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Improvisation, Negotiation and All That Jazz

Musicians and students learning negotiation techniques by trained jazz musicians at Pepperdine Law School. [flashvideo file=http://firstmediation.wpengine.com/video/jazzband.flv /]

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Update on Brinker Restaurant v. Superior Court

We have a new development in the well-publicized meal period case Brinker Restaurant v. Superior Court (Hohnbaum) … the filing of the Reply Brief on the Merits by the Real Party in Interest Hohnbaum.  Get ready for the amicus free for all, which will no doubt ensue shortly.

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Presenting Magically – Tips for Making a Lasting Impression

At TED 2009, the Technology Entertainment Design conference, Bill Gates delivered a speech on the scourge of malaria, an important global problem the Bill and Melinda Gates Foundation has been addressing since Gates retired from day-to-day operations at Microsoft. During Gates’ presentation, he proceeded to release a handful of mosquitoes into the air, joking that there was … Continue reading Presenting Magically – Tips for Making a Lasting Impression

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Spiritual Fatigue In Mediation

In the recent edition of the Journal of Dispute Resolution, Magistrate Judge Wayne Brazil writes about how “spiritual fatigue” can affect seasoned mediators. His thesis is that staying centered emotionally and behaviorally in core purposes and principles of mediation can lower the level of psychic strain that this work can impose on mediators and can serve … Continue reading Spiritual Fatigue In Mediation

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Loose Lips, Sink Ships …

As reported in the ABA Journal by Debra Cassens Weiss: A law firm fired by the founders of the website ConnectU apparently got carried away in a recent marketing brochure. Quinn Emanuel Urquhart Oliver & Hedges touted a settlement in the infringement case, and even revealed the confidential amount won by ConnectU: $65 million, the … Continue reading Loose Lips, Sink Ships …

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Employees Afforded Broad Protection Against Retaliation Under the Civil Rights Act of 1964

In the case of Crawford v. Metro. Govt. of Nashville and Davidson Co., Tenn., decided on January 26, 2009, the United States Supreme Court unanimously held that it is not necessary for an individual bringing a claim of retaliation against an employer for reporting workplace race or gender discrimination under the Civil Rights Act of … Continue reading Employees Afforded Broad Protection Against Retaliation Under the Civil Rights Act of 1964

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Update on Brinker Restaurants v. Superior Court

Attached is the the plaintiff’s opening brief in the Supreme Court case on meal and rest breaks.   brinker-opening-brief   

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The Confidential Listener Technique

This is the technique suggested by John DeGroote of Settlement Perspectives which is used as a quick, confidential method to determine proximity of settlement positions. While the technique is situational and can vary with each case, generally speaking each party submits its best offer in confidence to the neutral third party (“the confidential listener”), who informs … Continue reading The Confidential Listener Technique

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Playing For Change – Peace Through Music

  This is the ultimate improvisation thanks to Bill Moyers Journal and his recent interview with Mark Johnson, the brilliant producer of the documentary “Playing For Change.” The film took 8 years to create and follows street musicians around the world as they collaborate on various songs, including the Sam Cooke classic “Stand By Me.”

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Say Cheese – Cracker Barrel Signs Mediation Agreement with the EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) and Cracker Barrel Old Country Store, Inc. have signed a Universal Agreement to Mediate (UAM) to resolve workplace disputes prior to an EEOC investigation or potential litigation. One of the EEOC’s key efforts has been to expand mediation, thus far entering into 178 national and regional UAMs with private sector employers, … Continue reading Say Cheese – Cracker Barrel Signs Mediation Agreement with the EEOC

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Confidentiality Update: Rael v. Davis

In Rael v. Davis, 166 Cal. App. 4th 1608, the California Court of Appeal considered the following issue: Is the waiver of confidentiality provision in a settlement agreement enforceable even if the agreement was not signed by all the settling parties? The Court answered the question in the negative and concluded that the trial court correctly held that … Continue reading Confidentiality Update: Rael v. Davis

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Improvisational Negotiation Podcast – Interview with Brian Breiter

Welcome to our first Improvisational Negotiation podcast. This month’s interview is with actor, professor and trial lawyer, Brian Breiter. [podcast]http://firstmediation.wpengine.com/blog/wp-content/uploads/podcasts/Podcast-1-Breiter.mp3[/podcast]

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Looking for a Career in Mediation … Here are a Few Websites to Get you Started

