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Managing Dismissive and Bully Attorneys Series

Managing Dismissive and Bully Attorneys” condensed version of the nine article series, published by the American Bar Association in the July/August, 2016, edition of Probate & Property Magazine

Attorney to attorney interactions often are a battleground of skill, knowledge and personalities. It is the personality component that can lead to the same dysfunctional relationship between attorneys that parties experience with each other. We explore these sometimes explosive relationships and provide effective tools to managing the most difficult and possibly high conflict personality opposing attorney. Dismissive and Bully attorneys are described along with dos and don’ts. Tools for managing Dismissive and Bully attorneys are explained in detail.

Part 1 – “Managing Your Dismissive and Bully Peers” (November, 2013)

Attorney-to-attorney interactions often are a battleground of skill, knowledge and personalities. It is the personality component that can lead to the same dysfunctional relationship between the attorneys that the parties experience with each other. This is the first in a series of articles that explore these sometimes explosive relationships and provide effective tools for attorneys to manage the most difficult and possibly high conflict personality opposing attorney.

Part 2 – “Tools that Manage Dismissive and Bully Attorneys – Caging the Tiger” (December, 2013)

Tools that work in dealing with them.  Although the Dismissive and Bully attorneys have characteristics that make them unique, these tools, selected from interviews with forty attorneys, are effective for managing both.

Part 3 – “Additional Tools that Manage Your Dismissive and Bully Attorneys – Caging the Tiger” (January, 2014)

Part 4 – “Actions That Do Not Work in Managing – Enraging the Tiger” (February, 2014)

Part 5 – “Additional Actions That Do Not Work in Managing – Enraging the Tiger” (March, 2014)

Actions that do not work or that contribute to dysfunctional relationships with these opposing attorneys.

Part 6 – “Gender: Negative Experiences of Female Attorneys and Their Responses” (April, 2014)

Experiences unique to female attorneys and their interactions with male attorneys during the course of their careers. We also share the how and why of some women’s responses to these experiences, with positive or negative results.

Part 7 – “Gender as an Advantage and Additional Female Attorney Strategies” (May, 2014)

Additional experiences unique to female attorneys in their interactions with male attorneys, and how they have responded. Certain responses are more effective than others, and their positive or negative impact can vary with the situation and delivery.

Part 8 – “Gender: Negative Experiences of Male Attorneys” (August, 2014)

We explore some male attorneys’ experiences and their strategies with female attorneys.

Part 9 – “Gender: Male Attorney Strategies” (September, 2015)

Gender based experiences of male attorneys. Additional effective strategies of male attorneys in managing gender based Dismissive or Bulling behavior of female attorneys.

Identifying and Managing Difficult, High Conflict Personality Clients

Be Careful Whom you Choose to Represent – New Client Screening Process
(May, 2015)

A new prospective client sometimes presents a serious challenge: who are you really dealing with? If there is concern the prospective client may be difficult or worse, perhaps high conflict personality such as narcissistic, borderline, histrionic or sociopathic, think twice. These tools help attorneys avoid representing the 10% of the clients who cause 90% of their grief.

Identifying and Managing High Conflict Personality Clients“, condensed version of the six article series published by the Daily Journal has been published by the American Bar Association in the January/February, 2012, edition of Probate & Property Magazine.

This article helps attorneys and other professionals to identify difficult, high conflict personality clients and present approaches on how to better manage them by discussing the four most common high conflict personalities: borderline, histrionic, narcissistic and antisocial and their enablers. For these clients, the drive for conflict arises from their personalities, rather than the business deal, issues or amount of money involved. These personality types represent 10% to 12% of the general population and a significant proportion of a lawyer’s, accountant’s and other valued advisor’s practice. There is a life-long pattern of blaming others and not taking responsibility for their actions. How these very difficult individuals are handled can either escalate or contain your relationship with them.

Identifying and Managing Difficult, High Conflict Personality Clients – Introduction and Borderline Personalities” (January, 2011)

How many times have you worked with a client who, at first seems appealing and charming while portraying themselves as a victim, but all the while is oblivious to their own behavior? Later you realize the client is chronically adversarial, manipulative, inflexible, unreasonable, impossible to please or takes no responsibility for problems they have helped create. “They believe that their distorted or exaggerated views of a situation are accurate, making it difficult for them to understand why others do not agree with them. They tend to disagree with their attorney’s assessment of the strengths and weaknesses of their case and legal strategies. When challenged they become defensive and entrenched.

