By Steven G. Mehta

The long awaited results of a trial San Luis Obispo recently came down.  The trial that took approximately three months to conduct finally resolved.  The verdict was reported by Nick Wilson of the San Luis Obispo Tribune.

Mr. Wilson wrote:

The family of a 96-year-old woman who developed a bedsore on her lower back was awarded $161,264 on Tuesday in a lawsuit filed against her caregivers, but two local doctors also named in the suit were found not responsible for any wrongdoing.

There were also allegations of elder abuse against the nursing home which the jury found to be unfounded.  According to Mr. Wilson’s interview with one of the jurors, the jury foreperson Cynthia Jenkins of San Luis Obispo said it was difficult for the jury to come to its decision after two days of deliberations. She said she felt concern for each of the parties involved in the suit.

“We didn’t think anyone was intentionally malicious,” Jenkins said. “We did think there was some carelessness [regarding the Nursing home]. But it was a tough spot for everyone.”

To read the rest of Mr. Wilson’s article, click on my elder abuse verdicts page here.

By Steven G. Mehta

I thought I would start this week by creating a new feature reflecting the history of mediation.  This feature will discuss mediation as the term has been used in history, and how mediation has worked, not worked or been used in historical terms.   This feature will try to use documents or news from the past to reflect on the history of mediation.

Here is one discussion of mediation in history shortly before world war II starting for the United States.  Here is a piece from Time Magazine on February 10, 1941

Far East: Mediation: It’s Wonderful

The war between Thailand and French Indo-China ended last week. The victor was Japan. Nobody had asked Japan to mediate the quarrel, which had gone on intermittently in the swampy jungles along the Mekong River since October, but fortnight ago Tokyo offered its services. When the offer was not immediately accepted, Japan became insistent, threatening. Nipponese warlords insisted that, as “the most stabilizing power in the Far East,” Japan alone had the right to settle Oriental differences. Under duress Vichy, then Thailand, accepted.

Last week the stage was set for mediation, Nipponese style. The Japanese cruiser Natori steamed into Saigon harbor. Off the southeast Indo-Chinese coast appeared two Japanese aircraft carriers, two cruisers and two torpedo boats. Planes from the carriers cruised low over the city. At an appointed hour six French and six Thai delegates were taken aboard the Natori, where seven white-uniformed Japanese officers headed by Chief of the Japanese Military Mission in Indo-China Major General Raishiro Sumita received them with bows and toothy smiles.

Tea was served; then the delegates prepared to mediate. Before either Thailand or Indo-China could present a claim or grievance, Japan handed both a bill for her services as mediator — to be paid in advance. She demanded: a virtual monopoly over Indo-China’s production of rice, rubber and coal; a free hand to exploit Indo-China’s natural resources; military garrisons along the Chinese frontier; Japanese inspectors at all Indo-Chinese customs houses ; a naval base at strategic Camranh Bay and defense concessions at Saigon; air bases throughout Indo-China. From Thailand she demanded a naval base in the Gulf of Siam for a fleet of 15 battleships, cruisers and auxiliary craft. Unless the terms were accepted on the spot, it was intimated, naval units would go into action and invasion of both countries would follow. The delegates signed.

To read more: click here

To be honest, I am not sure that society historically has used the term mediation properly.  The problem with using the term mediation in all areas of conflict resolution is that the term gets blurred.   This is especially true when the public is asked about mediation.  Invariably I ask plaintiffs in mediation if they know what mediation is.  They always tell me that it is when a third party listens to the evidence and makes a decision.  Other variations of that answer often follow.  Or people will tell me they don’t know the difference between an arbitrator and a mediator.  Historical references as these above do not, unfortunately, help the process of understanding mediation.

That is why the ABA’s program to try and educate about the concept of mediation is a good one.

This is a day in mediation history.

By Steven G. Mehta

I recently saw an interesting essay on anger, its cause, and the reasons behind it that I thought you might like by author PAVEL G. SOMOV, PH.D.  Here is a brief excerpt:

By the time we get out of kindergarten we have a sneaking suspicion that there is more than one take on reality.  This realization (that things are not black and white) pretty much crystallizes by the time we get out of the high-school.  What starts out as a clear-cut case of pain and pleasure and right and wrong year after year becomes progressively more nuanced and subtle.  As we learn the befuddling lessons of life, we become more tempered, more tentative.  We begin to appreciate that Socratic epistemological modesty of only knowing that we don’t know anything.  As we cultivate this philosophical doubt and dress-rehearse “who knows?” shrugs of nonchalance at the absurdity of life, we secretly yearn for certainty.  That’s why we relish anger.