With employers cutting the most jobs in 34 years, 533,000 jobs in November alone, many are seizing this time as an opportunity to pursue a career change. For those who are considering a career in mediation, here are a few websites that will help get you started:  http://www.nysdra.org/careers/careers.aspx http://www.nafcm.org/pg29.cfm http://careers.acrnet.org http://www.mediate.com/jobs (requires paid membership) http://www.mediate.com/acrgeorgia/pg11.cfm … Continue reading Looking for a Career in Mediation … Here are a Few Websites to Get you Started

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Book Review- Outliers: The Story of Success by Malcolm Gladwell

Outliers: The Story of Success is Malcolm Gladwell’s third installment of how people and social phenomena work. In his new book, Gladwell delves into what it takes to achieve high levels of success and how successful individuals at the top of their respective fields get there. As the myth of individual merit and intelligence is unraveled, … Continue reading Book Review- Outliers: The Story of Success by Malcolm Gladwell

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Negotiation Tips and Techniques …

Check out Jeff’s latest article in The Plaintiff’s Magazine entitled, Setting the Stage of Negotiation. This story  is for you if:  • You show up to mediation and have never discussed settlement numbers with the defense; • The defense has not revealed to you their assessment of liability and damages; or • You are often … Continue reading Negotiation Tips and Techniques …

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Confidentiality Update: Petition for Review Denied in the Estate of Thottam

November 19, 2008 – The Petition for Review filed by Stephen L. Kaplan, Esq., counsel for Respondent Jameson Thottam,  with the California Supreme Court was denied. As a result, the appellate court’s ruling still stands that California Evidence Code §1123(c) requires neither that an express agreement in writing permitting disclosure be contained in the settlement agreement itself … Continue reading Confidentiality Update: Petition for Review Denied in the Estate of Thottam

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Daily Journal Covers the Impact of Kullar v. Foot Locker on Class Action Settlements

CLASS ACTION SETTLEMENT TOSSED OUT By Greg Katz Daily Journal Staff Writer LOS ANGELES – The other shoe dropped last week when a state appellate panel published an opinion that nixed a mediated class action settlement between Foot Locker and employees. Facing claims that the company did not reimburse employees for buying their required work … Continue reading Daily Journal Covers the Impact of Kullar v. Foot Locker on Class Action Settlements

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Ten Tips to Help Take the Pressure Out of Complex Multi-Party Mediations

If you think it’s difficult to get two opposing sides to see eye to eye, imagine a situation where you’re mediating a seventeen party case with fifty-three participants. Master mediator Michael Landrum, based in Plymouth, Minnesota, did just that. He shares his insight and provides these ten tips for taking the pressure out of complex multi-party mediations:  1.      … Continue reading Ten Tips to Help Take the Pressure Out of Complex Multi-Party Mediations

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Court of Appeal Overturns Class Action Settlement Arrived at in Mediation

The California Court of Appeal in Kullar v. Foot Locker Retail, Inc. found that the trial court abused its discretion in finding the terms of the class action settlement to be fair, reasonable, and adequate where the record failed to establish what investigation counsel conducted or what information counsel reviewed on which counsel based their assessment … Continue reading Court of Appeal Overturns Class Action Settlement Arrived at in Mediation

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Brinkley v. Public Storage – Another Meal Break Case Following the Footsteps of Brinker

The court in Brinkley v. Public Storage, Inc. decided by the Second Appellate District on October 28, 2008, agreed with the holding of the appellate court in Brinker v. Superior Court that employers only have to provide meal breaks and not ensure that they are taken. Brinkley also addresses another hotly litigated wage and hour … Continue reading Brinkley v. Public Storage – Another Meal Break Case Following the Footsteps of Brinker

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The People Have Spoken … Barack Obama is Elected 44th President

Barack Obama, a 47-year-old first-term senator from Illinois, made history last night by winning the election as the first African-American president of the United States. In his victory speech in Chicago before an estimated crowd of up to 240,000 people, Obama said, “The road ahead will be long. Our climb will be steep. We may not … Continue reading The People Have Spoken … Barack Obama is Elected 44th President

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Congratulaltions to Geoff Sharp for Being Appointed LEADR Fellow

We are delighted to congratulate Geoff Sharp, our friend and colleague, for being appointed LEADR Fellow for 2008 – 2010. Geoff is the first New Zealander to be appointed a LEADR Fellow. Previous LEADR Fellows have been the Honourable Tony Fitzgerald QC and Ms Joanna Kalowski. The role of Fellow is to act as an ambassador … Continue reading Congratulaltions to Geoff Sharp for Being Appointed LEADR Fellow

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Decision Making and the Complexities of the Brain

With the Presidential election less than a week away, neuroscientists are contemplating why there still exists such a plentitude of undecided voters. Sam Wang, an associate professor of neuroscience at Princeton, and co-author of Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life … Continue reading Decision Making and the Complexities of the Brain