When you give the client bad news, he blames you and may become abusive toward you. The relationship with your client becomes a roller coaster ride that is increasingly difficult to get off.

This series of articles will help lawyers identify difficult, high conflict personalities and present approaches on how to better manage them by discussing the four most common high conflict personalities: borderline, histrionic, narcissistic and antisocial. For these clients, the conflict is driven by personalities, rather than the issues or amount of money involved. There is a life-long pattern of blaming others and not taking responsibility for their actions. How these difficult people are handled can cause litigation to escalate or be contained. We will explore tools that work with each disorder, and because these clients may sue for malpractice if they are dissatisfied, we will discuss how to protect yourself.

Identifying and Managing Histrionic Personality Clients” (February, 2011)

Histrionic personality disorder makes clients see things differently. “They believe that their distorted or exaggerated views of a situation are accurate, making it difficult for them to understand why others do not agree with them. They tend to disagree with their attorney’s assessment of the strengths and weaknesses of their case and legal strategies. When challenged they become defensive and entrenched.” For these clients, conflict is driven by personalities rather than issues or the money involved.

Identifying and Managing Narcissistic Personality Clients” (March, 2011)

Ever had a client who is extremely preoccupied with themselves, lacks empathy, is oblivious to their own behavior and portrays themselves as the victim? You could be dealing with a narcissistic personality client. Or they could be playing you. Narcissists may exploit personal and professional relationships and are frequently in disputes with their attorneys. Sound familiar?

Learn to identify this very difficult personality client. Understand how you can better manage narcissistic personality clients by avoiding dangerous pitfalls and making the best of their weaknesses.

Identifying and Managing Antisocial Personality Clients” (May, 2011)

Antisocial personalities are by far the most fascinating, challenging and dangerous clients to deal with. This group is skilled at fooling attorneys, judges, and most mediators. “A good psychopath can play a concerto on anyone’s heartstrings&helip; Your best defense is to understand the nature of these human predators.” These individuals exploit others, and may use the legal system to harm a business partner or family member.

For their hallmarks and the most useful approaches to manage an antisocial personality client…

Read full Daily Journal article.

Double Trouble: Managing the High Conflict Personality Client’s Enabler
(June, 2011)

Beware the enabler. This is a person who is often present in meetings with you and your client and who participates as much, or more. It may feel like there is a barrier or filter between you and your client. The enabler makes it feel like your job as the attorney is much more difficult than it should be. You may have double trouble: a high-conflict personality client and their enabler. Imagine trying to tame a two-headed dragon. Ignore one head and you will get burned.

Read full Daily Journal article.

Mindfulness in Managing High Conflict Personality Clients
(July, 2011)

The attorney-client relationship with a high conflict personality client can easily become dysfunctional. These clients are intensely challenging when they claim to be the victim and do not accept responsibility. They have a sense of entitlement, are difficult to negotiate with and at worst, may berate their attorney. This concluding article summarizes the different high conflict personalities, discusses a powerful tool to help manage them, and how, as a last resort, to fire such a client.

Read full Daily Journal article.

Enforceability of Agreements Reached During Mediation

The Rule of 3 Ns: Written Settlement Agreement Reached During Mediation Held Not Admissible and Not Enforceable When Not Signed By All Parties” (December, 2008)

California Court of Appeal, Rael v. Davis, 166 Cal. App. 4th 1608; 83 Cal. Rptr. 3rd 745; 2008 Cal. App. Lexis 1457. Plaintiff Cruz Rael brought an action for breach of contract against Davis as the executor of the estate of her deceased husband, Tony Rael, Jr., and as the successor trustee of the family trust. The complaint alleged that prior to his death, Tony, Tony’s adult children from a prior marriage, and Cruz participated in a mediation as part of an underlying conservatorship proceeding. Cruz alleged a written settlement was reached at the conclusion of the four day mediation.

For this brief discussion the issues presented for mediation counsel are (1) Was the settlement agreement which Tony signed enforceable against the executor of his estate and successor trustee of his trust? (2) Was the settlement agreement admissible in court? (3) Should Davis’s motion for attorney fees incurred in the defense of Cruz’ petition be granted?

