Articles on Mediation, ADR
and Conflict Resolution

for Mediators and Mediation Advocates and Participants
 


"Mediation Impasse: Reality Or Fallacy?"
Published in Advocate Magazine in September 2014 (By Lee Jay Berman)
It happened again. You drove with your client to the mediator’s offices, you spent 10 hours in a mediation session- often waiting for long stretches for the mediator to return from the other room, your client went through the entire range of emotions during the day, and gave and gave until they had reached beyond any “bottom line” the two of you had established, and still the case didn’t settle. Now you have that long, tedious drive back to the office with a client who is frustrated, disappointed, wrung out, maybe even angry. During the silence you know that somehow your client is blaming you. Approx. reading time: 15 minutes. **Also available in PDF.

"Band Whisperer' Explains How To Keep Your Band Together"
Published in Music Connection in January 2014 (By Lee Jay Berman)
KEEPING THE BAND TOGETHER… As every musician knows, this can sometimes be tougher than a two-dollar steak. Fragile egos, clashing visions and money challenges can all put a strain on any band. To find out what can be done to help artists and bands navigate these turbulent waters, professional voice coach Lisa Popeil sat down for a chat with an expert on the subject. He's Lee Jay Berman, a mediator based in Los Angeles who specializes in mediating partnership issues in the music and entertainment business. Known as the "Band Whisperer," Berman gets to the heart of matter. Approx. reading time: 10 minutes. **Also available in PDF.

"Mediation's Evolution In SoCal:
Where It Has Been And Where It Is Going"

Published in Advocate Magazine in September 2012 (By Lee Jay Berman)
Mediation today is being done very differently than it was just five or ten years ago, and it has changed dramatically since 1995, when it was first introduced into California's general civil litigation world. This means that in order to successfully represent clients in mediation, advocates have to adapt, too. What worked just a few years ago, doesn't necessarily work today. Approx. reading time: 16 minutes. **Also available in PDF.


"The Funnel Of Conflict Resolution - Part One:
The Stages Of Conflict And Opportunities For Resolution"

Published by Mediate.com in February 2011 (By Lee Jay Berman)
The world of conflict can act like a funnel, in that disputes can enter from any of a variety of areas of life and can take all forms (arguments, disputes, accidents, cultural trends). As a society, and as a mediation community, we can address these disputes at many different stages. Early intervention of conflict resolution requires that either those people in dispute are aware of mediation, or that mediators can find them early in their process. The best way to reach people early in the dispute is through generalized public education about mediation, increasing public awareness, and making it generally accessible and available to them. This can best be done in schools, as we try to teach youngsters about conflict resolution. It can also be approached through public policy measures, promoting and funding dispute resolution centers. Approx. reading time: 6 minutes. **Also available in PDF.

"12 Ways To Make Your Mediator Work Harder For You"
Published in Advocate Magazine in October 2009 (By Lee Jay Berman)
The biggest mistake most attorneys make is not getting all of the value that the mediator has to offer, and for which their client is paying. Many attorneys won’t let the mediator get a word in edgewise, tie their hands with respect to what they can reveal and discuss in the other room, and only want to talk numbers with them after lunchtime. Then they complain that the mediator is overpaid. Most attorneys never get to see all of the skills a mediator has because they never make the mediator work hard enough to need to for their mediator to utilize those skills. Here are 12 ways to make your mediator work harder for you. If you take advantage of every one of them, you will get much more out of your mediators, your mediations, and your settlements. Approx. reading time: 7 minutes. **Also available in PDF.

"It's Time For Heavy Metal Mediation"
Published in the Daily Journal in October 2008 (By Lee Jay Berman)
KISS Mediators Rock the ABA Conference: Many attendees at the recent annual conference of the Section on Dispute Resolution had to look twice when they saw one of the characters pictured here walking the conference halls. When most learned that these were actually colleagues - the question was the same: Why would these self-respecting mediation professionals play dress up? Approx. reading time: Approximately 11 minutes.**Also available in PDF.

