Friday, November 19, 2010

More Comments from Satisfied Clients

I recently mediated a wage-and-hour case with Steven for a very difficult case involving a small business owner faced with a former employee's demand that could have forced her into bankruptcy for her struggling company. Steven showed incredible patience, tenacity, and creativity in getting the matter resolved, even in the face of a very scared and emotional defendant, and a determined former employee and opposing counsel. It wasn't an easy case to resolve, but he did it!

Nancy Yaffe
Partner Fox Rothschild LLP
Los Angeles, CA

My firm recently used Steven G. Pearl, Esq. as a mediator in a wage and hour case. Mr. Pearl is extremely knowledgeable in the area of wage an hour and has the ability of bridging the gap between the parties diverging positions. In this particular case emotions ran high; however, Mr. Pearl was able to deal with the emotions of the parties and got everyone to objectively focus on the potential exposure if the case were to proceed to trial. Mr. Pearl was able to come up with unique settlement options for the parties to consider. Mr. Pearl was not willing to give up until every option was explored and finally after a full day mediation, Mr. Pearl was able to get the parties to settle. Our firm unequivocally recommends Mr. Pearl as a mediator and we will not hesitate to use him again.

Michael Nourmand, Esq.
The Nourmand Law Firm, APC
Los Angeles, CA

Steve Pearl is extremely knowledgeable about labor and employment law. His experience as an attorney and his consistent work as a mediator in this field are invaluable. He is an excellent mediator who can handle and manage very difficult and complex cases and more importantly, relate to a broad spectrum of individuals. Steve’s knowledge of the law, and, most importantly, ability to bring the parties together is truly impressive. Also, through Steve’s skill, creativity, and perseverance, we reached a successful settlement. I recommend his services to any attorney or party, regardless of the subject matter.
Alexander Gareeb
Gareeb Law Group APC
Woodland Hills, CA

Monday, November 8, 2010

Comment from a Satisfied Mediation Client

We recently used Steve Pearl’s mediation services on a very contentious case with excellent results. This was a certified class action with 2,000 class members just two months away from trial.

Steve was able to bring the mediation together and keep both sides motivated and coming back to the table, despite our firm belief that the case would never settle. Steve dealt adroitly with hostile attitudes from some of the participants and corralled the parties into realistic negotiations.

The case would not have settled but for Steve’s follow up and persistence. Steve insisted that the parties come back for a second day of mediation -- even though neither side thought it would resolve the case -- and continued to assist the parties in hammering out the key terms to a settlement that was reached after two full, grueling days of mediation, plus several days of phone calls and emails.

(And to the delight of everyone, we were provided home-baked goodies each day).

I highly recommend Steve as a mediator for any type of case, especially those that require a tough backbone. He can handle the job.

Rene L. Barge
Class Action Litigation Group
Huntington Beach, CA

Tuesday, October 12, 2010

Cal. Supreme Court Schedules Oral Argument for Mediation Confidentiality Dispute

The California Supreme Court will hear oral argument on Cassel v. Superior Court (Wasserman Comden Casselman & Pearson) on November 2, 2010, at 9:00 a.m., in San Francisco.

See our original post on Cassel here.

Tuesday, August 31, 2010

Court of Appeal Requires Personal Consent for Enforceable Settlement Agreement

Critzer v. Enos (8/30/10) --- Cal.App.4th ---, emphasizes the need for the consent of all parties -- either in writing or orally before the court -- in order to obtain an enforceable settlement agreement.

In a multi-party action, the parties recited the terms of a settlement agreement in open court, and three of the five parties gave their consent on the record. The parties could not agree on the language of a formal settlement agreement, and one brought a motion to enforce settlement under California Code of Civil Procedure section 664.6, which provides:
If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
The trial court granted the motion. The Court of Appeal, noting that the law requires the personal assent of the parties themselves, and not just their counsel, reversed:
We conclude further that because there was neither an oral settlement all parties personally agreed upon, nor a written settlement agreement signed by all of the parties, the court lacked authority under the summary procedure of section 664.6 to enforce any settlement.
Slip op. at 2.