Avoiding Enforceability Problems of Mediation Settlement Agreements” (January, 2008)

A recent California Court of Appeal decision serves as a valuable refresher of several critical drafting, signing and execution concepts for settlement agreements reached at the conclusion of mediation. From the errors of counsel in the case, we can learn what might be best, or at least better, practices for counsel at mediation.

The issues addressed are:

Is a settlement agreement entered into during a mediation enforceable as to a party named for the first time in the settlement agreement? As counsel in mediation, have you looked across the conference room table during the settlement agreement drafting stage and said to opposing counsel, “Let’s add ‘E’ as a payor to this agreement” though E is not a party to the action? Likewise, during that drafting moment have you posed to opposing counsel “Let’s add ‘X’ as a releasee”, though X is not a party to the action? Are these last minute additions enforceable?

Is a settlement agreement reached during a mediation enforceable against defendants under Code of Civil Procedure, section 664.6 (CCP 664.6) if the plaintiffs have not yet signed?

When does time begin to run for the payment of agreed upon sums to be paid as set out in a settlement agreement reached during a mediation?

Are Magic Words Necessary to Make Enforceable a Memorandum, Term Sheet or Letter of Intent Signed at a Mediation?” (January, 2007)

Is a memorandum signed by the parties at the conclusion of a mediation enforceable because the memorandum contains an arbitration provision? If one of the parties to that memorandum insists they always viewed the memorandum as a nonbinding document similar to a letter of intent regarding a proposed business relationship, is the memorandum not enforceable? Is magic language required in a memorandum signed at a mediation to make it enforceable? The California Supreme Court determined that documents prepared for purposes of mediation are generally inadmissible in civil proceedings. Evid. Code, sec 1119(b). However, a signed settlement agreement reached through mediation is exempt from this general rule if it “provides that it is enforceable or binding or words to that effect.” Evid. Code, sec 1123 (b). If the document does not contain this language, the document will not be admissible nor will it be enforceable. Unless otherwise noted, all references are to the Evidence Code.

MSJ Granted to Enforce Settlement Agreement Entered at Conclusion of Mediation, Where the Agreement Was Not Signed Personally by all parties.

California Court of Appeal enforces settlement agreement entered into at conclusion of mediation, even though the agreement was not signed by all parties. This new (December 20, 2005) and landmark case has very significant interpretations concerning enforcement of settlement agreements through Cal. Code of Civil Proc. section 664.6 and motions for summary judgment through section 437c

When Is A Memorandum of Understanding
Enforceable? Not Enforceable?
” (June, 2005)

At the conclusion of a successful mediation, how should the settlement be documented? Is a memorandum of understanding sufficient or is a complete settlement agreement preferred? More specifically, to what degree must either format reflect “the parties all agreed ‘upon the same thing in the same sense’” in order to be enforceable? Does reciting Code of Civil Procedure, Section 664.6 in a memorandum of understanding assure enforceability?

Enforceability of Mediation Provisions

Failure to Mediate Leads to Remediation of Moldy Delusional Dispute (October, 2009)

This is the latest in a long line of cases in which a California appellate court is called upon to enforce, or not, a mandatory mediation provision. This case contains two new twists on two old rules, all of which is a powerful warning to attorneys. First old rule and new twist: the court will enforce mandatory mediation provisions, here a mediation provision in a settlement agreement reached during mediation. Second old rule and new twist: an attorney who represents him or herself has a fool for a client, especially when the attorney in pro per has already fired three prior counsel, has failed to mediate when required to do so pursuant to a previously signed settlement agreement and has offended the trial and appellate court. Beware: it is as if an attorney in pro per becomes infected with a virus of self delusion and is not capable of knowing the danger he or she is in.

“Award of Attorney Fees Affirmed Where Mediation Requested After Suit Filed”. (November, 2006)

In an action by the seller of real estate against the seller’s broker, the Court of Appeal (Fifth Appellate District) in an unpublished opinion affirmed the trial court’s award of attorney fees to the seller where the seller sought mediation after filing suit and notice of pendency of action against the broker and others, and where the mediation condition in the listing agreement requires pre-dispute mediation to recover attorney fees. This opinion further clarifies the meaning and significance of enforceability of pre-dispute mediation language in what is probably the most frequently used listing agreement between California real estate brokers and their clients.