Authentic anger comes from total conviction in your cause, however serious or trivial it might be.  It is pretty much impossible to be really angry and in doubt.  Anger is beyond doubt.  Anger is certainty.  Anger is a moment of crystal clarity.  And that is its infectious emotional allure.  Anger – unless you are faking it – is a rare moment of feeling that you are absolutely and unquestionably right.  Anger is righteousness.

To read more, click here.

By Steven G. Mehta

There have been several recent verdicts on elder abuse cases.  Some of them have had defense verdicts or negligence findings.  I will try to find the public reports of these and then report them in one post.  However, just this week, a verdict in Ventura County came down on a claim of elder abuse.

To read the Ventura news article on this, please click here.

By Steven G. Mehta

How people verbally fight and address conflict can have a direct consequence on their stress levels.  New research shows that the way you argue has a direct connection to the amount of stress you create from that argument.

A professor of biobehavioral health suggests the use of thoughtful words during relationship conflicts can mitigate health problems caused by stress. The latest research from Graham et al. (2009) shows that couples who are more considerate and rational during a fight release lower amounts of stress-related proteins. This suggests that rational communication between partners can ease the impact of marital conflict on the immune system.

Individuals in a stressful situation — as in a troubled relationship — typically have elevated levels of chemicals known as cytokines. These proteins are produced by cells in the immune system and help the body mount an immune response during infection. However, abnormally high levels of these proteins are linked to illnesses such as cardiovascular disease, type-2 diabetes, arthritis and some cancers.

When people used words in a conflict-resolution discussion that suggested a thoughtful discussion — words like think, because, reason, why — the researchers found lower amounts of cytokines, the stress-related proteins. The researchers suggest it is because these kinds of words suggest that people are either making sense of the conflict, or at least thinking about it in a deeper, more meaningful manner.

This is important for mediation and other areas of conflict resolution because it helps people from increasing or escalating the tension or stress levels in a dispute.  It is helpful as a mediator to try to invoke such words and rationalization so as to also limit the amount of stress hormones.  By doing so, the entire argument or conflict can move towards the path of de-escalation to ultimate resolution.

Research Source:

Graham, J.E., Glaser, R., Loving, T.J., Malarkey, W.B., Stowell, J.R., & Kiecolt-Glaser, J.K. (2009). Cognitive word use during marital conflict and increases in proinflammatory cytokines. Health Psychology, 28(5), 621-630.

By Steven G. Mehta

We have all heard of Type A personalities.  We may have even heard of type B personalities (the lesser known cousin because it is the type that has a healthy expression of feelings, commitment to something, and desire) but have you heard about a Type C personality?  A new book discusses this new type of personality and its effects on the person.

Michael Jawer in the book he wrote with Marc Micozzi, M.D, Ph.D., called “The Spiritual Anatomy of Emotion: How Feelings Link the Brain, the Body, and the Sixth Sense,” discusses the new Type C Personality.  Here is a brief excerpt of their description of that personality type:

In recent years, a cluster of personality characteristics has come to be identified as the Type C personality, someone who is at heightened risk for a slew of afflictions, from colds to asthma to cancer. In contrast with the Type A person (who angers easily and has difficulty keeping feelings under wraps) and the Type B person (who has a healthier balance of emotional expressiveness), the Type C person is a suppressor, a stoic, a denier of feelings. He or she has a calm, outwardly rational, and unemotional demeanor, but also a tendency to conform to the wishes of others, a lack of assertiveness, and an inclination toward feelings of helplessness or hopelessness.

This is the sort of personality that Canadian physician Gabor Mate has studied extensively. Over his years of family practice, Mate relates, he began to notice a pattern: individuals who were unable to express anger, who didn’t seem to recognize the primacy of their own needs, and who were constantly doing for others, appeared to be the ones most susceptible to a slew of ailments, from asthma, rheumatoid arthritis, and lupus to multiple sclerosis and amyotrophic lateral sclerosis. These conditions are all autoimmune disorders. Mate claims that, when an individual engages in a long-term practice of ignoring or suppressing legitimate feelings–when he or she is just plain too nice–the immune system can become compromised and confused, learning to attack the self rather than defend it.