The full text of the opinion is here.

Friday, August 20, 2010

Court of Appeal Rules Mediator's Testimony Inadmissible in Settlement Agreement Dispute

Radford v. Shehorn (August 19, 2010) --- Cal.App.4th ----, is one of those cases that's not just well reasoned, it's well written and fun to read. It asks whether a mediator can submit a declaration in support of a motion to enforce a settlement agreement. It begins:

Mediators facilitate settlement of legal disputes. They use a variety of techniques to achieve that goal which include listening, enlightening, suggesting, empathizing and, sometimes, cajoling. But once the mediation is concluded, the mediator may not offer clarification concerning the mediation or a disputed settlement unless the parties agree otherwise. Like an actor whose concluding scene occurs in Act 2, the mediator may not reenter the stage to play a part in Act 3.

The parties here signed a settlement agreement during a mediation. One party brought a motion to enforce the agreement pursuant to Code of Civil Procedure section 664.6. The first page of the agreement contains a waiver of mediation confidentiality. A question arose whether the first page was part of the agreement. The trial court found it was and granted the motion to enforce the settlement.

We conclude the trial court erred in admitting the mediator's declaration into evidence, but that the error was harmless. We affirm.

Slip op. at 1.

The Court reasoned that mediation confidentiality prohibits a mediator from testifying - in person or in a declaration - to anything having to do with a settlement agreement drafted at a mediation, including the number of pages the agreement contains. The trial court erred in admitting the mediator's declaration, but the Court held that the error was harmless because the motion was supported by counsel's declaration that the parties executed the settlement agreement. Although mediation confidentiality prohibits attorneys from testifying as to things said at mediation, it does not prevent them from testifying as to conduct, such as the parties signing the settlement agreement. That said, the Court affirmed the order enforcing the agreement.

The opinion is available here.

Friday, May 14, 2010

How to Deliver Value to Clients

Jeff Krivis's book, How to Make Money as a Mediator, is not about how to make money as a mediator. It is about how to build a successful mediation practice: working hard, being fair, being worthy of the trust that clients place in you, being true to who you are, building relationships, closing the deal. Really, this book is about what every good mediator strives to do: creating value for your clients.

One of my favorite parts of the book is the section entitled "The Best Investments Are In People and Place." Krivis emphasizes the need to find and invest in great people, who will represent you to the world.

I am very fortunate to have terrific people to work with. They add value for our clients in our litigation and mediation practices and have helped me build our practices. Having them to work with makes all the difference.

Tuesday, April 13, 2010

Court of Appeal Finds that Mediation Confidentiality Does Not Protect Attorney-Client Communications

In Porter v. Wyner (Cal.App. 2 Dist., April 08, 2010) --- Cal.Rptr.3d ----, 2010 WL 1382368, the Court of Appeal considered whether the mediation privilege cvers communications between attorney and client made in the course of a mediation. The Court described the dipuste as follows:

Wyner Tiffany had previously represented the Porters in a separate lawsuit brought by the Porters against the Manhattan Beach Unified School District and the California Department of Education. The instant lawsuit arose as a result of Wyner Tiffany's failure to follow through on a promise that was allegedly made to the Porters during a mediation of that underlying action wherein Wyner Tiffany promised to pay the Porters certain proceeds from their attorneys' fees. Though Wyner Tiffany initially objected to the admissibility of the communications made during the mediation of the underlying lawsuit, they later withdrew the objection. At trial, evidence of the communications between Wyner Tiffany and the Porters with respect to the promises made at the mediation were admitted. Approximately a month after the trial court entered judgment, it granted a motion for new trial because it believed the then newly decided case of Simmons v. Ghaderi (2008) 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934 (Simmons), mandated such a result.

