Alternative Dispute Resolution

A guide to dispute resolution from many of Southern California’s premier neutrals

Joan Kessler
2016 August

My interest in conflict resolution began over 40 years ago, when I became a Communication professor and jury consultant after receiving my Ph.D. from the University of Michigan. I taught conflict resolution, interpersonal communication, intercultural communication courses, and I even taught communication issues to law students, lawyers and law enforcement officers. That led to law school and 30 years of being a lawyer. I work full-time as a mediator and arbitrator and have been working in that field for about 10 years.

Over the past 10 years as associate editor for the annual ADR issue of Advocate Magazine, I have enjoyed collecting and editing some very interesting articles. I think you will find this year’s ADR issue to be an innovative and informative collection of useful ideas by experts in the field.

My own article, “Ten years as Advocate ADR editor: A wonderful run at the tables!” discusses my time as associate editor for this annual issue and changes in the litigation areas over these years.

Eleanor Barr is a long time, well respected mediator. In her article “Neuroscience and negotiation: how to achieve optimal results for you and your client,” she asks what can neuroscience teach litigators and negotiators? Barr states that it can show us that our state of mind changes often, particularly under pressure, and that we will be able to perform better when we become more aware of our own – and others’ – changing mind states. In this article, she looks at examples of how neuroscience can help us develop new neural connections to respond more effectively in our negotiations.

Daniel Ben-Zvi and Caroline Vincent are well regarded mediators and arbitrators at ADR Services, Inc. In their article “Duels to handshakes,” they inspire attorneys to be open minded to diverse possibilities that arise in mediation to achieve best outcomes. The topic is explored in the context of the evolvement of mediation as an informal consensual process, as opposed to a rigid form of dispute resolution. Topics covered are preparation, setting the stage, preparing the client, use of different types of meetings with participants, creative remedies, breaking impasse, and unique techniques in more complex cases.

Honorable Jacqueline A. Connor is a retired judge, and highly regarded mediator and arbitrator at ADR Services, Inc. In her article “Eight rules at winning mediation,” she discusses how handling mediations is not something that most of us are trained in, and mistakes can make or break your chances of getting the best result for your client. What messages are you sending? What are you telegraphing about your commitment to your case? Have you handicapped the process or have you put yourself out in front? The “rules” are simple, but too few follow them. The fixes are easy. There are no excuses, just choices, per Judge Conner.

Mark Fingerman and Ralph O. Williams III are highly regarded mediators at ADR Services, Inc. Their article “Use mindfulness to do better at mediation” addresses how the settlement value of a case is ultimately a decision made by the person paying. You can get better results using mindfulness to effect that decision by noticing, preparing for and then addressing the factors that drive value for and what matters to the person paying.

Jason Harper is a well respected mediator and incoming President of the Southern California Mediation Association (SCMA). In his article “Right IDEA, wrong time: The case for a more proactive approach to special education,” he discusses how the relationships between the parents of children with special needs and school districts have become more contentious over the years. This article evaluates the conflict resolution strategies currently in place and proposes how a mediator can transform the conflict between a family and school district over children receiving special education services.

Leonard S. Levy is an experienced and well-known mediator who is at ADR Services, Inc. In his article “Mass tort mediation: Planning for effective client representation,” he explains how mediation of mass tort claims requires preparation and anticipation of dynamics not always present in the mediation of less complex matters. This article reveals what to expect, as well as suggested strategies and important considerations in planning to achieve optimum results in the mediation of mass-tort claims.

Cynthia Pasternak is a long-time mediator who is at ADR Services, Inc. In her article “Mediating a minor’s personal injury claim,” Cynthia discusses how California requires a greater degree of care to protect the rights of minor children who sustain personal injuries. Mediation is an excellent alternative for settling such claims if the mediator and attorneys know the proper strategies and procedures, says Ms. Pasternak.

Phyllis G. Pollack is a well-known lemon law mediator and researcher in the ADR area. In her article “Mediation confidentiality; is it alive and well in California?” she gives an update on two interesting developments regarding mediation confidentiality in the past year. The first occurred within the California Law Revision Commission (“CLRC”). The second occurred within the Ninth Circuit Court of Appeals.

Alex S. Polsky is a pioneer mediator and arbitrator at JAMS. In his article “Arbitration – A lawyer’s tool,” he explores how arbitration is an ideal forum for certain cases, but not others that may be better suited to mediation or trial. Attorneys should carefully consider a number of factors when deciding whether or not to arbitrate, as making seemingly insignificant choices early on can greatly affect the outcome of a case and the experience of the parties involved. This article weighs those considerations and offers tips on the arbitration process, from selecting a neutral to presenting evidence to approaching the closing argument.

Retired Los Angeles Superior Court Judge Charles “Skip” Rubin is a former state and federal litigator and judge. Judge Rubin retired in 2006 and has since been a mediator and arbitrator at Alternate Resolution Centers (ARC). His article, “Finding a competent mediator or arbitrator,” reveals that a mediation or arbitration is only as good as the neutral conducting it. He discusses ways to find an excellent mediator or arbitrator.

Jan Frankel Schau is a highly experienced mediator and arbitrator at ADR Services, Inc. In her article “Pushing past impasse in mediation: a mediator’s guide to getting a stalled negotiation back on track,” Ms. Schau discusses that while attorneys have come to expect “outrageous” and “insulting” first offers in mediation, there are some cases that get stalled early on and fail to progress to meaningful negotiation for a variety of reasons. She provides insight into several psychological barriers that, when uncovered and evaluated, can clear the path towards settlement. These are founded upon business and economic principles of persuasion and can be invaluable tools to breaking an impasse.

Jill Switzer is a well-regarded mediator at Alternative Resolution Centers (ARC). In her article “Where goes the camel’s nose?” she discusses that while the mediation community was able to beat back the California Law Revision Commission’s proposal to eliminate mediation confidentiality for attorney mediators in malpractice and discipline actions, attorney advocates are still in the Commission’s sight, and it doesn’t look like its gaze will be averted.

Marco Turk is a well-regarded mediator and arbitrator at Alternative Resolution Centers (ARC). His article, “Mediator ethics: Self-determination conundrum,” discusses balancing right of party self-determination with achieving satisfactory settlement. He asks: Does a mediator seek to “make the deal” or ensure that parties decide for themselves even if the mediation does not result in settlement? What should be the mediator’s style, and when does it require deference to party self-determination?

Mike Young is a highly experienced mediator at Judicate West. In his article “Buying respect…and other below the line settlement tricks,” he illustrates how creative thinking by parties, lawyers, and mediator alike is often the key not just to the resolution of a pending lawsuit, but to a more satisfying, lasting, even healing peace.

Joan Kessler Joan Kessler

Joan Kessler, a full-time mediator and arbitrator, received her Ph.D. in Communication before she attended law school. She was a jury consultant, Communications Professor and has practiced law for 30 years. Many of the communication strategies she taught and her extensive experience as a litigator enhance her mediation and arbitration practice. She specializes in employment, real estate, trust/estate, business, commercial, entertainment, and insurance cases. Email Ms. Kessler at jkessler@kesslerandkessler.com. Ms. Kessler is on the American Arbitration Association (AAA) panel of arbitrators and mediators, the United States District Court panel of mediators and she mediates independently and arbitrates through AAA. See www.joanbkessler.com.

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