harm by explaining that it is not about them personally but is part of a negotiation process. <br /><br />Given the need to maintain one’s game face during a negotiation, it is rare to see genuine sympathy being expressed by the other side.<br /><br />When such displays do occur, they are memorable. I recently had an opportunity to observe such a display of real empathy from a claim representative who approached the plaintiff in a personal injury matter after the case had settled and let the plaintiff know that she was “in my thoughts.” It was moving to see the claim representative step out of her role and humanize the process by sharing her feelings of empathy.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com2tag:blogger.com,1999:blog-7848038045571381273.post-23775962699608167402008-12-06T17:07:00.000-08:002008-12-07T17:43:04.185-08:00Familiar Mediator Types<a href="http://www.fotosearch.com/bthumb/PHD/PHD515/200024683-001.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 170px; height: 170px;" src="http://www.fotosearch.com/bthumb/PHD/PHD515/200024683-001.jpg" border="0" alt="" /></a><br />In the spirit of Matt Groening's Life In Hell series, I offer a selection of mediator types that you may have or will some day encounter. <br /><br />The Pleaser<br /><br />The Closer<br /><br />The Storyteller<br /><br />The Yeller<br /><br />The Wizard<br /><br />God Almighty<br /><br />The Comedian<br /><br />The Prophet<br /><br />The Juggler<br /><br />The "Facilitator"<br /><br />The Potted Plant<br /><br />Feel free to add your own favorites or share your experiences with those we have listed.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0tag:blogger.com,1999:blog-7848038045571381273.post-6379155944776783172008-11-30T13:56:00.001-08:002008-12-04T07:35:04.215-08:00When To Show Your Smoking Gun<a href="http://blogs.zdnet.com/microsoft/images/smoking-gun.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 425px; height: 500px;" src="http://blogs.zdnet.com/microsoft/images/smoking-gun.jpg" border="0" alt="" /></a><br /><br />As a mediator, I suggest in my opening remarks that if and when it becomes appropriate to do so, the parties be open to disclosing evidence that will adversely affect the other side’s case. Unfortunately, I have seen cases settle at mediation where information was held back that could have been used by the mediator to help the other side appreciate a significant risk in not settling. As a result, the party that chose not to use the smoking gun failed to obtain the best settlement for their client. <br /><br /> Attorneys who have tried a number of cases are especially wary of giving up their best impeachment evidence if there is any chance that the case will not settle. The fear that somehow the other side will be able to diffuse the effect of this adverse evidence at trial has some justification but in actuality, this almost never happens.<br /><br />As long as the parties are within striking distance of a settlement, there is no reason to leave smoking guns holstered. By that point, both sides have usually invested considerable time and psychic capital to get the case into a settlement posture. Opposing counsel is unlikely to pull out when confronted with a piece of evidence that further compromises their case. Often smoking gun evidence goes to the other side’s credibility and this can quickly deflate opposing counsel’s desire to continue fighting, especially if they were misled by their own client. <br /><br />The best time to reveal smoking gun evidence is after as much as possible has been accomplished with the known facts and arguments. Where trust has been established with the mediator, freely discuss how best to deliver the bad news to the other side. The mediator can help package information for maximum effect.<br /> <br />If the party with the smoking gun can’t bring themselves to disclose the information, consider that often the same effect can be achieved simply by having the mediator inform the other side that she has seen evidence that will likely pose a danger to their case. If the other side knows and trusts the mediator, this will usually suffice to quickly bring expectations into line. Strategically, letting the other side pick the mediator can often work to your advantage for this reason. <br /><br />Finally, the mediator can test the waters first by posing a hypothetical to the other side such as “If the defendant had information that contradicted x, how would that affect the evaluation of your case?” If opposing counsel acknowledges that x would damage their case, some selective or partial disclosure at that point would be appropriate. In some instances, it may be necessary to agree to make the settlement contingent on letting opposing counsel see the harmful evidence.<br /><br />Carefully considering when and how to use your smoking gun evidence, will result in smarter negotiations and more favorable outcomes.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com2tag:blogger.com,1999:blog-7848038045571381273.post-8695274243065392082008-11-26T19:14:00.000-08:002008-11-26T21:12:53.889-08:00Knock, Knock, Knocking on Hanif's Door<a href="http://farm2.static.flickr.com/1201/1047693314_ea23172622.