Posts Tagged ‘ADR’

Court closes ADR ProgramI approached SCMA with the idea of doing a Town Hall in 2003 when the mediation community was divided like the red sea over the Rojas v. Superior Court Case.  That case pitted the confidentiality of the mediation process (and the evidence of mold discovered during a mediation, and its eventual remediation) against the needs of the families who had mold spores in their lungs and no way to prove liability, short of breaking the confidentiality of the underlying mediation.  That year, SCMA and CDRC, the two largest mediation groups in California wrote opposing amicus briefs to the State Supreme Court.  As a commercial mediator, I could see both sides of the issue having merit and thought that the best thing for the mediation community to do was to practice what they preach and come together to have a facilitated dialogue about the issue of the extent to which mediation confidentiality should extend.  After leading two years of public hearings on the state Senate Bill regarding mediator credentialing during the mid-90’s, I was very comfortable leading this kind of discussion and thought it would be good for everyone.  Since that time, SCMA has hosted a Town Hall most every summer.

This year, the reported closing of the Los Angeles Superior Court’s ADR program is a huge issue in the legal and ADR world, so a Town Hall style dialogue among mediators and advocates alike is really important.  The LASC mediation program was the largest in the world, and by administering some 25,000 mediations per year, was the envy of most other legal communities.  One of the largest benefits that the program provided, in addition to the obvious docket clearing benefit of a 50% resolution rate, was that it took the pressure off of counsel to risk appearing weak if they suggested mediation to opposing counsel by having the court order cases into the program so that counsel could save face.  One can only wonder how many of the cases that would actually benefit from a good private mediation will have that opportunity, as trial counsel simultaneously need to be zealous advocates for their clients in an adversarial proceeding.  I believe that proposing a mediation – an attempt to settle – is one of the hardest things to do for a trial lawyer. And the more their style leans toward intimidating, the harder it is for them to be congenial or appear open to settlement.

The reason that the local mediation community is divided over this is that at different stages in a mediator’s career, the program can be really helpful, almost a saving grace, or it can be the evil, undermining effect that keeps them from making a living.  You see, the LASC mediation program operated with a collection of some 2,000 trained mediators willing to mediate cases under $50,000 for the court on a volunteer basis for the first three hours.  The problem was that the court never respected the $50,000 cut-off intended by the original deal, which became SB 401, and eventually CCP 1775. As a result, the court deemed it fair game that ALL general civil cases were eligible for “free” mediation (for the first two hours of mediation time in every case, which quickly morphed into 3 hours by the late 1990’s).  This meant that for beginning mediators who were fresh out of training, the court was a great place to go and volunteer and get experience mediating with represented parties.  For intermediate level mediators, it was a great opportunity, and still one worth volunteering for, to raise their number of cases mediated and begin to develop relationships with trial lawyers on both sides of the aisle, as well as institutional parties, like insurance companies and corporate counsel.  But for more advanced mediators, looking to build a practice and pay the mortgage and feed their families, the court program soon became unfair competition, building on the backs of volunteer mediators, and by sending cases over $50,000 into this free program, potentially taking cases that would otherwise go to the private sector into the court’s jurisdiction by offering them free mediation. Today’s Tea Party should have had a fit over this.

As we look at it today, the possibility that this program appears to be going away on June 30, the only certainties we have is that the legal and ADR communities likely won’t have the court’s help in getting parties to the mediation table, and the likelihood of finding volunteer mediators for litigated cases will be little or none.  What we won’t know until this evening at the Town Hall being hosted by the Southern California Mediation Association is how the mediators and the bar will react to these changes.  Undoubtedly, some mediators will applaud them and say it’s about time, where others will mourn them and say that they feel like the mediators who are “in” practice already will have an even greater advantage over those trying to break into the profession.

In the end, I look forward to moderating a civil and productive dialogue will help generate creative ideas for continuing to promote mediation in litigated matters, and that as a community of peacemakers, we will find a way to serve those cases that might otherwise go un-served.  As a room full of mediators, I am certain we will find a way.

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sopranosIn Hawaii, a Molokai couple won a $3.9 million verdict against their Homeowners’ Association (HOA) and individual defendants when the Maui jury found that they had been subjected to bullying, threats, harassment and intimidation from their own HOA Board members and others in the complex.  Jim and Nancy Bevill were subjected to what their lawyer, Terry Revere, called a “campaign of intimidation” that spanned over 6 years and went as far as killing pets, vandalizing cars, death threats and constant intimidation at the Ke Nani Kai Condominiums in Maunaloa.  Revere compared the Bevills’ experience to the equivalent of a John Ford western, where an isolated town is run by a villain and his collection of thugs.  More details are here: http://aiminst.com/maui.

A nightmare, to be sure, the case lasted for 4 years – the trial alone spanning 8 weeks – and included an estimated $1.5 million in combined attorneys’ fees, with claims ranging from negligence to federal Racketeer Influenced and Corrupt Organization (RICO) Act violations.  The Bevills’ complaint says that the board members treated the complex like their own “personal fiefdom”, using the resident manager and handyman as the “thugs” to enforce their rule, with the latter having a criminal record and claiming ties to organized crime.

The Bevills, who relocated to Hawaii from California in 2004, were awarded damages including $500,000 in general damages and over $3 million in punitive damages against the HOA Board and Association (generally not covered by insurance), as well as by three individual board members, the former resident manager, and the handyman.