Cal.Ap. Bars Attorney Fees To Prevailing Party Who Refuses To First Mediate” (March, 2005)

“The new provision barring recovery of attorney fees by a prevailing party who refuses a request for mediation means what it says and will be enforced.”

Mediation Confidentiality

California Supreme Court: No “Attorney Malpractice” Exception to Mediation Confidentiality
(January, 2011)

In a legal malpractice suit, communications between the attorneys and client during mediation of the underlying case are not admissible in the malpractice action. Those communications may not be used in subsequent proceedings and are protected by mediation confidentiality under Evidence Code §1119, unless mediation confidentiality is waived by all participants. There is no “attorney malpractice” exception to mediation confidentiality. What follows is a summary of the Court’s opinion in

Michael Cassel v. The Superior Court of Los Angeles County; Wasserman, Comden, Casselman & Pearson, LLP, Real Parties in Interest, 2011 Cal. LEXIS 2 (filed 1-13-11).

Waiver of Attorney-Client Privilege Trumps Mediation Confidentiality (May, 2010) The Court of Appeal opinion discussed in this article concerning John Porter et al. v. Steven Wyner et al., may have been overruled by the decision discussed in the article above.

Mediation counsel beware! This is the second heads up. Communications between attorney and client, including promises made by the attorney during a mediation outside the presence of other parties, counsel or the mediator, are not protected by mediation confidentiality. Simply put, Ev. Code section 958, waiver of attorney-client privilege communications, trumps Ev. Code sections 1115 et seq, mediation confidentiality.

Exception to Mediation Confidentiality: Claims by Client Against Their Attorney (November, 2009) The Court of Appeal opinion discussed in this article concerning Cassel V. Superior Court; Wasserman, Comden et Al, Real Parties in Interest, has been overruled by the decision discussed in the article titled “California Supreme Court: No “Attorney Malpractice” Exception to Mediation Confidentiality” (January, 2011)

Mediation counsel beware! Applying excessive pressure on your client to settle a mediated case at mediation might result in you being your client’s next target. In addition, the communications between you and your client immediately preceding and during mediation will not be excluded as attorney-client privilege or by mediation confidentiality in a malpractice claim and trial brought against you by your client. This is a case of first impression.

Cal Ap Defines What Conversations Between Attorneys Are, and Are Not, Protected by Mediation Confidentiality” (July, 2007)

In this very significant opinion from the California Court of Appeal, William H. Wimsatt et Al., Petitioners, V. the Superior Court of Los Angeles County, Respondent; Corey Kausch, Real Party in Interest, Court of Appeal of California, Second Appellate District, Division Three, 2007 Cal. App. LEXIS 996, filed June 18, 2007, mediation confidentiality has been further defined with respect to what conversations between attorneys are, and are not, protected by mediation confidentiality. The route the Court takes is a journey through the recent leading California cases that establish precedent in all areas of mediation confidentiality and is therefore an outstanding primer. For the sake of brevity in this article that history is provided in end notes. Along the journey the Court highlights leading cases that have also lead to an inequity to one of the parties as a result of strict interpretation of mediation confidentiality. The Court therefore recommends the legislature revise the mediation confidentiality statutory scheme to consider countervailing public policies. The Court concludes this extraordinary expedition with a warning to attorneys and parties to mediation. The opinion of the court, responding to a writ of mandate of a case in which discovery is ongoing, is written in a style of depth and breadth in anticipation of future appeal. The opinion opens many ethical issues which remain to be answered. What’s next?

Changes in Mediation Confidentiality

The recent court decisions of Foxgate and Olam have created exceptions to mediation confidentiality. How will these cases effect future mediations? What are attorney’s choices now? How have these cases changed Fisher’s mediation procedures? Take part in the debate: respond to an important survey.

Estate Conflict Management series

Conflict Management in Family Inheritance Wars” (May, 2008)

In a contested estate matter emotions can run incredibly high. Families leave the probate/estates litigation process exhausted and embittered. These feelings of client unhappiness may be exacerbated for some parties who are angry and resentful at their attorney who has charged significant fees. A contested estate matter is financially expensive, emotionally draining and the goals of the testator may have been frustrated in the process. Some family relationships may be destroyed. Perhaps there is a better way to provide estate planning clients more certainty about the future of their estates, and to provide families with peace and security for the future. Perhaps for clients in contested estate matters there are means to manage these conflicts in a less financially draining and emotionally destructive manner. When estate claims are resolved sooner, families will have spent fewer financial and emotional resources on the conflict. Managing estate conflict – both existing and potential conflicts – presents the possibility to deliver much more financial and emotional value to clients, provide higher client satisfaction, and higher personal satisfaction and more client referrals to the practitioner.

