Monday, November 30, 2015


Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments.

In the new movie Spotlight, in which a motion to unseal court records plays a central part, the practice of entering into confidential settlement agreements providing a small amount of compensation to victims of sexual abuse by Catholic priests, is portrayed as a shameful means of allowing the Church to cover up crimes for decades and keep predators at large. The legal system's complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.

It is important, however, to distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.

I have been involved in efforts to protect the confidentiality of settlement negotiations--mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.

While the confidentiality of settlement negotiations generally deserves strong protection, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep facts out of the public view. Confidentiality clauses in settlement agreements are even more problematical than the use of protective orders, because usually judges have no opportunity to oversee their use, and parties are often too willing to agree to them. The situation in Spotlight illustrates one scenario where the routine use of confidentiality clauses may not have served any of the parties' long term interests. Parties and their attorneys should therefore be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.

Saturday, November 14, 2015

SCMA fall conference recap

Congratulations to outgoing president Robyn Weinstein, incoming president Floyd Siegal, conference chair Hass Sadeghi, executive director Anne Sawyer, and all the other volunteers who helped create the Southern California Mediation Association's successful fall conference last weekend. The conference's theme, Conflict Revolution, made clear that our organization is moving well beyond the goal of helping people learn to mediate litigated disputes. Our goal is to change the world!

Ken Cloke
This goal was emphasized not only in panels such as the one described in my previous post that addressed new roles for mediators and mediation, but was also addressed in panels on critical race theory, LGBT rights, and other timely topics. Peter Robinson kicked off the conference with what amounted to a synopsis of an entire course on apology and forgiveness. And Ken Cloke closed the event by expressing the view that global problems from civil war to climate change can only be solved by the application of principles learned by mediators.

It's been my privilege to serve on SCMA's board for the past five years, including as president last year. It's a committed group of idealists filled with positive energy and intent on changing the world, and I have gained a lot from knowing these people.

Sunday, November 8, 2015

Urban Projects

There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers' and the community's interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project.

I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought together developers, community group leaders and an official with the MTA to talk about how mediation might be introduced into the planning and approval process to alleviate the adversarial nature of the current system. It was pointed out that zoning codes are so complex that variances are almost invariably needed, leaving developers at the mercy of changing political winds, as well as at risk of penalties for violations. There was also general agreement that the current CEQA process, which dates back to the 1970's, is in need of reform, if not complete overhaul. It leaves developers and planners after all of the environmental reviews and comments, still at the mercy of one opponent of the project willing to resort to litigation challenging the project's approval on the grounds that some negative environmental impact of the project was not fully considered.

So perhaps structural changes in the law are needed before we can design a more collaborative rather than adversarial type of planning and approval process. Still there was general agreement that even within the current system it is important for planners and developers to work with community groups and property owners early in the design process, so as to gain the community's trust, and to help create projects that will be more beneficial to all of the various competing interests. While it might be too late effectively to mediate disputes among project proponents and opponents after litigation has commenced, there does seem to be a place earlier in the design and planning process for the kinds of facilitated dialogues that mediators are trained to conduct.

Tuesday, November 3, 2015

Bridge of Spies

The new Cold War thriller Bridge of Spies, based on the true story of the prisoner exchange for captured U2 pilot Francis Gary Powers, shows an attorney living up to the highest standards of advocacy as well as negotiating ability. The movie's lawyer-hero, James Donovan (played by Tom Hanks) is first seen as a typical insurance company lawyer making clever legal arguments about whether an accident involving five motorcyclists should be considered a single "incident." Even when doing that, however, Donovan is able to impress by tying those arguments to a higher purpose.

When Donovan is asked to defend accused Russian spy Rudolf Abel, he takes his ethical responsibilities, and his devotion to the Constitution and to his client's interests, as seriously as any lawyer would wish to perform them, and performs to the highest professional standards, despite pressure to compromise those standards for the sake of gaining an advantage in the Cold War game of espionage. Compare James Donovan to the fictional Atticus Finch, an idealistic role model who has served as an inspiration to many lawyers. Both took on hopeless cases, and both strove to uphold the rights of a reviled defendant. But it must be said that although Finch showed courage in exposing the community's racism, his shaming of the jury may not have served his client all that well in the end. We should probably admire the real-life hero Donovan even more, because he took on the defense of a client who was probably not so innocent, and came up with the winning strategy that saved his client's life.