It seems that the trouble all began when the Bevills brought in an independent handyman to complete renovations to their unit, over the objections and pressure of board members, who seemed to trade protection with the handyman. When the Board’s intimidation was unsuccessful, the Bevills soon found themselves at odds with the board, labeled as “troublemakers” and the target of escalated harassment, which included the handyman making lude gestures with his genitalia toward Mrs. Bevill when she was home alone.

Former 2nd Circuit Judge Joel August, who heard some of the case’s early portions, said that the outcome should serve as a strong example of why condo associations should resolve their disputes early and avoid protracted legal action, when possible.  Apparently, Bevill made an offer to settle prior to trial for less than 10% of the eventual verdict, but the offer was rebuffed by the defense.  “This case,” said August, “if nothing else, should be the poster child for the idea that alternative dispute resolution is the way to go.”  He said that resolving this dispute through mediation or even arbitration would have been a “much smarter” choice.

California law has Civil Code Section 919 requiring homeowner certain disputes in associations to be mediated prior to filing any kind of administrative or legal action.  Perhaps if Hawaii had such a law, this situation could have been resolved much earlier and ended much better.

While mediation doesn’t always resolve all of the conflict between people, it does offer those in conflict the opportunity to sit down with a neutral person to facilitate the dialogue and keep it positive and results oriented. For more on mediation, please check out Stories Mediators Tell [http://aiminst.com/stories].

Looking at the Ke Nani Kai HOA conflict, there was an opportunity for the Bevills to request mediation with the offending board members and contractor.  Had mediation occurred early on, especially had it been required under the CC&R’s, things may have been manageable before they got out of control.

Once the lawsuit was filed, August said that both he and another judge tried to assist the parties in settlement discussions, but such attempts were unsuccessful.  This is not surprising, given that the early resolution of conflicts brings the parties together to have discussions before emotions escalate as fully as they did in this conflict.  The later the resolution attempt, the more difficult it is to get parties to see eye to eye and work together toward a resolution. As this case progressed, huge amounts of legal fees were expended, and the entire complex had divided down the middle.  Once a case has become this volatile, attempts at resolution require an extraordinary amount of de-escalation before resolution can be attained.

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Lee Jay Berman - med-150Hello and Welcome.  Please allow me to introduce to you my new blog:  Eye On Conflict.  I’m not the first mediator to blog, and I won’t be the last.  But like everything a good mediator does, this choice was well thought out and thoroughly researched before I embarked.

Beginning with the environment.  What you are seeing around this environment represents to me a lot about what I do as a commercial mediator.  At the top, the feather represents the light touch a mediator sometimes needs, as mediation is a lot about nuances, subtleties and a delicate touch.  And yet the coins represent the thing people are generally fighting over.  The pen indicates to me the ceremonious signing of the mediated agreement, which represents a person’s consent and their bond to adhere to the commitments made in that agreement.  The stone will always remind me of my dear friend Erica Ariel Fox’s Global Negotiation Insight Institute (GNII), as she uses it in her picture logo, and her teachings stay with me where ever I go, but especially in the mediation room.  The leaves relate to the acorn at the bottom of the page, where every great settlement – simple or complex – grows from the tiny acorn of an idea that often other people said would not work.  Kind of like a non-lawyer being a successful mediator working in the world of litigated cases.  Notice at the top how one is younger and rich in color, and the other is older and looks about to turn.  It is always my goal to mediate with the energy, stamina, wit and being the quick study of a young soul, but with the wisdom of a person seasoned with the years of a life in business, negotiating complex deals way beyond my years.  Given that when I began 15 years ago, I was a young-looking 32 year old, the first part wasn’t ever in doubt.  But I have always lived my live through the eyes of an 80 year old me, rocking on the front porch with a glass of iced tea in hand, looking back with the perspective of how my work this day, and the deal we reach, will be judged by me and others from that retrospect.

The dark wood represents the solid backing I have always had from my family, my friends, and from my loyal clients – often the lawyers who have trusted me with their clients most difficult disputes.  And the coffee stains at the bottom represent to me the many, many hours of hard work that have gone into creating my mediation practice, and that in a single day to any meaningful resolution.

This blog is intended to be a discussion, a dialogue with you, about mediation, conflict resolution, dispute resolution, conflict management and negotiation in settings from neighborhoods to workplaces to litigated cases to current events and global issues.  I welcome and look forward to your input, comments, additions, and disagreements.  Let’s talk!

My two themes, which you will find me repeating often throughout this site are:  There is no substitute for experience. And:  Tough issues call for masterful solutions.  I urge you not to underestimate either one.  And I hope, through the words that will follow in the days, months and years ahead, to provide both.

I will, from time to time, mention the training institute I founded in 2008, the American Institute of Mediation (the AIM Institute), and my radio talk show called Talk It Over.  I will do my best to avoid shameless plugs and only refer to them when there is a learning point or a resource that can be derived from them.  But I do hope you’ll check them both out.

One last thing, while I think my writing is conversational and easy to read, and grammar is generally OK, I’ll confess right now that just like when I drive my car, there are some rules I choose to follow and others I choose not to.  Case in point:  in writing, I choose to end sentences with prepositions, when it feels right to me.  There, I’ve said it.

I’m glad we could get a little better acquainted.  I hope you’ll stop by and visit again some time soon.

Until then,

Lee Jay

Lee Jay Berman
The Mediation Offices of Lee Jay Berman
Founder & President, American Institute of Mediation
Co-Host “Talk It Over” radio show
Complete C.V. and info at www.LeeJayBerman.com
More in mediation at www.MediationTools.com

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