Alternative Dispute Resolution Issue - Contra Costa County Bar ...

Question manWhat is the most creative solutionyou have been part of during a mediation?The most creative solution as a mediator ina team mediation at the workplace involvedthe agreement written on the large whiteboard paper, each section drafted in a differentmarker color and signed byeach participant. They then agreedto frame it and put it up in their breakroom as a daily reminder of theirwritten commitments to each other.Jessica A. BravermanBraverman Mediation & ConsultingAfter a contentious several hours, with theparties $100,000 apart, Tim Halloran(Murphy, Pearson, Bradley & Feeney) askedmy client to tell her version of the story.She spoke for 30 minutes. He listenedwithout interruption, then suggested webreak for lunch. The client kept repeating,“he listened to me, he listened to me.” Atthe end of lunch, she said, “time to get onwith my life and leave this ugliness behind.”So she went in, accepted the offer,went home happy, and keeps tellingall of her friends that I am a greatlawyer. Thanks Tim.Jerome FishkinFishkin & Slatter, LLPThe most creative solution I’ve experiencedduring a mediation was when my clientsaid he was sorry. It was the first timeanyone in the process had apologized tothe plaintiff. I felt like I was going outon a limb in doing so, but it got uspast a sticking point that money couldnot address.Joseph M. NykodymRyan & LifterA method I’ve been using for years whenit finally gets down to the equalizing paymentor some other lump sum dollaramount: Each side puts their absolute bestposition in an envelope and seals it. Aneutral third party (not the mediator) isengaged to open the envelopes. If the twopositions are within, say, 10% of each other,the difference is split and thatbecomes the settled amount.If they are not within the 10%range, the neutral destroysthe offers and no one (noteven the mediator) knowswhat the bottom lines were.Donal Casey CumminsCummins, Holmes & GeraldiIn a mediation involving anun fair business practices claim,the defendant requested a broadscope anti-disparagement provision.Plaintiff refused. Inexploring the matter further,defendant expressed a concern aboutnegative comments that could be posted onthe internet (blogs, yelp, etc.). A compromisewas reached. The plaintiff agreed not to poston the internet any negative commentsconcerning defendant either by plaintiffhimself or by others at the plaintiff’s directionor request. This limited scope antidisparagementprovision satisfied thedefendant’s need and a resolution followed.John S. WarnlofSolo, Walnut CreekIn an estate battle, three children disagreedabout who would get their deceased father’sBuddha statue. Finally one of them suggestedthat they take turns, each havingpossession for one year. They got excitedabout seeing each other to “pass the Buddha.”Simple, yet elegant.Tom CainLaw Office of Thomas W. CainArlene SegalLaw Offices of Arlene SegalLitigation - MediationTrust and Estate Disputes • Financial Abuse100 Pringle Avenue, Suite 780 • Walnut Creek, CA 94596telephone (925) 937-4224 • fax (925) 937-4273— Wanted —ConservatorshipsthinkMatt Tothas inPedder, Hesseltine,Walker & Toth, LLPoldest partnership in Contra Costa County(52 years)p 925.283-6816 • f 925.283-36833445 Golden Gate Way, P.O. Box 479Lafayette, CA 94549-0479AV Martindale-Hubbell16 November 2009