Appellants claim the trial court erred in granting the new trial, as the communications between an attorney and its client do not fall within the purview of mediation confidentiality. Wyner Tiffany contend the trial court properly granted their motion for a new trial because the jury's consideration of confidential mediation communications created an irregularity in the proceedings statutorily mandating a new trial. Wyner Tiffany also cross-appeal, contending the trial court erred in ruling their motion for a judgment notwithstanding the verdict (JNOV) was moot.

Slip op. at 1.

A split Court of Appeal panel held that communication between attorney and client do not fall within the protection of mediation confidentiality. After reviewing the confidentiality provisions of Evidence Code Section 1119, et seq., the Court held:

The purpose, policy and intent behind mediation confidentiality is to protect the free flow of communication and ideas (e.g.demands/offers) that form the basis and structure of a successful resolution process. The confidentiality that is accorded mediation was never intended to protect communications or agreements between a client and his own counsel should a conflict arise between them. The attorney-client privilege, codified in section 954, already provides the necessary protection. Section 958, through its waiver procedure, allows a client to seek appropriate recourse should something occur that places him and his attorney on a conflict course. It provides that there is “no privilege” that covers “a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” (§ 958.)
Slip op. at 7. The Court expressed concerns that extending mediation confidentiality to attorney-client communications would make it impossible for clients to waive the attorney-client privilege and would have a chilling effect on the use of mediations. Ibid.

The Court also expressed concern that if it allowed mediation confidentiality to include attorney client communications, it would lead to a slippery slope wherein all attorney-client communications in a mediated case could be considered as being confidential, "virtually every discussion between an attorney and his client during the course of representation could be considered as falling within that definition because any discussion may be used for a mediation purpose down the line." Slip op. at 8.

Finally, the Court distinguished the decision in Simmons v. Ghaderi (2008) 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934, in which the California Supreme Court held that mediation confidentiality must be strictly construed and prevents introduction of evidence that a doctor consented to the settlement of a medical malpractice action where the doctor refused to sign a written settlement agreement. The Court held that the Simmons decision's strict protections for mediation communications did not apply to the statements at issue here, since they were not subject to confidentiality in the first place.

I believe that the Porter majority reached the correct result. Attorneys must remember that the clients are the holders of the attorney-client privilege and may waive the privilege when they believe that their attorneys have acted inappropriately. As the Porter majority noted, expanding mediation confidentiality to include attorney-client communications would eviscerate this important public protection.

Litigating and Mediating

People frequently ask whether I intend to give up my law practice so I can mediate full time. The answer is no. I enjoy litigation too much. Sound strange? Let me explain.

A very successful trial lawyer I know once told me what he loved so much about doing trials. "I get to just talk to the judge and jury. At a certain point everything falls into place, and it's like the other attorney isn't even there. Whatever he has to say, it doesn't even matter."

I'm not as smooth as this guy, but I do enjoy being in Court, and I do sometimes have the sense that it's just me and the judge or jury, and the other lawyer is out in the cold. It doesn't matter what he or she says, because I know that I'll have a better answer and that I'll prevail.

It feels similar to the way that athletes describe being "in the zone." You don't have to think about what you're going to do next or worry that you're going to make the wrong move. Everything you do, everything you say, just works.

A quick example: I was in Court a couple of weeks ago on my clients' motions for summary adjudication of the defendant's independent contractor and exemption defenses. I felt very comfortable with our position, the facts, and the law. The defense made a couple of good arguments, but I had better responses.

Maybe more importantly, I felt completely at ease with myself and the situation, and I could focus completely on the judge's concerns. I was able to tune out the typical bs from the other side, focus on what mattered to the judge, respond to his concerns, and lead him to where I needed him to go.

The judge took the matter under submission, but I remained confident that we would win, which we did. To be honest, whether we had won or lost, it was this amazing sense of being in control of the situation without trying to be in control that I enjoyed so much.

When you feel like that, how can you lose?

Monday, April 5, 2010

A Tough Mediation with a Happy Ending

I mediated a very tough case this past week. Two parties who had done business many times over the last several years agreed to an equipment lease. Before performance, the lessee renegotiated the contract price, and the lessor agreed, but there was some dispute over the final price, and the parties didn't put anything in writing. After performance, the lessee used a variety of tactics to try to avoid paying at all, and the lessor sued.