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 375px;" src="http://farm2.static.flickr.com/1201/1047693314_ea23172622.jpg" border="0" alt="" /></a><br /><br />A recent appellate court decision, Olsen v. Reid,164 Cal. App. 4th 200(2008) calls into question the viability of the post verdict hearing and raises anew the issue of whether the collateral source rule mandates that the full amount of the medical bills should be recoverable whether reduced by contract or not. <br /><br />In Olsen, the plaintiff obtained a verdict which included the full amount of medical expenses. Defendant moved for a post verdict reduction and submitted some billing records which contained ambiguous references to a write off by the health care provider. The trial court reduced the verdict.<br /><br />The Olsen court held that there was an insufficient basis to allow for a post verdict adjustment because of the paucity of supporting evidence. <br /><br />The court then used the case as a sounding board to discuss the conflict between Hanif/Nishihama and the collateral source rule.<br /><br />In the first of two concurring opinions, Justice Eileen Moore, “raised the alarm” that the Hanif/Nishihama rationales for limiting the amount of recoverable medical expenses had “buried” the collateral source rule without “the dignity of any services or parting words.” After discussing the history and rationale of the collateral source rule, Justice Moore declined to apply the post verdict schemes articulated in Greer in a private insurer context, absent “statutory authority or endorsement from the Supreme Court.” <br /><br />Justice Richard Flybel picked up the gauntlet in his concurrence, and argued that Hanif/Nishihama reductions were in fact consistent with the collateral source rule. <br /><br />He then laid out a prescription for meeting the hefty evidentiary burden in a post verdict hearing.<br /><br />A detailed and thoughtful article on both sides of the issue can be found in the current issue of California Litigation, published by the State Bar’s litigation section. This is a must read discussion for attorneys, insurance representatives and health care professionals. Scott Sumner, a partner at Hinton,Alfert and Sumner, who has written and argued extensively on this subject, wrote the brief in favor of application of the collateral source rule.<br /><br />Happy Thankgiving.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0tag:blogger.com,1999:blog-7848038045571381273.post-90874370701030536942008-11-25T11:00:00.000-08:002008-11-25T11:55:20.954-08:00How To Prepare For Mediation...Take A Nap<a href="http://highbridnation.com/wordpress/wp-content/uploads/2008/03/napping.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 400px; height: 400px;" src="http://highbridnation.com/wordpress/wp-content/uploads/2008/03/napping.jpg" border="0" alt="" /></a><br /><br />I have long known from personal experience that a brief mid day nap can substantially boost mental alertness and creative thinking. I like to keep it short, no more than 20 minutes. Several cups of coffee by contrast do little more than prevent withdrawal headaches.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com1tag:blogger.com,1999:blog-7848038045571381273.post-10848813167377231332008-11-23T16:04:00.001-08:002008-11-23T16:16:51.600-08:00“It’s Not about the Money”<a href="http://www.homesettlementcentre.com/images/no_money.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 126px; height: 126px;" src="http://www.homesettlementcentre.com/images/no_money.jpg" border="0" alt="" /></a><br />I once witnessed a plaintiff’s attorney get up in closing argument following a personal injury trial arising out of a slip and fall and tell the jury that from his client’s point of view, the case was “not about the money.” The defense attorney seized upon this assertion and used it to deride the plaintiff who was asking for a considerable amount of money on a relatively modest soft tissue case. <br /><br />By the time a case gets in front of a jury, money has usually become the predominant interest, but in the context of mediation, the litigant’s real interest may not always have a dollar sign in front of it. <br /><br />The plaintiff in the aforementioned slip and fall may have made a decision to contact a lawyer because the store manager appeared dismissive or unconcerned. Numerous times as a mediator, I will hear a party summon up anger or some hurt feeling associated with the conduct of the other party that is essentially irrelevant to the merits of the case but either led to a decision to sue or impeded their willingness to settle.<br /><br />Common examples in mediated matters include curtness or lack of concern by the driver in a motor vehicle accident; a dismissive attitude on the part of a claim representative; perceived unfairness when trying to settle the property damage part of a claim; a defendant’s failure to return phone calls. <br /><br />An early experience of feeling disrespected, not being taken seriously or being treated unfairly may be why a litigant is resisting what otherwise seems like a reasonable offer. If these underlying motivations/interests exist, bringing them to light and acknowledging them may allow the mediation process to move forward.