There Has To Be A Better Way: The Value in Managing Estates Conflict” (July, 2008)

In workshops throughout California, attorneys estimate the financial cost per party in estate litigation at anywhere from $10,000 to $150,000, and at times astonishingly higher. Over the last two years, I’ve led 12 Estate Conflict Management workshops throughout California. In this second of a series of workshop summaries, estate planning and litigation attorneys describe the emotional and financial devastation to the parties involved. From the wreckage we begin to extrapolate the messages that will be the foundation for brainstorming changes in the culture of how estates conflicts can be managed and resolved with less damage to the families involved.

Is There More To Life Than Death, Taxes and Post Mortem Financial and Emotional Grief?” (August, 2008)

This is the first of a multi-part article focusing on when during the estate planning / estate litigation process conflicts can be addressed and discussing the benefits and problems for each of the players in estate planning / estate litigation.

Learn the opinions of estate planners, estate litigators and probate judges concerning: Testator’s benefits of addressing potential conflicts during the estate planning process. Estate planner’s possible ethical responsibilities to the testator regarding potential conflicts that may arise after the client’s death. Discussing these issues with family members. How the estate planner can preserve the testator’s intent.

Benefits of Addressing Conflicts During the Estate Planning Process” (September, 2008)

This is the second of a multi-part article focusing on when conflicts can be addressed during the estate planning / estate litigation process and the benefits and problems for each of the players in estate planning / estate litigation. The first article discussed the benefits to the trustor. This article discusses the benefits to heirs, trustee and attorneys, and the benefits when there is a family business or divorce and remarriage.

Is Addressing Potential Conflicts During the Estate Planning Process a Pre-emptive Strike or a Can of Menacing Worms?” (November, 2008)

What are the possible consequences if during the estate planning process a testator attempts to address conflicts that could arise after his death but does not succeed in finding a solution?

How do unsuccessful attempts to address these potential conflicts impact the testator?

A trial attorney never asks a hostile witness a question unless the attorney already knows the answer. Perhaps the same approach might be prudent in estate planning. Yet taking risks in certain cases has produced some stunningly positive outcomes.

The Golden Window of Opportunity: When to Successfully Address Estates Conflicts” (January, 2009)

In almost 20 Estate Conflict Management workshops which I have conducted throughout California, attorneys estimate the financial cost per party in estate litigation at anywhere from $10,000 to $150,000, and at times astonishingly higher. An additional consequence of estates litigation can be destruction of the family. There are great potential benefits for all the usual estate litigation players who address conflicts issues during the estate planning process. And there are also considerable risks and life disrupting consequences if these conflicts are not resolved at that time. The alternative to ignoring these conflicts during the estate planning process or letting them drift toward estate litigation is to address the conflicts post mortem before litigation begins. There is a golden window of opportunity during which familial disaster might be averted.

Benefits and Disadvantages of Addressing Trusts and Estates Conflicts at Different Times on the Estate Planning Continuum” (April, 2009)

This chapter compares the benefits and disadvantages of addressing conflicts during the estate planning process, post mortem or leaving conflicts to the current default approach of estates litigation from the vantage point of the testator, heirs, disinherited/contesting parties, trustees and the attorneys and other estate planning professionals who represent them.

Legal and Ethical Requirements of a Meeting to Resolve or Manage estates
Conflicts
(May, 2009)

Eventually all the interested parties in trusts and estates conflicts must meet to address the issues. Getting to that moment and during such a meeting can be treacherous. Attorneys attending my Estate Conflict Management workshops around California have at times very divergent opinions on how to avoid, conclude or at a minimum manage conflict that arises after the death of the testator. Though there is near consensus that eventually all the interested parties must meet to address the issues. To have a productive meeting that concludes in an enforceable written settlement agreement requires certain legal and ethical criteria be met. There are differences of opinion on approaches, techniques and ethical requirements. There are even differences of opinion on the standard of care and best practices because this dynamic area of practice is emerging and evolving.