The case went to binding abitration. I came in after introduction of evidence and just before the arbitrator was set to hand down a decision. The lessee argued that the contract was uncertain and unenforceable because the parties did not have a meeting of the minds on the lease price. The lessor denied this and claimed the full lease price.

The mediation was very highly charged. The lessee argued that the price demanded was too high and unfair. He insisted that the parties had not completed a contract at the time of performance. When I explained that I thought he was going to lose the arbitration, he became defiant, claimed poverty, made a low-ball offer, and insisted that he would not pay a penny more. The lessor also took a hard line, not wanting to accept a penny less than his arbitration demand.

We went through several rounds of negotiation. We explored the parties' interests and options for continuing to do business together. We discussed their risk tolerance and their desire to resolve the dispute. When we finally got down to the numbers, and both sides bargained hard, but made reasonable concessions to make a deal happen.

Each party ultimately agreed to compromise as a way of putting the matter behind them and avoiding further damage to their relationship.

This was a very tough, but rewarding experience for me as a mediator. It took much perserverance, cajoling, careful listening, evaluation, facilitation - basically every trick I know - but in the end I helped the parties resolve the dispute. I understand that the settlement funds have been paid already and that the parties have moved forward. In fact, they sent me this to show their appreciation for my work:

Two tough negotiators who put this mediator through his paces.

Monday, March 29, 2010

Real World Lessons Learned from "Powerless" Mediators

What can an experienced, real-world mediator learn from an ivory tower political science professor? Surprisingly, the answer may be, "Plenty."

I recently met UCLA political science professor Barry O'Neill, who uses game theory to analyze international relations and who also has an interest in mediation. Professor O'Neill has written a paper - still in draft from - entitled "What Can a Powerless Mediator Do for Strategic Negotiators?" O'Neill may underestimate the power that mediators have generally, but even so he demonstrates a number of important points that mediators and negotiators should consider.

O'Neill asks readers to consider a "powerless" mediator who "has no means to coerce or bribe the parties or any special information to give them. Further, the mediator is dealing with negotiators who are foresighted and strategically pursue fixed goals, so that the mediator's problem-solving ability, personal persuasiveness or charisma add nothing."

O'Neill then demonstrates mathematically that such a "powerless" mediator still can add value to a negotiation. Such a mediator can focus the parties' attention on an existing strategy for resolution, or what game theorists call an equilibrium; help the parties resolve issues and save face by initiating compromises that the parties themselves may not want to risk initiating; and reduce each party's risk in exploring common interests.

Here's the rub: good mediators in the real world do in fact perform these functions.

First, experienced negotiators and mediators frequently can tell fairly early in a negotiation where it is going to end. In other words, they can see the best strategy for each side to use given the strategy being used by the other side, and they can see these strategies through to the point of resolution. This may be intuition, or it may be evidence of the mathematical equilibria for which game theorists search.

Good mediators not only can see the solution, but also can lead the parties through the negotiation to that solution. In plain English, good mediators helps the parties discover solutions that are already there.

Second, most if not all parties enter negotiation with the fear that they will give too much or leave value on the table. In litigation, the attorneys frequently have another layer of fears. Not only do they fear that the other side will try to take advantage, but they also fear that their own clients will see them as weak and incompetent if they seem too willing to compromise. For attorneys, negotiation frequently means fighting a war on two fronts.

Of course, good mediators understand this. They do not just act as messengers of the parties' respective positions. Instead, they initiate and advocate for compromises that the parties themselves may not want to initiate, thus allowing the parties to save face when called upon to make concessions. By initiating and advocating for compromise, good mediators also allow the attorneys to save face with their clients. An attorney who wants a case to be resolved but needs to save face with the client can count on a good mediator to read the situation and act accordingly.