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com1tag:blogger.com,1999:blog-7848038045571381273.post-89481129337441308942008-11-09T09:15:00.000-08:002008-11-25T13:48:06.776-08:00What's Behind Door Number 2?<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhunpM3v6PX-_P8Ea9FDGKcugI_Zidi1ajRB0tVeQy07uEimJJR-5nVukxFc9iY9AxeLjPCmTAc1DzXnV51YkTa3gVLLNpCH_NmOYHqVopu0FzT_FQnRydbhlW5-1b_Yyqc2APhHK9HEvef/s1600-h/images.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 70px; height: 146px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhunpM3v6PX-_P8Ea9FDGKcugI_Zidi1ajRB0tVeQy07uEimJJR-5nVukxFc9iY9AxeLjPCmTAc1DzXnV51YkTa3gVLLNpCH_NmOYHqVopu0FzT_FQnRydbhlW5-1b_Yyqc2APhHK9HEvef/s320/images.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5267991898110031522" /></a><br /><br />A new study provides empirical support for the idea that parties are often wrong when they reject the last best settlement offer and let a judge or jury determine their fate.<br /><br />According to the study which looked at 2,054 cases between 2002 to 2005, plaintiffs were wrong 61% of the time when they opted to go to trial. <br /><br />Defendants were wrong less often, 24 percent of the time, but the financial consequence was greater; $1.1 million when the defendant guessed wrong vs. only $43,000 for plaintiffs. <br /><br />The study points out that part of the problem is the difficulty that attorneys have in presenting bad news to their clients. Law schools do not teach risk analysis or how to manage client expectations. <br /><br />Sometimes, this becomes a primary task for the mediator who can prepare a party for the inevitable attack on their theory of the case and communicate adverse facts in a non threatening manner. <br /><br />Sometimes this occurs in a pre joint session caucus where the mediator can explain that the other side may raise difficult questions about aspects of their case. It may even feel like they are being attacked personally. While hearing this may be unpleasant, their choice is to hear this information now or wait until they are in trial where they risk getting blindsided after committing significantly more time and money to the process. <br /><br />With preparation, most parties can constructively process even the most damaging type of evidence. Once they realize that their interests are served by knowing now what could hurt their case at trial, they are more likely to listen objectively to the other side’s position. I sometimes suggest that it helps to imagine that they are a juror on their own case. <br /><br />A client that will look at the warts on their case will have a more realistic view of the risks going forward. By facilitating this analysis, the mediator takes pressure off the attorney who may have felt the need to sugar coat bad facts to avoid a shoot a messenger reaction. <br /><br />Knowing that those who choose “door number 2” are more likely to find a goat, than a boat, underscores the importance of this aspect of the mediation process.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0tag:blogger.com,1999:blog-7848038045571381273.post-32052737017124864062008-08-09T10:31:00.000-07:002008-11-12T20:37:45.784-08:00Supreme Court Confirms That What Happens In Vegas Stays In Vegas<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhBiYcHfCBOyT6lrP2K0TQcyOVO8XUPI3RhyphenhyphenFsBNfay-enczE86IfTY5-8TSCZBb4NusbYmGnyarRAFvsEW1RbGYfX3OMY-p5-pgv0g1hnC6lRuNay-C7bVTGJhL4bQNBN7KRPXmqC0Rp8C/s1600-h/LasVegasSign.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 320px; height: 255px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhBiYcHfCBOyT6lrP2K0TQcyOVO8XUPI3RhyphenhyphenFsBNfay-enczE86IfTY5-8TSCZBb4NusbYmGnyarRAFvsEW1RbGYfX3OMY-p5-pgv0g1hnC6lRuNay-C7bVTGJhL4bQNBN7KRPXmqC0Rp8C/s320/LasVegasSign.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5267996250135609698" /></a><br /><br />On July 21, 2008, the California Supreme Court unanimously held that the Evidence Code statutes concerning mediation confidentiality do not permit judicially created exceptions.<br /><br />In Simmons v. Ghaderi, S147848, the court reversed the holding of the Second District Court of appeal that defendant Ghaderi was estopped from invoking mediation confidentiality. The Supreme Court also stated that confidentiality cannot be impliedly waived. <br /><br />In the underlying case, Dr. Ghaderi attended mediation in a medical malpractice action. Prior to mediation, the doctor gave her carrier written consent to settle for up to $125,000. During the mediation, the carrier offered $125,000 which was accepted and a settlement agreement was prepared by the mediator. At the last minute, instead of signing, Dr. Ghaderi walked out.<br />At the trial court’s suggestion, the plaintiff amended the complaint to add a breach of oral agreement action. The breach of contract action was then bifurcated and tried first. During discovery, both sides submitted evidence of what happened during the mediation. Dr. Ghaderi’s counsel only asserted mediation confidentiality for the first time at trial.