Cal Biz Lit

REMOTE MEDIATION DURING THE PANDEMIC SHELTER IN PLACE PERIOD

 

 

 

By Bruce Nye, www.BruceNyeMediation.com

During this current era, in many parts of California (and in many parts of the United States) arranging court appearances, live discovery, group meetings and mediations ranges from difficult to impossible.  Many courts have used telephone participation or website appearance programs for the parties’ appearances.  Some attorneys have used Zoom or a few other video services for depositions.  And some mediators have been using Zoom or other video services to lead mediations.

I am happy to state that three times in two weeks I have successfully used BlueJeans.com to lead mediations that resulted in settlements.  This helped to continue my success rate in mediations to above 80%, and as a guy to whom statistics are essential, that is great news to me.  Here is what I have learned:

1. It is still important to have pre-mediation conferences separately with each side before the mediation itself. This provides an essential opportunity to make sure that both the lawyers and their clients get a chance to meet the mediator and gain a full understanding of the process before it takes place. Before the pandemic crisis, when mediations were all conducted live and face-to-face, we often conducted the pre-mediation meetings by conference call.  We can still do that, but it sometimes works to conduct them by Zoom or another type of remote video. It is absolutely best to have the parties present for the pre-mediation conference, and not just the lawyers, so that the parties have a full understanding in advance. Also, this is a good time for the mediator to get a commitment when possible  that the individuals attending will be those with full settlement authority.

2. When, as is currently the case, the mediation is conducted by remote video, the pre-mediation meetings are even more important. It will normally be my practice to first send a letter to the parties explaining the remote on-line process and how they should connect once they receive the link I will send them by e-mail.  A part of the pre-mediation conference that is unique to the current situation involves teaching the parties and lawyers the technical aspects of participating in the mediation. For this, a conference call may be better than a Zoom meeting.

3. It is not uncommon for mediations to take place when a party’s principle with full authority is not present. While the mediator will always prefer having the decision-makers present, the mediator will understand that the in lawsuit world because of distance away, schedule, or other matters, sometimes not everyone will be able to attend.  In those instances, it is not unusual to speak with decision-makers by telephone during the process.  However, during the Shelter in Place Era, with nobody attending the mediation live and in person, Zoom or another remote video program makes it easier for all parties and their decision-makers to attend.  Recently, I have successfully helped settle a case where a primary decision-maker attended via remote video from across the country. 

4. There are typically two meeting elements of mediations: Joint mediation meetings, and separate caucuses.  Under California State laws, all information exchanged during the joint meeting is confidential, meaning that mediation communications made may not be offered in evidence at trial. And by terms of the Agreement to Mediate that the parties and their attorneys sign, communications by a party during the caucus is also confidential, meaning that it cannot be communicated to the other side, or to anyone, without the permission of the party in the caucus.   Remote video programs work very well for both.  They are, of course, set up to allow everyone to be present on line and on either their cell phones or computer monitors for the joint programs.  Most of them also permit establishing “breakout rooms,” meaning electronic online rooms to which individuals can only participate if I invite them.  These work perfectly for the mediation caucuses, ensuring participation and confidentiality.

5. Finally, so far the remote video mediation process has been very effective. The parties just about always seem comfortable speaking to all participants in the joint sessions, and talking to the mediator during the caucuses. We all look forward to the complete end of the Covid-19 pandemic and the Shelter in Place requirements.   When they end, I suspect that some attorneys and parties will want to continue with the remote video approach.  If that is possible and desirable, I will continue to make that available. My best bet is it will be both.

A FEW OF THE NEW CALIFORNIA RULES OF RESPONSIBILITY GOVERN MEDIATORS AND ARBITRATORS

 

Most California lawyers know that after many years of work by the State Bar Commission for the Revision of Rules, The Cal Supremes approved 69 new /rules of Professional Conduct on May 10, 2018 and they become effective November 1, 2018. All the new rules are here.  But as CBL publisher Bruce Nye devotes more of his time to providing mediation service, CBL wants to focus briefly on some rules that have received very little attention, relating to mediators and other third party neutrals.