"Impasse Is A Fallacy"
Published in the "Mediation Strategies", A column for the Daily Journal, California's legal newspaper. February 2006 (By Lee Jay Berman)
I often wonder who invented the concept of impasse. Who first said, "We are stuck. We cannot go any further."? And who decided that we should give it a name, acknowledge its existence, and make it the scapegoat for all that goes wrong with a mediation? Approx. reading time: Less than 8 minutes.**Also available in PDF.

"Neutrals Reveal Tips With Their Opening Statements"
Published in Daily Journal Magazine in January 2004 (By Lee Jay Berman)
Most mediations begin with the mediator's opening statement, much to the consternation of the lawyers (many of whom have heard them many times before) and their parties. Although most lawyers prefer to launch right into their opening statements in a mediation, the mediator's speech can be very helpful. Approx. reading time: 4 minutes.**Also available in PDF.

"Choose Carefully - All Mediators Are Not Created Equal"
Published in Daily Journal Magazine in September 2002 (By Lee Jay Berman)
If a mediation is going to have a chance at success, perhaps the most important decision is who will sit in the neutral chair at the head of the table. From case to case, that decision will vary. Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right mediator for each case ... here are 14 tips on the best ways to select the right mediator and increase your chances for a successful mediation... Approx. reading time: 7 minutes.**Also available in PDF.

"Lawyer Preparation For Mediation Puts Money In Clients' Pockets"
Published by Mediate.com in September 2008 (By Lee Jay Berman)
While all good attorneys prepare intensely for arbitration or trial, it is a wonder that more fail to prepare better for mediation. As the legal community continues to use mediation as an effective case settlement tool, it is becoming clear that attorney preparation plays a vital role in achieving a favorable result. Whether dealing with hundreds of thousands or millions of dollars, shooting from the hip is too risky... Approx. reading time: 4 minutes. **Also available in PDF.

"Mediators' Opening Statements Offer Insights For Successful Results"
Published in the "Mediation Strategies", A column for the Daily Journal, California's legal newspaper. December 2003 (By Lee Jay Berman)
There is much that can be learned from a mediator’s opening – about the process, about that mediator, and about how to maximize your outcome. ... remember that aside from simply setting the tone and laying down any ground rules, the mediator is providing tips and insights into how to maximize your success in that mediation, leaving your clients satisfied with their representation and their result... Approx. reading time: 4 minutes.**Also available in PDF.

"The Advocates' Opening: Getting More For A Client In Mediation Starts With The Opening Statement"
Published in the "Mediation Strategies", A column for the Daily Journal, California's legal newspaper. February 2006 (By Lee Jay Berman)
There is a bright line differentiating client advocacy in mediation from other forms of client advocacy. Good lawyers know the difference and are getting much better results from mediations than those who do not make this important distinction. As the legal community evolves in the effective use of mediation as a case settlement tool, it is becoming clear that attorneys’ opening statements in a joint session play a vital role in their client’s success in that mediation... Approx. reading time: 4 minutes.**Also available in PDF.

"Recession Advice For Mediators"
Published in the American Bar Association Section on Just Resolutions January 2009 (By Lee Jay Berman)
While many believe that mediation is a recession-proof business, the truth is that a difficult economy slows every business and practice as people have less money to pay for things. When a mediation practice slows, there are three things that mediators can do to make productive use of increased down time. They can increase their marketing efforts (attend more networking events, update websites, etc.), improve or update the administrative infrastructure of their practices, and they can hone their skills. Approx. reading time: 7 minutes.**Also available in PDF.

"How To Initiate Or Improve A Court Mediation Program"
Published in the American Bar Association Section on Dispute Resolution's Just Resolutions September 2008 (By Lee Jay Berman)
Question: We don't have a mediation program in our courts, and I keep hearing from people in other states what a great boost it is for mediation as a whole. How can we work with our local courts to interest them in starting (and paying for) a court-annexed civil mediation program? Answer: Taking your challenge even broader, and including those jurisdictions that already have court-annexed mediation programs in place that may not be functioning to the level everyone would like, let's talk about courts and mediation. Approx. reading time: 12 minutes.**Also available in PDF.