Emotional expression, in Mate’s view is absolutely essential because feelings serve to alert the individual to what is dangerous or unwholesome–or, conversely, to what is helpful and nourishing–so that the person can either take protective action against the thread or move toward the beneficial stimulus. If someone never gets angry, this reflects an unhealthy inability or unwillingness to defend personal integrity. Such “boundary confusion” can ultimately become a matter of life and death. If someone just cannot say no, Mate argues, his or her body will end up saying it in the form of illness or disease.

I have seen this personality type in mediation, and the expression of emotion is a very important one for resolution of the case.  If that emotion is not expressed, often the case cannot get settled because the person doesn’t recognize that they need to let go or express the emotion.  As a mediator, it is important for you to be able to recognize this personality type and help them understand their own needs, which will in turn help them resolve the case.

By Steven G. Mehta

Some of you may have seen the mediation in Wedding Crashers.  For those of you that didn’t, you can see it along with some negotiation advice in my post about Wedding Crashers Negotiation and Mediation Lessons.

I saw an article by sports writer Kevin Hench about a hypothetical mediation with Tiger Woods and his wife about their prenuptial negotiations, with Wedding Crashers as the backdrop.  I thought it was interesting, and thought you might enjoy.

The Florida Highway Patrol has issued a $164 citation to Tiger Woods for careless driving, meaning the incident will cost Tiger roughly $80,000,164.

Suddenly Vanessa Bryant’s $4 million diamond ring seems kinda chintzy.

Tiger’s “transgressions” have brought about a hasty renegotiation of his prenuptial agreement with wife Elin Nordegren that will quadruple the originally agreed upon $20 million as long as she sticks it out for another couple of years. So how did the sides arrive at this new figure, roughly halfway between Kobe’s bejeweled “my bad” and Michael Jordan’s reported $150 million settlement with ex-wife Juanita?

Channeling the opening mediation scene from Wedding Crashers, we now try to piece together how that negotiation might have gone down.

Fade in:

Tiger and his attorney sit on one side of the table in the family dining room, Elin and hers on the other. A mediator sits at the head of the table. You can cut the tension with a 1-iron.

Mediator: Okay, gang, let’s get started. I am here to mediate. Like Rocco. (Nothing.) Rocco Mediate? Anyone? No? All right, uh, I believe Mr. Woods’ attorney has an opening statement.

Tiger’s attorney: What my client does for a living, what he does better than anyone else in the world, is by its very nature a monotonous occupation. Literally working for hours upon hours to replicate the exact same swing over and over. In his field, variety is not good. Metronomic consistency is what makes him the best. We do not feel it is reasonable to then ask him to enter into that same level of monotony in his personal life.

Mediator: Really? That’s your opening move?

Ms. Nordegren’s attorney: So, for the record, Mr. Woods views life with the mother of his children as “monotonous.” Tedious, if you will. In light of this, we would ask that the original prenuptial agreement be augmented by $5 million.

Mediator: Yeah, that sounds about right. (Aside to Tiger and his attorney.) Word to the wise, monotonous and monogamous may share a Greek root, but you use them interchangeably at your own peril.

Ms. Nordegren’s attorney: Furthermore, it has come to my client’s attention that her husband’s extra-marital dalliances began while she was pregnant, a violation of their marital vows so egregious we believe it merits an additional $10 million to the original agreement.

To Read the rest of the post, please click here

By Steven G. Mehta

Congratulations to Diane Levin for her blog Mediation Channel being selected as one of the top 100 blogs to read in the law by the American Bar Association Journal .  Her blog was selected as an “ABA Journal Blawg 100” – one of the 100 best legal blogs in 2009 – garnering a spot under the “Practice Specific” category.

Anyone who has read her blog would surely agree that it is an informative, timely and thought provoking blog.

Congratulations again Diane!

By Steven G. Mehta

There is often a discussion of the differences in mandatory or voluntary mediation.  Some people believe that mandatory mediation is not as effective as voluntary.  Whereas, others believe that the process is as effective, but that the parties come to the two different mediations with different perspectives.  I recently read a book that shed some new light on this topic.

The book, which I have previously discussed in other posts, is called Perceptions in Litigation and Mediation by Tamara Relis.  In her book, Ms. Relis discusses the difference between the lawyers’ perceptions of these types of mediation and the parties’ perceptions.  The following are some of her conclusions based upon her study of mediations, and her review of literature on mandatory and voluntary mediations.

She initially explains that when discussing the events that happen at mediation, that the attorneys do not typically differentiate the mediations by mandatory or voluntary.  However, despite that lack of distinction in the facts relating to mediation, virtually all attorneys spoke positively about voluntary mediation but criticized mandatory mediations (especially in medical cases) as being too early.  This conclusion was supported by several surveys in different states regarding the two types of mediation.