At the same time, like Atticus Finch, Donovan reminds the community of the Constitutional ideals they are supposed to stand for.  At home, Donovan has to endure the disapproval of his neighbors for taking on the defense of a hated spy. But all it takes is a tour of postwar Berlin with our hero to appreciate his viewpoint that upholding the rule of law is the only thing protecting us from descending into the fear, crime and oppression prevalent on the other side of the Iron Curtain.

Not only does Donovan turn out to be a highly skilled trial lawyer, he also shows himself as an effective negotiator. He does that by knowing both the limits and the extent of leverage he had over his adversaries. Donovan also knew his client well enough to understand his value to the Russians, and had built up the kind of trust with his client that enabled him to achieve even greater success in the end.

All in all, a perfect combination of street smarts and idealism. And a perfect combination of knowing what it takes to win, and what it takes to negotiate a mutually beneficial result with one's adversary. Truly an inspiring story.

Saturday, October 31, 2015

Car wars

An ongoing contentious conflict in Los Angeles, that affects every resident, is the conflict between automobile drivers and other users of the city's public spaces. This city, which has been designed in deference to the automobile since the 1920's, is facing new challenges from pedestrian, bicycle and public transit advocates seeking to reclaim a larger share of the city streets. Surprisingly, and without much public attention, this car-centric city has already adopted a new policy giving substantial ground to these advocates.

By a 12-2 vote, the City Council recently adopted what is called the Mobility Plan 2035, which calls, among other things, for putting many city streets on a "road diet" to allow more room for bicycle lanes and sidewalks. A few city streets have already been re-striped to add bike lanes and reduce the number of lanes available for cars. Advocates of the "road diet" approach claim that removing traffic lanes, and improving access to the city's amenities by other means, will improve the quality of life and actually improve traffic flow in many areas. (Some of these arguments are summed up in this LA Times article.) If you accept the premise that traffic is caused by having too many cars trying to use the available street space, then the best way to reduce traffic is to adopt measures aimed at reducing the number of cars. The alternative approach of attempting to accommodate increased traffic by building even more roads, has been shown time and again to encourage greater reliance on cars, and results in even more traffic.

Drivers naturally feel threatened by the new policy of re-allocating scarce road space away from cars. They are skeptical of the argument that they and other drivers will be coaxed out of their cars by these new measures, and they can be expected to fight them vigorously. An organization called Fix the City that claims to represent the public interest (though it has no members) has already filed a CEQA lawsuit attempting to reverse the city's adoption of its new mobility plan.

So this conflict is likely to play out in court, where instead of being able to engage in an orderly process of determining a reasonable allocation of competing uses for public space, the parties will instead be forced to argue about whether the city complied with applicable environmental regulations and statutes.

The conflict will also play out in contentious public meetings, where advocates for motorists, public transportation, bicyclists and pedestrians will see who can shout the loudest. As another LA Times column points out, however, it is only through greater public involvement that all competing concerns can be properly addressed. And public meetings can once in a while provide an opportunity for eloquent voices to be heard, as in the video clip below, where 11 year old Matlock Grossman shames the drivers who curse at him merely for trying to ride his bike to school.

Instead of turning this debate into a legal problem that frames the issues in a way that may not directly address all of the stakeholders' real concerns, or into a zero-sum power struggle in which the demarcation of every inch of pavement is seen as a gain or loss for each side, what is needed is for all participants in this debate to try to better understand one another's perspectives on this important issue of the allocation of public space. We should all be able to do that, since we all find ourselves using a variety of modes of transportation at different times. But if you are viewing the problem of traffic congestion only from behind the windshield of your own car, you might have trouble seeing how you yourself are contributing to the problem, or appreciating how the speed and noise of cars can affect others who are trying to cross the street or use the sidewalks. With a better understanding of other perspectives, we should be able to work together to design solutions that improve everyone's ability to use public spaces. After all, we share a common interest in making the city streets and sidewalks safer, more usable and pleasant places to spend our time.

Monday, October 12, 2015


Tunisia, where the Arab Spring started, is also the first country to emerge from its revolution with a genuine commitment to democracy and the rule of law. This outcome may be attributable in large part to the work of the National Dialogue Quartet, a group composed of four organizations: the General Labor Union; the Tunisian Confederation of Industry, Trade and Handicrafts; the Tunisian Human Rights League; and the Tunisian Order of Lawyers. When Tunisia appeared in danger of falling into civil war, these organizations banded together and persuaded the Islamist and other parties to agree to a framework for negotiations that would lead to a more legitimate and pluralistic government.