"Getting Traction For Mediation"
Published in the American Bar Association Section on Dispute Resolution's Just Resolutions July 2008 (By Lee Jay Berman)
Question: I'm a mediator in a county where mediation hasn't been accepted or supported by our local court, and the lawyers don't seem interested in mediating cases. What can we do, perhaps through our local Bar ADR section, to help mediation gain some traction? Answer: Get ready to go to work! There are many things you can do, and frankly, the faster you and your local community of mediators implement them, the faster mediation will take hold... Approx. reading time: 6 minutes.**Also available in PDF.

"L.A. Mediator’s Online Show Picked Up By Radio Network"
Published in the American Bar Association Journal in July 2008 (By Debra Cassens Weiss)
The online show of Los Angeles mediator Lee Jay Berman has been picked up by the American General Media radio network. The show is called “Talk It Over,” and offers advice on conflict resolution and commentary on news items... Approx. reading time: 1 minute.**Also available in PDF.

"Aiming For Mainstream" [PDF]
Published in the Daily Journal July 2008, Reprinted with Permission (By Greg Katz)
If you need further proof of mediation burrowing its way into mainstream culture, just turn your radio dial. On Sunday [July 13, 2008], Los Angeles mediator Lee Jay Berman's program, Talk It Over ... crossed over to the airwaves of the American General Media radio network... Approx. reading time: 3 minutes.**Also available in PDF.

"Is Mediation A Pipe Dream?"
Published in the American Bar Association Section on Dispute Resolution's Just Resolutions December 2007 (By Lee Jay Berman)
In many ways, mediation is like any other profession or business, where some do well, some fail, and the rest are somewhere in between. But in many ways, mediation is unlike other professions because... Approx. reading time: 7 minutes. **Also available in PDF on the ABA Website.

"Law School? Who Needs It? Not This Mediator"
Published in the Daily Journal, December 1, 2006 (By Emma Dewald)
Lee Jay Berman is not a lawyer. Never has been. But he is a mediator, and most years he revolves from 75 to 90 disputes. James L. Wraith, a name partner at Oakland law firm Selvin Wraith Halman, was a little hesitant to use a mediator who had never been to law school. After Berman mediated one of his cases, however, Wraith decided that it was not an issue ... In fact, Wraith suggested that Berman's lack of traditional legal background might stand him good stead... Approx. reading time: 8 minutes. **Also available in pdf.

"Peace Talks: Mediation Can Be Speedy, Inexpensive Way To Resolve Disputes"
Published in Residential Architect Magazine, May 1, 2006 (By Cheryl Weber)
Architects who've never been involved in a professional liability claim should count themselves lucky—and knock on wood. Those who have know how quickly a lawsuit can turn ugly. Litigation typically takes on a life of its own, consuming the feuding parties emotionally and financially. And in the end, the winners often find that the settlement amount wasn't worth the disruption to them and their families. Approx. reading time: Approximately 8 minutes. **Also available in pdf.

"Exporting The Wisdom Of Mediation" (Lee Jay teaches mediation to judges in Delhi, India)
Published in the Daily Journal, November 8, 2005 (By Eron Ben-Yehuda)
Los Angeles neutral Lee Jay Berman recently returned from India with a bronze statute of Buddha, a symbol of knowledge. The gift came from judges in the country's capital, Delhi, in gratitude for Berman and two others in a delegation sent to share their wisdom on the art of mediation... Approx. reading time: Less than 4 minutes. **Also available in pdf.

"Make Or Break: Using Structured Settlements In Mediation"
Published in the Daily Journal, April 18, 2005 (By Eron Ben-Yehuda)
Twin girls needed a heart procedure soon after their premature births, but when the nurse inserted a tube into one of the infants to take an X-ray, the nurse went too far and pierced the child's heart. "Technically, the heart was flooded, and the baby suffocated," Los Angeles mediator Lee Jay Berman says. "Literally, the baby drowned to death." Berman mediated the subsequent medical-malpractice case brought by the mother against the hospital... Approx. reading time: 8 minutes. **Also available in pdf.

