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Author Archive

My Favorite Resource Featuring Tom Valenti

Nicole Wilmet, March 1st, 2019

Our series, My Favorite Resource, features interviews with our ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Tom Valenti, an experienced dispute resolution professional and founder of Valenti Law, to learn about his favorite resource.

NW: What is one of your favorite ADR resources?

TV: The resource that I have found most useful over the years is Kluwer Mediation Blog. Kluwer Mediation Blog is a comprehensive source of international articles. It publishes interesting articles from leading practitioners worldwide. Its database of articles is searchable, which makes it an excellent resource.

NW: Why do you value this particular resource?

TV:  As someone who keeps in touch with ADR issues internationally, I find it to be the best resource for me. I set up my account to send me an email when a new article is posted. The articles are published by leading practitioners. This is the beauty of Kluwer. It curates who can publish there, so you are reading reliable and interesting articles. I have found most of them worth reading, saving and cataloging.

NW: How did you first learn about this resource?

TV: As one who uses online research tools, I found the blog through a search engine, and then subscribed after finding it to be of high quality. As it turns out, I know many of the authors now, who are amongst those I look to in our field. For those who subscribe to my newsletters, there is usually an article from Kluwer in them.

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss.

TV: The blog has very useful searching and browsing functions, so if you are looking for something specific, you can browse by category, jurisdiction, date, author, etc., or you can use the general search feature.

If you have a favorite resource that you would like to share in an upcoming edition of our blog or newsletter, please reach out to our Resource Center Director Nicole Wilmet at nwilmet@aboutrsi.org.

New California Law Requires Attorneys to Obtain Consent from Parties Regarding Mediation Confidentiality

Nicole Wilmet, February 27th, 2019

A new California law now requires attorneys to provide written disclosures to and obtain consent from their clients regarding California’s mediation confidentiality restrictions. The new law, effective January 1, 2019, applies to all civil cases except class actions. Under the new law, as soon as reasonably possible before a client agrees to participate in mediation or pre-mediation consultation, attorneys must provide their client with a written disclosure that identifies the confidentiality restrictions related to mediation. These written disclosures must be in at least 12-point font and be printed in the preferred language of the client. Additionally, these disclosures must be a single page document that is not attached to any other document provided to the client and be signed by both the attorney and the client.

The impetus behind this new law is to ensure that clients understand the expansive reach of mediation confidentiality. In California:

  • all communications, negotiations or settlement offers that occur during the course of mediation are confidential;
  • any statements made and writings prepared in connection with a mediation are not admissible as evidence or subject to discovery;
  • mediators may not be compelled to testify in any subsequent civil proceedings about any communication or conduct that occurred during or in connection with a mediation; and
  • a mediator’s report, opinion, recommendation, or finding about what occurred during the mediation may not be considered by a court.

In addition to improving understanding by requiring written disclosures, California’s new law is also a step by the legislature to address a policy concern identified by California courts regarding mediation confidentiality and attorney disciplinary action. See Cassel v. Superior Court, 51 Cal. 4th 113 (2011)(in which the Court held that a party was barred from disclosing private attorney communications, that were made during the course of a mediation, as evidence in his attorney malpractice suit).

In response to Cassel, in 2012 the California Legislature passed a resolution that directed the California Law Revision Commission (“CLRC”) to evaluate the relationship between mediation confidentiality and attorney malpractice. In 2017, after five years of studying the issue, the CLRC released its recommendation which encouraged creating an exception that would allow attorneys to be held accountable for mediation misconduct. Ultimately, the final language adopted by California’s new law permits the disclosure of communication in an attorney disciplinary proceeding to prove attorney compliance with written disclosures only if the communication does not disclose anything said or done during the mediation.

Welcome Alyson Carrel to RSI’s Board of Directors!

Nicole Wilmet, February 26th, 2019

RSI is proud to introduce Alyson Carrel, Clinical Associate Professor and Assistant Director of Northwestern Pritzker School of Law’s Center on Negotiation and Mediation and Assistant Dean of Law and Technology Initiatives onto our Board of Directors. Ms. Carrel is an active leader, presenter, and trainer in dispute resolution. She currently teaches Negotiation, Mediation Process and Advocacy, Dispute Resolution and a clinical course in Mediation Advocacy.