<br /><br />The trial judge allowed evidence of what occurred during the mediation, including a declaration from the mediator, and found that an oral agreement had been created requiring Dr. Ghaderi to pay $125,000.<br /><br />On appeal, the District Court upheld the trial court and ruled 2-1 that Dr. Ghaderi was estopped from asserting confidentiality.<br /><br />Even on these seemingly bad facts for the doctor, the Supreme Court reversed the District Court and in so doing affirmed a line of cases starting with Foxgate Homeowners' Ass'n v. Bramalea California, Inc. (2001) 26 Cal.4th 1, that any exception to the mediation confidential statutes must be created by the Legislature.<br />Apparently, Dr. Ghaderi’s malpractice action will now proceed. It will be interesting to see how that plays out.Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0tag:blogger.com,1999:blog-7848038045571381273.post-1353883820276878222008-07-23T19:02:00.000-07:002008-07-23T20:29:18.390-07:00The Importance of ListeningIn mediation, there are always at least two stories. The clients' stories are usually told by the attorneys trained to portray an idealized version to enhance their positions. Often, the client feels that something essential or the source of internal pain has been left out or not acknowedged. Perhaps lacking relevance to the issues the attorney wants to focus on, it gets ignored.<br /><br />A good mediator senses this and draws out the client until the story, pouring from the gut, the spleen, the heart or the head has been said.<br /><br />By drawing out the hidden story, the client feels they have been heard and is free to move into a realm of clarity when negotiating.<br /><br />I recently read an article about Obama's tenure as the Editor of the Harvard Law Review where he developed a leadership style based more on furthering consensus than on imposing his own ideas.<br /><br />"Surrounded by students who enjoyed the sound of their own voices, Mr. Obama cast himself as an eager listener, sometimes giving warring classmates the impression that he agreed with all of them at once."<br /><br />Another of Mr. Obama’s techniques relied on his seemingly limitless appetite for hearing the opinions of others, no matter how redundant or extreme. That could lead to endless debates — a mouse infestation at the review office provoked a long exchange about rodent rights — as well as some uncertainty about what Mr. Obama himself thought about the issue at hand.<br /><br />The ability to listen until everyone felt they had been heard (and agreed with) is as powerful a tool for a mediator as it is for an aspiring presidential candidate.<br /><br /><a href="http://www.iht.com/articles/2008/07/23/opinion/eddowd.php">http://www.iht.com/articles/2008/07/23/opinion/eddowd.php</a>Bradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0tag:blogger.com,1999:blog-7848038045571381273.post-69259813963717737052007-11-09T17:38:00.000-08:002007-11-09T18:05:44.067-08:00The Grass Is Growing. Please Standby.<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg6C5Lt_M34_TUKtAJv1Iu4BAiPHw1mB5DM-IoGYd_q8Tt0Igj-32skCr9-lt5Qydb91uR5cB_7mRHrnQJCbv507_HVCw07jig0jlhnqkcG2Q4GuiIPCX_t9tMQp8hwqXgLPI2MtG1fquTk/s1600-h/IMG_1508.jpg"><img id="BLOGGER_PHOTO_ID_5131026532264239906" style="DISPLAY: block; MARGIN: 0px auto 10px; CURSOR: hand; TEXT-ALIGN: center" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg6C5Lt_M34_TUKtAJv1Iu4BAiPHw1mB5DM-IoGYd_q8Tt0Igj-32skCr9-lt5Qydb91uR5cB_7mRHrnQJCbv507_HVCw07jig0jlhnqkcG2Q4GuiIPCX_t9tMQp8hwqXgLPI2MtG1fquTk/s320/IMG_1508.jpg" border="0" /></a><br />The other day, I decided to reseed some bare spots on the lawn. This was after I was convinced that the mole that had taken up subsurface residence was truly out of business. The mole had successfully evaded all of my efforts to at first humanely remove it and when my lawn began to resemble a moonscape, to terminate it with extreme prejudice. I'm pretty sure that none of my increasingly desperate and Caddyshack inspired techniques worked and the mole simply decided the grubs were more plentiful elsewhere and packed its bags.<br /><br />I spent the good part of a hot Sunday afternoon, breaking up dirt, mixing in planting soil and fertilizer, spreading grass seed and watering.<br /><br />Monday morning I was off to work. When the weary road warrior returned at the end of a long day of mediation, I noticed a handwritten sign on green paper taped to the side of the mailbox post. It read "The Grass Is Growing. Please Standby." I smiled broadly recognizing the super sized letters of my 7 year old son. Another unbearably sweet gift from my child's creative mind.<br /><br />It is therefore fitting as I launch this blog into the blogsmos, to ask for your indulgence and patience as I work to make this the most informative, entertaining and thought provoking location for that community of people who occasionally or frequently require the services of a mediator and wish to acquire the knowledge and tools that will enhance their meditation experience.<br /><br />BradleyBradley Bostickhttp://www.blogger.com/profile/05677888574006180708noreply@blogger.com0