Mediums to Invoke a Peaceful Means to Your Estate Planning Client’s End (June, 2009)

Messages from the Other Side: Ways your estate planning can possess disgruntled relatives and friends to turn over a new leaf so your testator client doesn’t turn over in his grave.

Previous chapters in this series on Estate Conflict Management have addressed the great financial and emotional impact of court adjudicated estates conflicts. Earlier chapters have discussed the benefits and disadvantages of addressing conflicts either during the estate planning process or as soon as practical post-mortem, as well as the legal and ethical requirements of a meeting among all the players in order to resolve conflicts that arise during these two moments in time. This chapter focuses on alternative tools estate planners might consider building into estate planning documents in order to avert or reduce conflicts post mortem.

Take-Aways: Parting Words to Keep Conflict Apart from Those Parting Ways (September, 2009)

This final installment in the 10 chapter Estate Conflict Management serial provides the Take-Aways from the series. Probate courts are the land of broken dreams, the arena in which the testator’s plans are laid to waste by conflict and attorney fees, and familial relationships are in ashes. However, there may be a better way. Managing estate conflicts can be implemented at various stages to minimize conflict and maximize the benefits for the testator, beneficiaries, disinherited and contesting parties, trustees, and even the attorneys. In some circumstances, addressing conflict during the estate planning process will be most effective. In most cases, however, conflict is best dealt with post-mortem. Perhaps incorporating additional tools into the testator’s estate planning documents, or holding a meeting in the appropriate circumstances will help to relieve conflict. Managing estate conflicts at an earlier point in time provides a non-traditional, non-litigious, and potentially golden opportunity to resolve conflict both timely and efficiently.

General Interest

The Power of a Positive Relationship with Opposing Counsel” (November, 2010)

The vast majority of the disputes I mediate involve attorneys whose strategy is more competitive than cooperative, or whose style is more adversarial than friendly. Clearly, though there are many additional reasons disputes are mediated other than the strategy and style of the attorneys, the focus of this discussion is on attorneys’ strategy and style and the impact on the relationship of the attorneys.

Because so many of my cases involve competitive or adversarial attorneys, it was extremely unusual when I recently had two cases in which the attorneys were cooperative or problem solving and friendly. There’ is a lot we can learn from these unusual cases.

Recent Dramatic Cases Provide Valuable Practice Tools” (August, 2010)

Recent dramatic cases provide valuable estate planning and litigation practice tools: how courts react to trusts run in secrecy; when non-estate litigation counsel chase “the pot of gold”; privileged communications between trustee and counsel; seismic fault lines between the court and the duty of a trustee to disclose in an undue influence case; and when courts protect beneficiaries from self-interested trustees.

“Representing Clients in Difficult Economic Times” (February, 2009)
Full length | Quick read

“Zealous advocacy” has taken on new meaning during these difficult financial times. This may be the era of survival of the smartest and most agile attorneys – those who can find efficient, economical and beneficial ways to represent their clients’ best interests, including using a mediator for private case management. The following is a compilation of interviews conducted with many attorneys with whom I have mediated. The combined business acumen and lawyering wisdom is shared with you here.

Tools For Negotiators: “Beyond Reason – Using Emotions as You Negotiate.” Book Review. (July, 2006)

Emotions happen in negotiation. Rather than getting caught up in the emotions, which contributes to unproductive negotiation, “Beyond Reason” by Roger Fisher and Daniel Shapiro, urges us to focus on what is stimulating these emotions in you and in the other negotiator, in order to have productive negotiations. The authors describe the sources of emotions as “core concerns”. Addressing and meeting these core concerns leads to positive emotions, a frame of mind more prone to cooperating, thinking creatively and therefore problem solving.

Late Summer ’05 Intellectual Entertainment: Mediation Confidentiality, Ethics and Public Policy” (September, 2005)

How do other jurisdictions treat critical mediation issues of mediation confidentiality, ethics of disclosure of policy limits, and the public policy of the same person serving as mediator and special master? Do the recent cases discussed below give us a glimpse into the future of mediation, or a look into the past?

Early Case Management” (June, 2004)

Early Case Management, ECM, is an efficient and economical opportunity for counsel who want to make progress in moving a case toward resolution. ECM can be used to facilitate the voluntary exchange of information, documents and other things, scheduling discovery and most any other matter required by Calif Rules of Court 212 and FRCivP 16, in addition to issues not contemplated by those case management rules. If service to your client means progress toward resolution, use Early Case Management to provide the best service. Much of this article is the product of interviews with many attorneys and mediators.

