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Community News,
Alternative Dispute Resolution

Mar. 16, 2023

A pioneer of using mediation, the California legal community celebrates mediation week

The CLA Litigation Section Committee on Alternative Dispute Resolution in California Litigation Week is offering five full days of webinars.

Serena K. Lee

Vice President of Operations, JAMS

Lee is the current vice chair of the CLA's Litigation Section Committee on Alternative Dispute Resolution and the chair of its Programs Committee.

Do Mediators need an IOLTA Account? Are you aware of the all and subtle ways bias can affect a mediation? Do you really know how to listen in a mediation? What if there are personalities involved many would call impossible?

All savvy counsel know mediation can resolve their clients' disputes. But can all savvy counsel confidently answer those questions?

On March 20-24, the California Lawyers Association is holding "California Mediation Week" to answer those and other critical questions about mediation. The CLA is meeting the 2009 standing resolution of the Judicial Council - declaring the third week in March as Mediation Week.

The resolution was the culmination of the history of California being a leader in establishing the practice and culture of mediation. While mediation was used informally for decades, 1986 saw the passage of the Dispute Resolution Programs Act, which provided funding for court mediation programs. In 1993, California passed the Civil Action Mediation Act, which established a meditation pilot program in Los Angeles County that could be adopted by other counties. In 1997, California issued Chapter 2, Mediation, to Division 9 of the Evidence Code, which provided for confidentiality in mediation proceedings.

The CLA Litigation Section Committee on Alternative Dispute Resolution in California Litigation Week is offering five full days of webinars to promote the use of mediation to new attorneys, provide advanced settlement strategies to experienced attorneys and give all attorneys an opportunity to reflect on the effect of implicit bias on mediation and the art of active listening, a skill that is sure to help in both the professional and private lives of lawyers.

The lineup of Mediation Week webinars (only $25 per program for CLA members, $55 for non-CLA members) is as follows:

Monday, March 20 - Ethics for Neutrals: Do I Need an IOLTA Account? with Neil Wertlieb (co-sponsored by CLA Ethics Committee): How do the California Rules of Professional Conduct apply when a California lawyer acts as a neutral? And, in particular, what do the changes to trust accounting mean for neutrals?

Neil Wertlieb, inaugural co-chair and founding member of the CLA's Ethics Committee and general counsel at Milbank LLP, leads this timely discussion of a challenging issue: How do the Rules of Professional Conduct apply to a lawyer who acts as neutral and does not have a lawyer-client relationship? Some areas overlap with obligations that neutrals have in their role as neutrals (whether or not they are lawyers); e.g., all neutrals have an obligation of confidentiality. These are the easy ones. But what about those that do not exist for non-lawyer neutrals, like trust accounting rules? Join this ethics discussion to ensure that your practice as a neutral does not jeopardize your good standing as a lawyer.

Tuesday, March 21 - Mediation Basics with Aaron Gothelf (co-presented with the New Lawyers Section of CLA): This program will focus on how newer attorneys can successfully represent their clients in mediations that lead to settlement. Topics Include:

- The timing of the mediation

- Drafting informative mediation statements

- Pre-mediation communication with the mediator

- Preparing clients for the mediation

- Use of joint and separate sessions

- Overcoming impasse

- Memorializing settlement agreements

- Post-session follow-up

Wednesday, March 22 - Bias in Mediation with Randall Choy: This program hopes to foster inclusive cultures by creating safe spaces for brave conversations. The speaker will introduce a common language that differentiates between various types of bias. Through a process of self-discovery, the hope is to strengthen workplace relationships by identifying and celebrating broader and deeper dimensions of diversity. The goal is to ensure the ability to identify and disrupt biases that have become institutionalized.

Thursday, March 23 - The Art and Science of Listening in the Midst of Conflict: How to Do It and Why It Matters with Dr. Stephen Sulmeyer, Esq., and Dana Curtis: There is far more to effective listening than meets the ear. In the midst of conflict, we need to help all parties to feel heard, understood and respected. That begins with our own listening and includes listening simultaneously on three distinct levels: listening to me, listening to you and listening to us. When this is done well, we not only obtain a better understanding of the facts of the dispute, but also get a better sense of who the parties are, the ways in which they have contributed to and co-created the dispute and the ways in which the interests of all parties can be met in crafting a solution. All of this is backed up by the latest findings of neuroscience, which will also be discussed.

Friday, March 24 - Mediating the Impossible: Dealing With Difficult Personalities with Hon. Elizabeth Allen White (Ret.), Thomas J. Johnston and Christopher E. Faenza:

Join Judge White, Thomas J. Johnston, Esq., and Christopher E. Faenza for a panel discussion of real-world examples from their experiences mediating cases that seemed impossible to settle due to difficult parties and/or attorneys. With perspectives from both plaintiff and defense, they will provide tips such as:

- Maintaining client control

- Educating clients on the mediation process

- Using breaks effectively

- Explaining the mediator's role

Mediation may not be suitable in all situations, but certainly should be considered in all. As counselors of law, attorneys who can provide their clients with the opportunity to fashion their own resolution to a dispute are sure to earn their gratitude. Mediation is a complex dispute resolution process that requires a skilled mediator and attorneys who know how to employ all the benefits of the process to assist their clients to identify a compromise. Attorneys and mediators alike are encouraged to hone their mediation skills as part of their legal education. We hope that the programs presented during Mediation Week will provide such an opportunity.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.


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