The quartet's work illustrates two techniques favored by mediators: (1) acceptance by all of the feuding factions of a set of ground rules, and (2) encouragement of continued dialogue among all of the affected parties to the conflict.

Last week, the Quartet was awarded the Nobel Peace Prize.

Upon learning of the award, the president of the Tunisian Order of Lawyers, Mohamed Fadhel Mahfoudh, stated: "I think this is a message to the world, to all the countries, to all the people that are aiming for democracy and peace, that everything can be solved by dialogue. I also think that it this a message for political parties engaged in political conflicts that everything can be solved with dialogue. Everything can be solved in a peaceful climate. To engage with weapons does not lead anywhere."

New York Times

Wednesday, September 30, 2015

Days of Dialogue

I have had the opportunity recently to act as a facilitatator at a couple of the Days of Dialogue events taking place in Los Angeles this year. Taking a contentious topic--the future of policing--that has been debated around the nation in a confrontational fashion, this program demonstrates another way the issue can be addressed. The program brings together police officers, community leaders, students, and other interested and affected residents of the city to sit around small tables exchanging ideas and experiences related to how policing is and should be conducted.

The organizers of these dialogues have promoted them as a starting point for action and change. And it's certainly legitimate to view the process of listening and trying to understand different perspectives as a first step in helping to craft better policing practices. But the dialogue could also be viewed as an end in itself. The mere fact that people can engage in reflective communication about a divisive issue is what brings about change. By participating in these kinds of dialogues, we have an opportunity to gain some appreciation of the challenges facing police officers. And police officers have an opportunity to gain a better understanding of how they can be viewed sometimes as protectors and sometimes as threats to the community. Biases can be exposed; historical perspectives can be shared. Just by sitting around tables and talking with random people of different views, we may change more attitudes than can happen when opposing factions only shout at and confront each other.

(But see my post on a black lives matter protest I witnessed this summer, where I argued that carefully-staged confrontations can also be effective in changing attitudes. Protest marches may be needed sometimes to call attention to an issue, but constructive dialogue is also needed to help resolve conflict.)

Sunday, September 27, 2015

Blogger vs. WordPress

I recently succumbed to the need to upgrade my main law office website,, to make it look more professional and up-to-date. My law office site was one I created myself more than 10 years ago using the Blogger platform. About 6 years ago, I created this mediation site myself using Blogger. I still have a lot of affection for Blogger, which has a number of advantages going for it. Blogger is free. It is easy to set up and use. Editing posts, and even changing the layout and the template, is simple and intuitive. And the platform is more versatile than people give it credit for, allowing for some fairly sophisticated possibilities.

On the other hand, Google doesn't seem to have taken much interest in recent years in improving the Blogger platform, and, unless Google has some plans I don't know about, Blogger appears in danger of becoming a relic of the past. Most designers, and most owners of commercial websites, have long ago migrated to WordPress. It seemed like the obvious choice for my revamped website.

WordPress's capabilities seem limited only by the designer's imagination. Though it started as a blogging platform, WordPress now allows an enormous variety of content and layouts, while seamlessly integrating the blogging function anywhere the website owner wants to install it. On the other hand, I find that creating new blog posts in WordPress is more cumbersome than Blogger, and making other changes to the website is more complicated. It is much less "what you see is what you get." It is also less "do it yourself." I needed a professional website designer to create the WordPress site I wanted, and I will probably need help going forward in maintaining the site, unlike my Blogger sites, which I've been able to keep updated without any help.

I had to deal with a related dilemma in creating my new site. Should I integrate this mediation blog with my law office website? Or should I maintain this mediation blog as a separate, stand-alone site?

I lean toward the view that a blog and a commercial website are two different things. A blog is an educational and informational platform presenting the author's views on a relatively narrow topic. It can also be used as a diary or creative outlet for the author. A blog therefore should not be too blatantly promotional. A blog's content should be more article-like than advertisement-like. A commercial website, on the other hand, should function as a business's virtual address. It serves as a calling card and promotional tool for the business. It might need a lot of content to inform the public of all of the business's activities, but it doesn't necessarily need a creative or educational diary to perform its functions.