Since 1993, she has been exploring the process of mediation and how it can benefit under-represented populations and enhance access to justice. Prior to her appointment at Northwestern Law, Ms. Carrel was the Training Director at the Center for Conflict Resolution, one of the nation’s largest and longest-running community mediation centers, where she directed and lectured in the 40-hour mediation skills training and mediated court-referred cases.

RSI is proud to have Ms. Carrel join our Board and we hope you will join us in welcoming her to our organization!

My Favorite Resource Featuring Sally Campbell

Nicole Wilmet, January 30th, 2019

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Sally Campbell, Dispute Resolution Services Manager for the Supreme Court of Virginia, to learn about her favorite resource. 

NW: What is one of your favorite ADR resources? 

SC: Aside from RSI, always a favorite resource, my favorite ADR resource tends to be what is helping me most at the moment. Appellate Mediation: A Guidebook for Attorneys and Mediators, an ABA publication written by experienced appellate mediators Brendon Ishikawa and Dana Curtis, tops my list right now.   

NW: Why do you value this particular resource? 

SC: Appellate Mediation contains a wealth of information for any mediator, whether newly minted or appellate veteran. I still marvel at this book’s promotion of a facilitative process with a client-centered, problem-solving approach – not what I expected when I first opened it. The book divides into five sections. The first, “Fundamentals of Appeals,” tackles appellate law basics, case evaluation, and decision tree risk analysis for case evaluation. The second, “The Appellate Mediation Process,” covers each phase of the mediation, with headings varying from “Explanation of the roles of the Mediator and Participants” and “People Get Angry; It’s Okay,” to “Brainstorm for as Many Options as Possible – Especially Options with Asymmetric Gains.” The “Practice Tips for Appellate Attorneys” section focuses on preparing attorneys and clients for mediation; strategies for the sessions; and crafting an enforceable agreement. “Practice Tips for Appellate Mediators” delivers excellent, detailed guidance for mediators.   

Finally, the Appendix packs a punch with great resources for appellate mediators, like sample phone call dialogue and sample documents. Appellate Mediation is eminently accessible with a user-friendly design that makes it easy to find specific information. The authors even include a chapter on mediator professional development. That chapter’s attention to the reflective practice process generated an a-ha! moment, and facilitated our goal to design the Mediator Self-Reflection Treasury to guide and support mediators even in solitary, first-time self-reflection.  

NW: How did you first learn about this resource?  

SC: In 2018, the Supreme Court of Virginia approved appellate mediation pilot projects to run for two years in the Supreme Court and the Court of Appeals of Virginia. I found this book while looking for resources to assist in the training of appellate mediators. It fit the bill so well that the trainer used it in the basic mediation course.  

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss?  

SC: For newer, non-appellate mediators, I would recommend Chapter 14 (“Phase 2, Information Exchange, and Phase 3, Identifying and Organizing the Issues”), although there is so much to be gleaned elsewhere in the book, I wouldn’t stop there. For seasoned mediators, I’d recommend Chapters 2 and 3, that address case evaluation as in “What is my best presently available option?” and case valuation through decision tree analysis. In this well-written, accessible book, these chapter materials aren’t nearly as daunting as they sound.     

This book might top my list for a long time to come. 

If you have a favorite resource you would like to share in an upcoming edition of our newsletter and our blog, please reach out to our Resource Center Director Nicole Wilmet at nwilmet@aboutrsi.org. 

Connecticut Launches Online Dispute Resolution Program

Nicole Wilmet, January 29th, 2019

This month, Connecticut launched an online dispute resolution pilot program to resolve contract collection cases in the Hartford and New Haven Judicial Districts. This article reports that participation in the program is voluntary and that either party may opt-out of participating within 15 days of referral to the program. In both the notices to plaintiffs and defendants, the court notes that by participating in the program, both parties agree to give up their right to: a jury trial, file an appeal from the court’s decision, and to object to evidence presented by the either party.  

Plaintiffs wishing to participate in the ODR program must include an Online Dispute Resolution Answer Form and an Online Dispute Resolution Notice to Defendant with their complaint. Should both parties agree to participate in the program, the court will then give each side deadlines to exchange evidence and file evidence with the court. The court notes that examples of evidence in these cases include receipts, repair orders, warranties, cancelled checks, etc. Next, parties will be scheduled for a mediation session with a court mediator by video, telephone conference or in person. In the event that the parties are unable to reach an agreement, the court decides the case based on the papers that both parties have filed.  

Additional information about Connecticut’s new ODR program may be found on the court’s site or by emailing ODR@jud.ct.gov