Guess Who’s Coming to Mediation? The Problem of Unwanted Attendees in Mediation

The rules governing attendance at mediation are not widely known, and there are some commonly held misunderstandings that require debunking. There are few things more disruptive than disputes over participation and authority. In the worst-case scenario, the parties have not communicated in advance, and an unwanted someone unexpectedly appears at the start of mediation to […]

Your Early Holiday Stocking Stuffer: The Silver Dollars I Picked Off Your Floor

I want to offer you a valuable stocking stuffer for next year. For most lawyers billing hourly, the smallest profit generator is the billable unit recorded as one-tenth of an hour – the “point-one.” When you engage in any large task, there is a small amount of lead-up time, and a transition-away time from that […]

Negotiating in the Crosswind of Settlement Desire

The desire to settle during mediation can be mutual, essentially balanced and shared, or highly unbalanced or asymmetric. As a mediator, I want to find out which side more strongly feels the need to settle. I seek to press upon the side least desirous of settling. I try to move a party or their lawyer […]

Mediation is the Food Truck of Dispute Resolution

Research in a variety of jurisdictions reveals that approximately one percent of filed civil cases reach trial, maybe less in some states.[1] Commentators note several likely causes: Loose discovery rules, stricter pleading, heightened summary judgment standards, and motion practice have reduced the “triable” issues. But, of course, the time and expense needed to try a […]

The 30/30 Piece on Mediation Advocacy

When I was a young associate and handling mediations on my own, I really didn’t get it. I mediated too late in the life of the case. I had no relationship with opposing counsel. Mediation advocacy is a lot like sex – for most people you sort of figure it out as you go along. […]

The Road to Uncovering the Hidden Truth in Mediation

If I have reasonably competent lawyers with equally motivated clients with access to the same information (and those are not trivial caveats), isn’t it fair to believe they will be looking at the same playing field albeit from different sides? Isn’t it reasonable to believe the case valuations on both sides should be like two […]

Attendance Rules at Mediation and Other Oddities

Few topics engender debate more than the issue of proper attendance at mediation. Even mediators do not agree on the rules and willingly tolerate a breach or some bad practice. There is a fair amount of problematic behavior largely arising from good intentions but myopic vision. We could start with the language of the written […]