In the law firm world, I notice that while firms are encouraged to create blogs to show off their expertise and enhance their online visibility, not too many firms are very good at keeping up with producing good blogging content. That may be because blogging is a different task from the main website's task of describing the firm's capabilities, and because not all firms can find somebody in the office who likes doing it.

Here is my solution to these personal dilemmas and conflicts. At least for the time being, I plan to maintain this "Conflict Resolution" site ( as my personal platform for sharing ideas on the subject of conflict resolution in general and mediation in particular. For now, this site is going to remain on Blogger because Blogger is so easy to use, and still more of a "pure" blogging platform. Meanwhile my new WordPress site looks up-to-date and flashy. While that site contains occasional blog posts, some cross-posted from here, that will not be the focus of the law office site.

Sometimes to resolve a conflict, like whether you should have pie or ice cream for dessert, you don't have to choose one or the other. You can have both. The only thing you have to decide is whether you want your ice cream on top or on the side.

Thursday, September 17, 2015


My rabbi's Rosh Hashanah sermon this year concerned the important topic of healing the widening rifts in the Jewish community, which have broken out especially over the nuclear weapons deal with Iran. The problem he was talking about is not so much that there is disagreement about the advisability of this deal. Considering how troublesome and untrustworthy an adversary Iran has been, one would expect strong disagreements among supporters of Israel about how we should deal with that adversary.

Such disagreements wouldn't be a particularly new thing among members of the Jewish community. As the rabbi pointed out, ferocious conflicts among factions of the Jewish community have existed from the time Joseph fought with his brothers, and on and on through the ages. The resolution and the continuation of these conflicts have defined and often strengthened the Jewish people. Quoting from the scholar Yehudah Bauer, "quarrels and disputes are the engine that drives [our] culture forward, backward or sideways. That is its elixir of life." Or as the Rabbi said: "Add to the mix the fact that we Jews are by nature and nurture an edgy, argumentative, opinionated, critical, and self-critical lot, and the result is conflict."

The danger does not lie in these endless disagreements; it lies with elements on each side of the debate who question the motives of those with whom they disagree. It lies with those who resort to violence instead of debate. And it lies with those who seek to drive conflicting voices out of the community.

Senator Schumer and Congressman
 Nadler happen to have taken opposite
 positions on the Iran deal.
We don't have to agree all the time to preserve the unity of the community. We do have to treat those with whom we disagree as members of the same team, and recognize that all elements of this large, unruly Jewish community share common interests. Otherwise, we are in danger of losing the things that have defined and preserved the community in the first place.

Monday, September 14, 2015

Openings, part 3

In my last post on the topic of how we initiate conflict resolution, I talked about how lawyers frame disputes in a way that may leave out some of the most important concerns of the parties. But the blame for turning a multi-faceted conflict into a contest over legal issues does not lie solely with narrow-minded or selfish lawyers. The parties also bear some responsibility for viewing their dispute in that way.

Most new or potential clients walk into a lawyer's office looking for vindication. They want to talk about the merits right away. They want to know which side is right, and which side is at fault. Since most clients are pre-disposed to believe they are in the right, they are also hoping the legal system will provide that answer for them. Lawyers are pre-disposed to respond in a supportive way, but we usually qualify our answers to some extent, by making statements such as "based on what you are saying, it certainly looks as though you have some strong claims (or defenses)." The lawyer knows there is probably another side to the story, but what clients take away from such responses is the message that they will win.

On the one hand, lawyers have to be empathetic and encouraging, which is necessary not only as a first step toward conflict resolution, but also to show the client that you will be an effective advocate for the client's interests. On the other hand, lawyers need to give clients sound and dispassionate advice about the weaknesses of their position, as well as the costs of pursuing it.

We need to convey to clients that in most cases, no one is ever going to determine which side is right and which side is in the wrong. Most cases are resolved without getting definitive answers to those questions. We also need to make clear that the outcome of a lawsuit usually cannot be predicted with a high degree of certainty.

At the outset of a case, therefore, lawyers might need to steer the conversation away from a discussion about which side is right, and toward some other important considerations such as how much is at stake, what resources each side has to contest the matter, how strongly each side feels about their position, and what underlying problems might be causing the conflict. The answers to those question will often determine how protracted and difficult resolution of the dispute is going to be.

We ought to start off a representation by focusing more on how to bring the dispute to a satisfactory resolution, which in most cases is going to be by negotiated agreement, instead of trying to answer the hypothetical and often unanswerable question of how the case would be decided by a judge or jury.