Come on, we love the ‘hardballer’…“I made him an offer he couldn’t refuse”…”I’ll be back”…and my personal favorite, “A census taker once tried to test me. I ate his liver with some fava beans and a nice Chianti." Perhaps Clint was the best hardballer of them all… “You’ve got to ask yourself one question. ‘Do I feel lucky’ Well, do you, punk?” and of course, ”Go ahead, make my day.” Ya, baby! Nothing like an ‘in your face’ hardball moment on the big screen!
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Just six weeks before trial and an hour before mediation is to begin, Lucy Litigant meets with Alfred, her attorney, at Checkers Breakfast Grill to discuss negotiation and settlement strategies for that day’s mediation session regarding a claim of approximately $7.0 million. At that private attorney client breakfast meeting, Lucy contends that Alfred said he would be willing to make a side agreement with her that as part of any mediation settlement, Lucy would be paid from the attorneys’ fees portion the sum of at least $200,000 as a paralegal for her work on her own case.
Read more »Tom, Esq. was tired…. It’d been a long day as the mediation participants reached agreement at 8:30 pm. He had the foresight to bring a proposed settlement agreement on a thumb drive, so that Tom and Jerry, Esq., plaintiff’s counsel, worked collegially in writing up “The Deal.”
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Something You Should Know: One in a series of observations derived from Academia
Topic: About Mediation
One mechanism by which people decide whether to trust strangers is the interplay between the stranger’s initial appearance and the observer’s intuitive biases. So, when entering a negotiation with opposing counsel who you have never met or meeting an opposing litigant for the first time at mediation, be aware that you may initially make a social judgment about the other person’s trustworthiness, which is based on your past biases. The result can be unnecessary misunderstandings resulting in delays or missed opportunities.
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A recent article by Daily Journal staff writer laura Ernde quoted Thomas J. Stipanowich, professor at Pepperdine University School of law and academic director of the Straus Institute for Dispute Resolution as saying, "Although arbitration was set up as an alternative to the expensive and time-consuming process of going to court, lawyers have started bringing the same litigation tactics to the arbitration process, creating higher cost and delay."
Read more »How to Use Mediation To Restore Business Judgment To Business Disputes
Business executives are supposed to be creatures of logic, carefully weighing costs and benefits. Yet some mediations fail even when there are several sensible alternatives, any of which would offer the disputants as good or a better a result than each of them would expect from other likely outcomes of the dispute.
Read more »In California, the State Legislature and the Supreme Court take the notion of Mediation Confidentiality quite literally. Rojas v. Superior Court (Coffin) (2004) XX Cal. 4th XX.
Unfortunately, shrewd legal counsel may turn the “public policy” goal of that confidentiality shield on its head. Their technique: prepare accurate evidence which is adverse to their client’s position and introduce it as a document at Mediation, with the assurance that this “truthful writing” will be cloaked in the Invisibility Shield of Mediation Confidentiality! The truth seeking which is supposed to be an integral part of the adversary process instead morphs into a tool for hiding the truth.
Read more »One in a series of articles exploring the ethical dilemmas of mediation participants.
Supreme Court Justice Scalia has been requested by the Sierra Club, a litigant with an appeal pending involving Vice President Cheney and the White House task force he headed to develop the Bush Administration’s national energy policy, to step down from consideration of this case.
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