Similarly, good mediators help the parties explore their common interests without losing face. In situations where mutual gains can be achieved through cooperation - and not all cases fit this model, as I discussed here - good mediators will work with each party to explore options in private session. Further, good mediators will present such options as mediator's proposals when the parties are not willing to risk presenting such options as their own.

"But all mediators know these things, dont they?"

The most important lesson from O'Niell's paper is one that he does not state explicitly, but that many experienced negotiators will recognize: Far too many of us professional mediators think too highly of our mediation "powers" and would do well to get back to the basics suggested by O'Neill. An example:

Not long ago, I represented one of the parties in a mediation with a very well-known, very successful mediator. As frequently occurs, the parties disagreed on a factual issue. What was unusual was that the mediator insisted that we resolve the issue before we moved forward. I explained repeatedly that my client and I were not particularly interested in the issue and that we wanted to work on getting to a settlement done. He insisted that his mediation "style" was to explore all such issues before talking numbers. He told us that he could not go forward without resolving the issue and asked the parties to return for another session once they had produced evidence to support their positions. Since the mediator would not go forward, we left, and it goes without saying that we did not return for a second session.

What compelled this highly respected mediator to put his mediation "style" ahead of the parties' need to resolve the case? I do not believe that the mediator simply wanted to earn more fees for a second session. I believe that the mediator had become too enamored of his own "style" and his own "power."

Everyone who mediates professionally should consider the lessons learned from O'Neill's hypothetical "powerless" mediator: that good mediators can add value not by imposing their own wills or personalities on the negotiation, but by focusing the parties' attention on existing strategies for resolution, by exploring common interests in separate sessions that the parties may not be willing to explore with each other, and by initiating and advocating for compromises that the parties may not be willing to risk initiating themselves.

Monday, March 22, 2010

Bargaining in the Dark (Part II)

In my last post, I introduced John C. Harsanyi and a paper that he wrote in 1962 on the following question: Given that parties typically do not know each other's "utility functions" (i.e. preferences and risk tolerances), how is it that people manage to reach agreements as frequently as they do? Harsanyi suggests that two mechanisms may be at work:
On the one hand it is conceivable that in a given society with well-established cultural traditions people tend to enter bargaining situations with more or less consistent expectations about each other's utility functions.
Alternatively, we may assume that compatibility between the two parties' final concession points is not the result of their already entering the bargaining situation with mutually consistent expectations, but is rather the result of mutual adjustment of their expectations during the bargaining process itself.
Harsanyi argues that "mecahnism II can operate only if bluffing can be brought under effective control," which he says is not possible. He argues that people do not adjust their bargaining positions in response to anything that they consider to be a bluff. Harsanyi concludes:
[M]echanism II can operate only if bluffing by the parties is brought under control... [T]his condition is rather imperfectly met in most real-life situations, which restricts the usefulness of bargaining for the purpose of testing out the opponent's true attitudes.
I have to disagree with this conclusion. First, Harsanyi discounts the ability of people to test and expose bluffing. It seems to me that people in the real world deal very frequently and effectively with bluffing. People who believe they are being bluffed typically will test the bluff by hardening their own positions. If this does not produce results, they typically will leave the negotiation. Harsanyi considers this a failure, but he ignores the likelihood of iterative bargaining, i.e., returning to the table after a failed initial session. This happens frequently in more complex disputes, whether they involve money or other interests. In fact, it seems to me that iterative bargaining is the predominant model.

Second, while Harsanyi correctly recognizes that penalizing excessive bluffing increases the effectiveness of bargaining, he seems to underestimate the degree to which the real world does in fact penalize excessive bluffing. In a transactional context, a bad bluffer will lose out on good opportunities while trying to make incremental gains on return. In litigation, the bad bluffer not only will lose out on the opportunity to make reasonable settlements, he also will suffer increased costs as litigation continues. These costs include not only the dollar expense of paying for lawyers, expert witnesses, etc., but also the time, attention, and emotional energy that litigation require.

Third, I disagree with Harsanyi's argument that people cannot obtain useful information about each other's utility functions if bluffing is permitted. Because people can and do test each other's bluffs -- such as by walking away from negotiations -- and because the real world does penalize excessive bluffing, there comes a time in every negotiation when all but the most intransigent bluffers will have to "get real."