First, there is new Rule 2.4, “Lawyer as Third-Party Neutral.”  The key elements are these:

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons* who are not clients of the lawyer to reach a resolution of a dispute, or other matter, that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows* or reasonably should know* that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Then, there is new Rule 2.4.1, addressing temporary judges, referees and court-appointed arbitrators:

A lawyer who is serving as a temporary judge, referee, or court-appointed arbitrator, and is subject to canon 6D of the California Code of Judicial Ethics, shall comply with the terms of that canon.

Section 6D of the California Code of Judicial Ethics is quite exhaustive. And exhausting. And interestingly, the comments to the new rule state that the intention is to permit the State Bar to discipline lawyers violating the Code of Judicial Ethics while working as temporary judges, referees or court-appointed arbitrators, and also state that the rule doesn’t apply to a lawyer “serving as a third-party neutral in a mediation or a settlement conference, or as a neutral arbitrator pursuant to an arbitration agreement.”

And finally, there is the new Rule 1.12, indicating that judges, arbitrators, mediators and other third-party neutrals can’t later on represent one of the parties in the same matter, or seek employment in the matter in which the third-party neutral served substantially.

These rules are all a matter of common sense. But this is the first time the California State Bar has been able to discipline third-party neutrals for anything.

MEDIATION: GOVERNOR BROWN SIGNS NEW LAW GOVERNING ATTORNEYS’ OBLIGATION TO INFORM CLIENTS OF MEDIATION CONFIDENTIALITY RULES

 

Since 1997,  California Evidence Code section 1119  and following have barred the admissibility, discovery or compelled disclosure of statements, admissions or writings made “in the course of, or pursuant to, a mediation or mediation consulting” with only a few exceptions largely involving the parties’ consent, and further providing that “communications, negotiations or settlement discussions by and between participants in the course of a mediation or mediation consultation shall remain confidential.”

For a long time, it has been the practice of mediators to so notify the parties to a mediation and, often, to require them to sign a confidentiality agreement. A typical example of one of these agreements (the one used by Bruce Nye Mediation) is here.

On September 11, Governor Jerry Brown signed Senate Bill 954, effective January 1, 2019, which is designed to increase the likelihood of confidentiality rules being followed.

 

More after the jump.

Emotional Intelligence and Why It’s Important In Mediation

The other day, CBL ran across an interesting mediation article in International Comparative Jurisprudence by Edward J. Kelly of the University of Tennessee and Natalija Kaminiskiené of Lithuania’s Mykolis Romeric University. The authors write about the important role played by emotions in the search for dispute resolution.  This brought back many recollections from mediations, from settlement conferences, and from times when CBL represented individuals in litigation matters.

While there are a number of definitions of “emotional intelligence,” and no small amount of controversy in the scientific community about the validity of a number of them, Kelly and Kaminiskiené cite one definition and one model that are both critical in every negotiation.  The definition is from Bowling & Hoffman (2000) Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation. Bowling and Hoffman define emotional intelligence as “the capacity for recognizing our own feelings and those of others, for motivating ourselves, and for managing emotions well in ourselves and in our relationships.”  And the four elements of the model from Bradberry & Greaves, 2009 Emotional Intelligence are these: self-awareness, self-management, social awareness and relationship management.

So let’s think about why this is important from the standpoint of both an attorney /advocate during the negotiation process and from that of a mediator. We'll do that right after the jump. 

What Makes a Mediation Successful?

For the past seven months, CalBizLit, operating under the birth name Bruce Nye, has been regularly serving as a mediator in Northern California.  With this peacemaking experience, and after a decades-long history of participating in mediations as an advocate, CBL is thinking it would be worthwhile to write about what makes mediation succeed and what makes it fail.  So we’ll be providing some posts on that subject, starting with this one. Nye’s mediation website is at www.brucenyemediations.com.

Regular litigators, corporate counsel and insurers are well aware of the mediation process, and many of them have much experience in the mediation world.  Once upon a time, we settled all of our cases by picking up the telephone and exchanging letters (remember letters?) Sometimes in litigation with represented parties, the parties ought to be able to reach settlement by sitting down together, talking on the telephone or both.  But in many other instances, the mediation process – where a neutral works with both sides to help them reach a decision they control – is the way to go. So here are some initial thoughts on five things likely to make a mediation more successful.

More after the jump.