"13 Tools For Resolving Conflict In The Workplace, With Customers And In Life"
Published in Brilliant Results Magazine, December 2004 (By Lee Jay Berman)
Conflict happens. It is inevitable. It is going to happen whenever you have people with different expectations. This makes conflict management critical, whether avoiding arguments, disputes, lasting conflict or ultimately, litigation. Conflict can be avoided if steps are taken early in a discussion to diffuse anger and facilitate communication, and it can be resolved by applying a series of thoughtfully applied steps... Approx. reading time: 12 minutes. **Also available in pdf.

"Most Real Estate Squabbles Settled Through Mediation"
Published in the L.A. Daily News, September 4, 2004 (By Gregory J. Wilcox)
Some real estate transactions, like relationships, end badly. Buyers discover problems with the house they paid a fortune for and become furious with the seller. Name-calling ensues. Phones ring, lawyers answer. These disputes follow a typical path, though, and the first stop is not a lawyer's office... Approx. reading time: Less than 2 minutes. **Also available in pdf.

"Selling Your Case A Different Way: Effective Mediation Calls For Advocacy Skills, Even If They're Not The Kind Litigators Use In Court"
Published in the ABA Journal, June 2003 (By Mark Hansen)
...In litigation, says Los Angeles mediator Lee Jay Berman, opposing counsel is typically viewed as the enemy, the parties have an incentive to play "hide the ball" with evidence and an adversarial posture pervades the entire process, from the first telephone contact to the actual trial. But in mediation, the most effective advocates are deferential to the other side, says Berman ... Berman says ... everybody at the table is looking for something, and that somebody else at the table has it. "In mediation, the goal is to get what you want directly from the other side," he says. " ... Settlements in mediation often leave parties to legal disputes more satisfied with the results than the outcomes they might have achieved in litigation, maintains Berman. "The parties may say they want their day in court," he says, "but when all is said and done, what they really want is their day in mediation." Approx. reading time: 9 minutes. **Also available in pdf.

"Voluntariness In Mediation: An Historical Perspective!"
Published in the Southern California Mediation Assosciation News, February 2003 (By Lee Jay Berman)
A dispute resolution process is either voluntary or it is not. There are many forms of ADR that are designed to be mandated. Mediation, by definition however, is voluntary. Mediation has been around in family law and community programs for over twenty years, and it has been performed by elders in villages throughout the world for thousands of years. Sometime during the mid- to late-1990's, the courts agreed that mediation might be an effective tool for settling general civil cases... Approx. reading time: 8 minutes. **Also available in pdf.

"Writing Effective Case Management Orders In Construction Defect Cases"
Published in Daily Journal Magazine in February 2001 (By Lee Jay Berman)
Describes Case Management Orders (CMO's) and how they can be used in complex litigation, especially in the construction defect arena. Describes effective ways to negotiate a CMO, contains tips on language to use and to avoid, and describes how to keep control of your own litigation. Approx. reading time: 7 minutes. **Also available in pdf.

"Hands Off Mediation Confidentiality!"
Published in Los Angeles Lawyer Magazine in February 2006 (By Lee Jay Berman)
We mediators fought hard for confidentiality in the mediation process. Now, citing public safety concerns, national politicians are trying to take that away. They claim that settlements reached in mediation need to be opened up for the public to see. In truth, all the public agencies need to know is that a complaint has been filed. Existing laws require them to investigate such reports after only a couple of complaints. Mediation will not be effective if its confidentiality protections are stripped away. Read more to find out why. Approx. reading time 6 minutes. **Also available in pdf.

"ADR Confidential"
Published in Daily Journal Magazine (By Lee Jay Berman)
Why is it important that mediation be confidential? This article delves into the difference between confidentiality and privacy. Insurance companies and others are anxious to know the outcomes of confidential mediations, but this may come at the risk of our personal and corporate privacy. Approx. reading time: 10 minutes. **Also available in pdf.