Interestingly, however, in one study in Ohio, there was no relationship found between the timing of mediation and the chances of settlement. The lawyers’ views on the effectiveness of mediation appeared to “be affected more by their own expectations as to timing than by the actual timing of mediation.”  In fact, according to that study, cases were more likely to settle earlier rather than later.

Relis comments that many mediations are affected by the attitudes the lawyers bring to the mediation.  In many cases, according to mediators, the attorneys were often inadequately prepared for the mandatory mediations.

In one study the researchers found that “lawyers’ lack of preparedness may mask the fact that lawyers still view [mandatory] mediation as simply an obstacle to get through…”

This view of the two types of mediations is contrasted with the parties’ views.  According to Ms. Relis’ research, “all plaintiffs viewed their mediations, regardless of whether they were mandatory or voluntary, simply as a stage in the litigation…”  In addition, the defendants – including in the medical cases — appeared to be keen to have mediation early on.

In addition, plaintiffs entered both voluntary and mandatory mediations with the same views on liability of the case and with the same level of desire to settle the case.   Interestingly, there were few physicians who underwent and attended mandatory mediations.  But out of those the physicians, they were “far less certain that their mandatory mediations would not end in settlement” compared to their lawyers.  Another factor affecting mediation – the cost of mediation – was not a consideration for the plaintiffs.

Based upon this research, Ms. Relis concluded that legal actors considered tactics of mandatory and voluntary mediations as it related to timing of mediation.  However, neither plaintiffs nor defendants mentioned the timing of mediation as an important factor.  For the parties, the consensus was that the earlier the mediation, the better.

Second, there is a dissonance between the lawyers’ expectations and the clients’ expectations in mandatory mediations.  This could substantially affect the outcome and effectiveness.

Finally, she explained that this disparity can also be considered part of the desire to control the legal ramifications and scenarios.  The attorneys felt more comfortable controlling the outcome when they had more information about the legal issues and were less willing to discuss the issues as desired by the parties, and were even less willing to discuss extra-legal issues.

According to her research and others, she concluded that although mediation is viewed favorably by attorneys, they restrict endorsement of early mediation to cases that only have damages at issue and are not disputing liability.

Personally, having mediated both mandatory and voluntary cases, I have some additional observations.

First, in some cases, mandatory mediation is also affected by the attorneys’ perception of the competence of the mediator.  Many attorneys will comment to me anecdotally that they do not want to waste time on mandatory mediations because they are concerned that the mediator will not have the necessary skills to help the parties resolve the case.

Second, many early mandatory mediations are viewed by the defense as effective if it is an opportunity to resolve the case for nominal sums.  This is supported by Ms. Relis’ research.  However, if it is not “nuisance value” then the attorneys need time to be able to meaningfully give advice to the clients.  This can be a reasonable issue.  The clients are relying on independent advice of the attorneys regarding the legal ramifications of the underlying factual issues.  That cannot simply happen by the snap of magic fingers.  It takes time and effort to get “up to speed” before an attorney can meaningfully give advice.  Moreover, the attorney may not know all the facts, and usually only knows one side of the story.  As such, the timing can be very important in allowing the independent verification of the liability picture.

Third, no matter which type of mediation is taking place, it is vital for its success to have everybody adequately prepared.  As such, if the parties and their attorneys anticipate that either side will be insufficiently prepared, they need to delay until that can be done.

Finally, it is also incumbent on the courts to try and create some methodology to allow the parties to be sufficiently prepared with the least amount of effort expended.  That does not currently exist.  And such a process would then help the mandatory mediation process.

By Steven G. Mehta

Recently the Ontario Bar Association, through its esteemed member Colm Brannigan, did a review of my new book 112 Ways to Succeed in Any Negotiation.  I thought you would be interested in reading the review….

Negotiation is a complex process involving psychology, emotions and communication. Just when you think that everything that needs to be said has been said, in one or more of the vast number of books and articles on the topic, another interesting work comes along.

This book is radically different from most on the subject. In it, Steve Mehta has done an excellent job of breaking down complex processes and ideas into manageable bites. By taking this approach, he has made negotiation understandable at a basic level especially to the general reader. This is not an easy thing to achieve. It is not written as an academic work, but it certainly has educational value to the reader.

To read the entire review, please click here.

Thank you Colm, for your review.