Friday, March 19, 2010

Bargaining in the Dark

Do you remember the film A Beautiful Mind? It tells the story of John Forbes Nash, Jr., a brilliant but troubled methematician played by Russell Crowe. Unless you're a math geek, you probably don't know that Nash did his mathematical work in game theory. As shown in the film, Nash received the Nobel Prize in Economics in 1994. He received the award along with Reinhard Selten and John C. Harsanyi, and that leads me to the reason for this post.

John Harsanyi was born in Budapest, Hungary, in 1920. He attended the best mathematics school in Hungary and was a student of John Von Neumann, the father of game theory. As a Jew, Harsanyi would have been sent to a concentration camp in 1944, but he escaped from the train station and was given refuge in the basement of a Jesuit monastery. After the war, he left for Australia and, eventually, the United States. He was a professor emeritus of economics at my alma mater, U.C. Berkeley, until he passed in 2000. Harsanyi's autobiography, written on receiving the Nobel Prize, is here.

Harsanyi wrote a paper in 1962 entitled "Bargaining in ignorance of the opponent's utility function." The paper is brilliant and is available here.

Harsanyi begins by noting that most of existing game theory "is based on the assumption that the two parties know each other's utility functions ... [or] each other's preferences as well as each other's attitudes toward risk." Of course, in most real world interactions, we have at best sketchy information about our bargaining opponents, their preferences, and their attitudes about risk. And our opponents usually work very hard to keep this information from us, particularly in competitive situations.

"In bargaining, and more generally in all non-trivial game situations, the behavior of a rational individual will depend on what he expects the other party will do." Harsanyi explains that this dynamic is at play for both sides, so that what A does depends on what he expects B to do, which depends on what he expects A to do, ad infinitum. The result of these intertwined expectations is as follows:
[A] bargaining party faced with a presumably rational opponent cannot rationally expect this opponent to make a concession in a situation that he himself, following his own criteria of rational behavior, would refuse to make a concession. This imposes a strong symmetry requirement on the bargaining strategies that can be rationally chosen by two bargainers who expect each other to act rationally. This symmetry postulate, together with some other very natural postulates of rational behavior, then selects a unique solution (equilibrium agreement point) for each particular bargaining game.
If the parties know each other's preferences and attitudes about risk, the parties easily reach resolution. "This is so because both parties ... will accept, and will also expect each other to accept, the solution point as their agreement point."

The problem, as noted above, is that we normally do not know each other's "utility functions." Despite this, Harsanyi notes that people manage to resolve conflicts "much more often than mere chance would allow." And this is the point of the paper: What is it that allows parties to reach agreement in competitive situations, even though they do not know each other's preferences or attitudes toward risk?

Harsanyi provides an answer, which I will discuss in my next post.

A Critique of "Getting to Yes"

Getting to Yes offers a concise, step-by-step, proven strategy for coming to mutually acceptable agreements in every sort of conflict -- whether it involves parents and children, neighbors, bosses and employees, customers or corporations, tenants or diplomats.
This is from the back cover of the book, and it is largely true. The book, authored in 1981 by Roger Fisher and William Ury and updated in 1991, promotes the theory of "principled negotiation." The principles, which have become part of the negotiation vernacular, are as follows:
  • Separate the people from the problem (don't make it personal);
  • Focus on interests, not positions, which leads to win-win resolutions;
  • Work together to create options that satisfy both parties; and
  • Negotiate with people who are more powerful or refuse to play by the rules of principled negotiation.
The authors do an excellent job of covering this ground. The book is an easy, fast read, and includes lots of good advice and interesting examples.

The problem that I have with the book is that it focuses on situations where win-win solutions are not only possible, but both party gains by finding them. Look at the list of conflicts that the authors say can be resolved with principled negotiation. All of them involve important, ongoing relationships: parents and children, neighbors, bosses and employees, customers or corporations, tenants or diplomats.