"Avoiding Workplace Litigation"
Published in Los Angeles Business Journal in September 1996 (By Lee Jay Berman)
Here are practical steps a company can take to handle disputes, from small workplace conflicts to litigated employment law matters, in their earliest stages. This plan is a graduated dispute resolution program companies can incorporate into their internal policies and employment manuals that deals with problems before they become escalated and emotionally charged. Approx. reading time 3 minutes. **Also available in pdf.

"Please Mister, Don't Sue Me!"
Published in Los Angeles Business Journal in August 1995 (By Lee Jay Berman)
Article about the state of the legal system, and why so many cases are settled prior to trial. Explains why a mediation creates a finite, facilitated settlement event that brings cases to resolution and closure. Describes mediation and when mediation should be used. It contrasts mediation and arbitration, and talks about the binding nature of each. Approx. reading time: 3 minutes. **Also available in pdf.

"Sue First, Ask Questions Later!"
Article about the state of the legal system, and why so many cases are settled prior to trial. Explains why a mediation creates a finite, facilitated settlement event that brings cases to resolution and closure. Approx. reading time: 2 minutes. **Also available in pdf.

"What About Mediator Credentialing?"
Published in California Dispute Resolution Council News Magazine in March 2003 (By Lee Jay Berman)
Reviews the ongoing issue of Mediator Credentialing in California in the wake of the unsuccessful legislation proposed in 1996-97. Talks about what might be acceptable to all stakeholders. Approx. reading time: 90 seconds. **Also available in pdf.

"CADRe Shows Measurable Results!"
Published in Santa Barbara Lawyer Magazine in April 2000 (By Lee Jay Berman)
Lee Jay Berman, founder and inaugural Director, tells about the success of the CADRe Program in the Santa Barbara Superior Courts, measured by its 65% early resolution rate. This article additionally looks at the disparity between the "Limited" mediation program (under $50,000, mediators paid a stipend by the court) and its 60% resolution rate, and the "CADRe" program (over $50,000, mediators paid by the parties) and its 70% resolution rate. Approx. reading time: 3 minutes. **Also available in pdf.

"CADRe Is User Friendly!"
Published in Santa Barbara Lawyer Magazine in November 1999 (By Lee Jay Berman)
A basic, fundamental description of Santa Barbara Superior Court's Court Administered Dispute Resolution (CADRe) Program. How the program works, and how to use the website for "user friendly" access to picking a mediator and printing forms. Approx. reading time: 1 minute. **Also available in pdf.

"Unified Superior Court Launches Court Administered Dispute Resolution (CADRe) Program"
Published in Santa Barbara Lawyer Magazine in August 1999 (By Lee Jay Berman)
The Santa Barbara Unified Superior Court has officially launched a new and innovative program that is designed to increase dispute resolution options for litigating parties and lower their costs. CADRe (Court Administered Dispute Resolution) offers litigants early settlement options, including mediation, neutral evaluation, and binding arbitration. **Also available in pdf.


Mediation Briefs
Below is a series of short columns that were published by the Santa Monica Business Journal. Each deals with a different application of mediation.

"Mediating A Real Termination Case"
Published in Santa Monica Business Journal in January 1996 (By Lee Jay Berman)
This article from the "Once Upon a Time" series illustrates how mediation facilitated the successful and clean termination of an employee and avoided a lawsuit. In this case, the young man wore a tie from the store's inventory and was terminated for "misappropriation of company assets". Approximate reading time less than 2 minutes. **Also available in pdf.

"Creative Resolution For Independent Contractor"
Published in Santa Monica Business Journal in February 1996 (By Lee Jay Berman)
Second in a series called "Once Upon a Time", this is a true story about an Independent Contractor who made a deal to market a computer game on behalf of the software company that designed it. He did so, and was not paid. In fact, the company went bankrupt. In resolving this case, the mediator had to get really creative! Approximate reading time 1 minute. **Also available in pdf.