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Malcolm Gladwell Explores the Connection Between Genius and Precocity

A little genius by RedBison on Flickr In his article in The New Yorker – Late Bloomers, Malcolm Gladwell, considers the work of an economist at the University of Chicago named David Galenson and why we tend to equate genius with precocity. In biology, the term precocial refers to species in which the young are … Continue reading Malcolm Gladwell Explores the Connection Between Genius and Precocity

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Brinker Update: Petition for Review Granted

The Califoria Supreme Court on October 22, 2008, voted 6-0 in favor of granting the petition for review in Brinker Restaurant Corp. v. Superior Court of San Diego County, a major employment law decision over meal and rest breaks. Justice Kathryn Werdegar was absent and did not participate in the vote. The 4th District Court of Appeal in … Continue reading Brinker Update: Petition for Review Granted

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The Impact of Visual Storytelling …

The power of visual information while not easily quatifiable, can be utilized quite effectively at the negotiating table to shape and shift another’s perception of the matter at hand. Glenn W. Richardson, Jr. discusses the power of visual information and the relevant supporting scientific data at length in his article on visual storytelling published in … Continue reading The Impact of Visual Storytelling …

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President Bush signs the Americans with Disabilities Act Amendments Act of 2008

On September 25, 2008, 18 years after his father signed the Americans with Disabilities Act of 1990 into law, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA” or “Act”).  The ADAAA goes a long way in restoring protections that were promised by the Americans with Disabilities Act of 1990, but … Continue reading President Bush signs the Americans with Disabilities Act Amendments Act of 2008

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Lessons on Improvisation from Paul Newman (1925 – 2008)

A sign famously hangs in Paul Newman’s Westport, Conn., office that reads, “If I had a plan I would be screwed.” Newman, who died of cancer this year at age 83, firmly believed in the benefit of “creative chaos,” welcoming the opinions of others whether in business or on the movie set. Newman understood and … Continue reading Lessons on Improvisation from Paul Newman (1925 – 2008)

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Martti Ahtisaari wins the 2008 Nobel Peace Prize

(AP Photo / LEHTIKUVA, Markku Ulander) OSLO, Norway (Oct. 10, 2008)—Finland’s ex-president Martti Ahtisaari won the Nobel Peace Prize on Friday for his long career of peace mediation work including a 2005 accord between Indonesia and rebels in its Aceh province and his efforts to build a lasting peace from Africa and Asia to Europe … Continue reading Martti Ahtisaari wins the 2008 Nobel Peace Prize

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The State Bar of California Brings Assistance to Struggling Homeowners

With the support of a grant from the California Bar Foundation and assistance from the State Bar of California, Office of Legal Services, Access and Fairness staff, the Public Interest Clearinghouse and the State Bar announced recently that ForeclosureInfoCA.org, a central repository for public resources and attorney volunteer opportunities, has gone live.   This site has a host … Continue reading The State Bar of California Brings Assistance to Struggling Homeowners

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Mandatory Mediation Programs Help Homeowners Facing Foreclosure

RealtyTrac, the leading online marketplace for foreclosure properties, reported in its Q2 2008 U.S. Foreclosure Market Report, that foreclosures were filed on 739,714 U.S. properties during the second quarter of 2008, a nearly 14% increase from the previous quarter and a 121% increase from the second quarter of 2007. The report also shows that one … Continue reading Mandatory Mediation Programs Help Homeowners Facing Foreclosure

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Book Review: Yes! 50 Scientifically Proven Ways to Be Persuasive by Robert Cialdini, Noah Goldstein, and Steve J. Martin

Yes! 50 Scientifically Proven Ways to Be Persuasive is Robert Cialdini’s latest effort at gathering research findings in behavioral psychology, social science, and related areas that can then be used to generate tips on how to be more persuasive in one’s personal and professional lives.  Yes! is composed of fifty short chapters, a few of which are: How can you … Continue reading Book Review: Yes! 50 Scientifically Proven Ways to Be Persuasive by Robert Cialdini, Noah Goldstein, and Steve J. Martin

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Effective January 1, 2009 – No Texting While Driving

In an effort to encourage drivers to keep their hands on the wheel and eyes on the road, Gov. Schwarzenegger signed a law making it illegal to read or send text messages while driving in California.  This follows another recent cell phone restriction making it mandatory for motorists to use hands-free devices while driving. The … Continue reading Effective January 1, 2009 – No Texting While Driving

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Life Health & Disability Case Law Update