Case Management as an Institutional Force” (June, 2004)

“The Vanishing Trial” was one of the most reflective and insightful segments of the April 2004 CPR Institute for Dispute Resolution Conference. We, as litigators, and as neutrals, have noticed changes in the number of cases resolved in mediation. Fewer cases are going to trial. In luminescent detail “The Vanishing Trial” brought into clear focus a phenomenon that has caused a dramatic cultural change in all aspects of the conflict and dispute resolution system. The phenomenon has had its impact upon judges, attorneys and parties.

Conflict Wisdom” (periodically updated)

Does “conflict wisdom” exist? Hear what Mahatma Gandhi, Kofi Annan, Baruch Spinoza, Sun Tzu, Marcel Proust, Omar Bradley, Woody Allen (humorous wisdom?), Janet Jackson (hip wisdom?) and others say on the subject. Too heavy for you? At the end of the thought provoking wisdom is a tantalizing, sweet answer to the one question more important than “What is the meaning of life?” and bigger even than “Who am I?”

“Preparation Emphasizes What Clients Don’t Want To Hear“, Alternatives, CPR (Center for Public Resources) Institute for Dispute Resolution, April 2002. Also published as Chapter 20, Mediation: Approaches and Insights, Juris Publishing, 2005

What are the toughest issues attorneys face in the relationship with their clients in the negotiation and mediation environment? How do attorneys successfully deal with the conflict in keeping the client happy, and keeping the client, versus the need to counsel and discuss with the client the hard issues the client doesn’t want to talk about? This article is largely the product of interviews with attorneys who have candidly shared their experiences and collective enormous expertise in successfully resolving their clients’ disputes in mediation.

Avoiding Impasse in Mediation — A Critical Checklist For Mediation Counsel“, Alternatives, CPR (Center for Public Resources) Institute for Dispute Resolution, May 2001. Also published as Chapter 24, Mediation: Approaches and Insights, Juris Publishing, 2005

Though there are many basic axioms required for a successful mediation, forget an essential ingredient and the dispute can easily impasse. This is a summary of the most critical elements necessary to avoid impasse. Even though attorneys who have considerable experience in mediation may be aware of the majority of these elements, learning the additional 25%, and becoming acutely aware of the myriad of subtleties of the other elements discussed in this article, will immensely increase the likelihood of a successful mediation.

California Supreme Court Affirms Arbitrators’ Awards Denying Attorney Fees: Impact on Attorneys’ Decisions to Arbitrate or Not?

On April 17, 2000, the California Supreme Court rendered two decisions affirming arbitrator awards which denied attorney fees in the presence of attorney fee provisions in the underlying contracts. These decisions should impact counsel’s determination of whether to arbitrate or resolve a contract claim when the contract contains an attorney fee provision.

All You Need to Know About Mediation But Didn’t Know to Ask — A Parachute for Parties in LitigationBusiness Law News, the State Bar of California, Business Law Section, Fall 1998 Also published in Alternatives, CPR (Center for Public Resources) Institute for Dispute Resolution, March 1998. Also published as Chapter 28, Mediation: Approaches and Insights, Juris Publishing, 2005

This article explains in plain English what mediation is, how parties can make it work to settle disputes, and avoid the nightmare of trial. This article may be provided to parties to mediation to assist them in preparing for mediation.

Creative Mediation Design,” Los Angeles Lawyer. This article describes several different forms of mediation.

Before the pre-mediation telephone conference, the attorneys are suggested to discuss these concepts with their clients and consider obtaining authorization from their clients to use one or more alternatives to traditional mediation described in the article.

“How to Successfully Mediate a Case: Tips to Attorneys and Mediators”

Alternative Dispute Resolution NEWSALERT.

Mediation Advocacy Tips“, ADR Edge, Spring 1999.

How do you deal with emotional issues in multi-party disputes without too much attorney waiting time? What do you do when a defendant refuses to contribute unless it knows what other parties are contributing? Is it possible to wage war and peace at the same time? Document the Settlement – “DO WE HAVE TO?”

Mediation: What’s In It For Litigators“, ADR Edge, Spring 1999.

Mediation’s dozen valuable benefits to litigators, and where mediation will likely go in the next ten years, or maybe tomorrow.