"Using Mediation To Best Resolve Things"
Published in Santa Monica Business Journal in March 1996 (By Lee Jay Berman)
Describes how divorcing couples can save money. Also offers different methods of handling divorce in a mediated setting, including co-mediation with one mediator of each gender, ideally where one has legal training and the other has mental health training (like a counselor). Approx. reading time: 1 minute. **Also available in pdf.

"Who Wins When A Child Dies?"
Published in Santa Monica Business Journal in April 1996 (By Lee Jay Berman)
From the "Once Upon a Time" series, this case deals with the death of a high school student in a traffic accident, but is one of the best, and most emotional, examples of the importance of a creative mediator when trying to resolve a dispute where nobody is happy. Approximate reading time 1 minute. **Also available in pdf.

"The Orange Story"
Published in Santa Monica Business Journal in May 1996 (By Lee Jay Berman)
Another in the "Once Upon a Time" series, this matter involves a parent dealing with a dispute between two children. However, you don't have to look too deep into it to see the analogy to a manager dealing with a dispute between two employees. Asking questions and listening can be the key! Approximate reading time 1 minute. **Also available in pdf.

"Mediating A Real Sexual Harassment Claim"
Published in Santa Monica Business Journal in June 1996 (By Lee Jay Berman)
This "Once Upon a Time" tells of a real sexual harassment case where at trial, there would have been lots of money spent trying to get to the truth. In mediation, what came out was that there was something else that she was really after and it was easy for the company to give it to her. Approximate reading time 1 minute. **Also available in pdf.

"Give Peace A Chance"
Published in Santa Monica Business Journal in July 1996 (By Lee Jay Berman)
This "Once Upon a Time" article examines how our society deals with conflict, war and peace. We all believe in peace and pray for peace, but do we live in a peaceful way? This article contrasts the litigation trend with the current meteoric rise in mediation where people sit down peacefully with a mediator to work out a problem to their mutual satisfaction. Approximate reading time less than 2 minutes. **Also available in pdf.

"Arbitration Clauses vs. Mediation"
Published in Santa Monica Business Journal in August 1996 (By Lee Jay Berman)
This "Once Upon a Time" article deals with today's hot issue where many companies are asking their employees to sign arbitration clauses. This article discusses the pros and cons to doing so, and compares and contrasts arbitration and mediation so that every HR Manager can fluently discuss employees' options with them. Approximate reading time less than 2 minutes. **Also available in pdf.

"Homeowner Association vs. Building Developer"
Published in Santa Monica Business Journal in September 1996 (By Lee Jay Berman)
Describes a case where an HOA had a dispute with their builder/developer, and how it all ended up tangled in litigation. Also describes how that case could have been resolved with much less time and expense by using mediation. Approx. reading time: 1 minute. **Also available in pdf.

"Unresolved Workplace Conflict Costs $$!"
Published in Santa Monica Business Journal in October 1996 (By Lee Jay Berman)
This article from the "Once Upon a Time" series reminds us how much unresolved employee conflict costs an average company, and what can be done about it. Approximate reading time less than 2 minutes. **Also available in pdf.

"Lawyers Turn To Mediation For Resolution"
Published in Santa Monica Business Journal in November 1996 (By Lee Jay Berman)
When attorneys have partnership disputes, or harassment, abuse or discrimination claims within the firm, where do they turn? Most often to a mediator. Where some people may wonder if attorneys prefer the mediation process, the evidence bears out when they bring their own disputes to a mediator! Approx. reading time: 1 minute. **Also available in pdf.

"Dissolve A Marriage Or Wage A War?"
Published in Santa Monica Business Journal in December 1996 (By Lee Jay Berman)
Once upon a time they were in love. Today they are not. Once they had babies. Today they have children. Once they wanted to be married. Today they do not. One has talked to a divorce lawyer. One wants to use a mediator. What comes next? Approx. reading time: less than 2 minutes. **Also available in pdf.


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