Abena v. Metropolitan Life Insurance Company, — F.3d — , 2008 WL 4210938 (7th Cir. (Wis.) Sept. 16, 2008) In Abena, the 7th Circuit held that a three-year contractual limitations period in an ERISA regulated long term disability plan running from the date proof of loss is due, and not from the date of a … Continue reading Life Health & Disability Case Law Update

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In the News …

Extra Extra Read All About It Brinker Update – On September 29, 2008, Plaintiffs’ filed their Reply to Answer to Petition for Review with the California Supreme Court in the well-publicized meal period case Brinker v. Hohnbaum. The California Supreme Court has 60 days from August 29th, the date the Petition for Review was filed, to … Continue reading In the News …

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Using MySpace & FaceBook to Learn about Prospective Jurors

As Carol J. Williams, Los Angeles Times Staff Writer, reports in an interesting article published in yesterday’s Los Angeles Times, the Internet is proving a treasure trove of insight into the thinking and values of those called for jury duty. Online social networking sites like MySpace and Facebook are becoming commonly used as an easily accessible tool … Continue reading Using MySpace & FaceBook to Learn about Prospective Jurors

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Harvard Law School’s Great Negotiator Award is Presented to the ‘The Gates’ Artists

The Great Negotiator Award, presented annually by Harvard Law School’s Program on Negotiation has historically been awarded to figures in business and international diplomacy. This year however, the award was given to artists Christo and Jeanne-Claude, a married couple recently known for their 2005 project “The Gates” in Central Park, which featured over 7,500 bright orange structures … Continue reading Harvard Law School’s Great Negotiator Award is Presented to the ‘The Gates’ Artists

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Confidentiality Update: Petition for Review filed with the California Supreme Court in the Estate of Thottam

On September 23, 2008, Stephen L. Kaplan, Esq., counsel for Respondent Jameson Thottam, filed a Petition for Review with the California Supreme Court in the matter of Estate of Thottam. Therein Mr. Kaplan presented the Court with two issues to consider: ISSUE #1: Fair v. Bakhtiari, (2006) 40 Cal. 4th 189, 192 held that subdivision (b) of Evidence … Continue reading Confidentiality Update: Petition for Review filed with the California Supreme Court in the Estate of Thottam

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Improvisational Negotiation … Moving Away from Conventional Wisdom

Improvisational Negotiation represents a particular mind-set and approach to negotiation that is flexible and adaptable to a fluid set of circumstances.  In the Improvisational Negotiation realm, there are no steadfast rules, grids, or specific definitions that must be adhered to. Rather, the success of this technique stems from the willingness to replace the traditional “one … Continue reading Improvisational Negotiation … Moving Away from Conventional Wisdom

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Around the Town …

Every so often, we come across events taking place around the town that we think our readers may find of interest.  This is the first post in our Around the Town series. Feel free to email us with other events that you think may be of interest and we’ll add them to our next Around the Town … Continue reading Around the Town …

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The Clock is Ticking … The Future of Meal and Rest Break Class Actions Remains to be Seen

The Court of Appeal’s opinion in Brinker Restaurant Corp. v. Superior Court filed on July 22, 2008, addresses several heavily litigated issues regarding meal and rest period claims. By way of background, the Brinker Restaurant Corporation operates over 100 restaurants in California. Adam Hohnbaum represented a putative class of some 59,000 restaurant workers who are “non-exempt” from overtime, … Continue reading The Clock is Ticking … The Future of Meal and Rest Break Class Actions Remains to be Seen

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No Immunity for Bad Faith in UM and UIM Claims

In a case decided yesterday against 21st Century Insurance Company, by the California Court of Appeals, 2nd District, the insured had obtained an underinsured motorist arbitration award well in excess of insurer’s offer, and alleged in the complaint that the insurer acted in bad faith by making an unreasonable offer and by retaining an examining physician with … Continue reading No Immunity for Bad Faith in UM and UIM Claims

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Recent Confidentiality Decisions … In a Nutshell

In light of the extensive blogosphere coverage that mediation confidentiality has received in recent months, we will keep this post short and sweet.  The last year has yielded a host of decisions from across the country that has impacted the confidentiality protections afforded parties to a mediation.  We have summarized these cases with their respective citations so that … Continue reading Recent Confidentiality Decisions … In a Nutshell

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We’re up and running!

We’re excited to announce the launching of our newly redesigned website and blog. We hope you’ll visit regularly and find information that is both helpful and of interest. You can find all of our archived articles and newsletters on the website in a new easy searchable format.  If you check back in the near future, you’ll see that we’ll … Continue reading We’re up and running!

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Welcome!

Welcome to the First Mediation Blog! We are under construction. Please check back soon.

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