In contrast, the cases that I handle -- and I think most of my colleagues would agree -- do not involve ongoing relationships between the parties and do not lend themselves to win-win solutions. My clients typically are former employees who no longer work for the former employers they are suing. In personal injury cases, the parties typically did not know each other before the accident and likely will not vacation together after the litigation ends. In medical or other professional malpractice cases, the plaintiffs will not be going back to the defendants for their next surgery or to do their taxes. Even in business litigation, where the possibility of ongoing relationships may open the opportunity to greater principled negotiation, the negotiations typically boil down to the dollars and cents, and nothing more.

I handled a business litigation matter a number of years ago that illustrates this point. The plaintiff had offered to buy certain goods from the defendant, and a dispute arose as to whether they had created a binding contract of sale. The deal fell through, and the buyer sued. We mediated with Judge John Wagner, a very talented mediator. Judge Wagner dutifully went "below the line" to explore interests (i.e., principles), rather than just positions (i.e. dollars). In caucus, the buyer claimed that he had sued on principle, and that the money didn't even matter to him. Judge Wagner then asked the seller whether he would be willing to apologize, and he said he would, if it would help resolve the case. Judge Wagner took this possibility back to the buyer, who then - quite predictably - became less interested his principles, and more interested in his position. Faced with the option of giving up money to satisfy his principles, the buyer's principles went out the window.

Getting to Yes does address these types of issues - like how to negotiate with hard bargainers- but it does not go far enough in doing so. Principled negotiation is likely to prove most useful in those important, ongoing relationships that require careful attention to principles. But in the types of negotiations that most of us handle on a daily basis as advocates, Getting to Yes falls short.

Thursday, March 18, 2010 - An Excellent Resource on Game Theory

We started "Mediating the Litigated Case" with the Prisoner's Dilemma, a classic exercise in game theory. If you don't know the Prisoner's Dilemma, you can find a brief definition here. This got me interested in reading more on game theory, which I've been doing for the last month or so.

Game theory, generally speaking, is a branch of mathematics that seeks to identify optimal strategies, or solutions, to given problems. For example, in the Prisoner's Dilemma, game theory teaches that each player's dominant strategy is to defect, regardless of the strategy chosen by the other player. This may seem counter-intuitive, since the two players collectively would fare better if neither sought to maximize his own outcome, but it is correct. Game theory may sound exotic and may engender fear in those who say they "don't like math," but it's an incredible analytical tool that has been used in war planning, business and management, economics, law, and sociology. Anyone who is interested in how people interact -- and that means everyone -- should take a little time to understand the basics of game theory.

One tremendous resource for those interested in learning more is It includes links to books, lecture notes from undergraduate, masters, and PhD level courses, and interactive materials that help explain game theory concepts.

Wednesday, February 24, 2010

California Supreme Court Grants Review to Consider Mediation Confidentiality

On February 3, the California Supreme Court granted review in Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson). According to the Court's case summary, Cassel raises the following issues:
(1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evidence Code sections 1115 through 1128?

(2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evidence Code section 1119, subdivision (c) and 1122, subdivision (a)(2)?
The Court's docket is available here.

Friday, January 1, 2010

Steven G. Pearl Mediation

You know me as a strong advocate for my clients and an authority on wage and hour law. I recently co-authored California Wage and Hour Law and Litigation, published by Continuing Education of the Bar (CEB). Available here. I also author the The California Wage and Hour Law Blog, a respected resource for insightful and timely reporting on developments in wage and hour law.

You may not know that I also am a successful mediator. I love to help people resolve difficult cases and I bring all of my energy, commitment, and tenacity into my role as mediator. I am fascinated by the theory and practice of mediation and negotiation and now author The Mediation and Negotiation Blog. My broad experience in more than 17 years of litigation allows me to mediate any type of civil case, but my focus is on wage and hour, where my depth of substantive knowledge and credibility on both sides of the bar put me in a unique position to help people resolve cases.

I look forward to hearing from you and working with you in the near future.