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Articles

Master of Mediation Moves Up

Jeffrey Kichaven Will Lead Regional Neutrals Organization

By Anne La Jeunesse
Daily Journal Staff Writer.
November 5, 2004

Some may think that Herman Melville's classic "Moby Dick" chronicles a sea captain's self-destructive and obsessive hunt of the white whale.

But, says Jeffrey G. Kichaven, the incoming president of the Southern California Mediation Association, they're partially right.

The novel actually involves artful mediation techniques, such as crafting a solution to a seemingly insolvable problem said.

Near the end of the story, when his whale-plundered ship capsizes, sailor Ishmael saves himself from an eternal watery grave by chambering a top an empty coffin that has bobbed to the ocean's surface.

What might have been distasteful, Kichaven said, turned out to be Ishmael life buoy.

Such innovative thinking will make Kichaven a dynamic leader for the 500 member Southern California Mediation Association, say legal professionals who have worked with him.

Eric R. Galton, an attorney with the Lakeside Mediation Center in Austin, Texas, worked with Kichaven on dispute resolution issues for the American Bar Association.

"Jeff is one of these really unique combinations of the amazingly creative people and the 'get things done' people," Galton said. "Some people ate very creative but can't get things done. Some people get a lot of things done but are not particular creative.

"Jeff brings a high level of creativity and energy to everything that he does."

Kichaven will take the helm of the mediation at the organization's 16th annual conference Saturday at Pepperdine University School of Law in Malibu.

The 48-year-old former civil litigator, who spent 15 years as a partner in the Los Angeles firm Alschuler, Grossman & Pines, now Alschuler, Grossman, Stein & Kahan, opened his own alternative dispute firm in 1995.

He also has worked with the American and Los Angeles County bar associations and the State Bar on mediation activities, as well as with bar associations in other states.

U.S. District Judge Dean D. Pregerson, who worked with Kichaven at Alschuler, Grossman & Pines, said that Kichaven will be a dynamic leader.

"Jeff is a brilliant lawyer, one of the smartest lawyers that I've met, but he also has a rare sensitivity to understand what motivates people to file lawsuits and what the core issues are," Pregerson said. When you couple those talents with excellent interpersonal skills, what you have is one the best mediators that one could ever hope for."

Kichaven, who begins every morning with a yoga session at the Los Angeles Athletic Club, said the switch from litigation to mediator has been very satisfying, professionally and personally, and he wants to spread the word during his tenure as Southern California Mediation Association president.

He jokes that raising children is good practice for mediation. He and his wife artist Andrea Kichaven have a 14-year old daughter, Brian, and two sons, 20-year old Jonathan, a junior at the University of Wisconsin, and Matthew, 16. The family lives in West Los Angeles.

The association, founded in 1989 to respond to the increasing interest in mediation as a profession and as an alternative to court-litigated disputes, offers professionals ongoing education to increase the level of competence and skill "so that mediators can do a better job of helping their clients," Kichaven said.

Members also can learn of mediation employment opportunities through the association.

"I just thought it was the time in my life to get off the path of least resistance," Kichaven said, "Being a mediator seemed like a great idea. Only in the past 10-to-15 years has it been possible to have this as your career."

Kichaven's spacious downtown office suite features a relaxing kitchen-television area, conference areas ranging from large to intimate, clever drawings that illustrated his mediation magazine articles and coffee cups emblazoned with the not-too-subliminal message "Don't Be a Jerk."

The comfortable atmosphere helps foster mediation, Kichaven said.

Alternative dispute resolution can be entered into in two very different ways: arbitration or mediation .

Arbitration is simplified version of a trial, involving no discovery and simplified rules of evidence, in which the arbitrator makes the final decision.

Mediation is less-formal option and uses neutral individuals, not necessarily attorneys or retired judges, who bring opposing parties together and attempt to forge settlements or agreements in an effort to avoid costly and time-consuming court trials.

Los Angeles Superior Court Judge Helen I. Bendix, who has chaired the court's ADR committee and was on a Supreme Court ad hoc advisory committee related to ethics involving former judges involved in mediation and arbitration, said that Kichaven's assistance has benefited the courts and the art of mediation.

"Jeff brings not only expertise as a mediator, but he's very well-grounded in the practice of law," Bendix said. "He thinks both as a litigator [and] mediator and a someone who has worked in court ADR programs so his guidance is always appreciated".

"Kichaven said that mediation decreases the burden on courts, saving them for cases that truly need aggressive litigation.

Mediation also decrease the expense for parties because they do not have to pay for exhibits and expert witnesses, and it gives parties the empowering feeling that they are participating in their own agreement or settlements, not just leaving it up to the lawyers.

Mediators, he said, also help lawyers give parties realistic views of their cases.

"It helps clients who come voluntarily looking for a face-saving ways to put a difficult situation behind them," Kichaven said.

Attendees of Saturday's association conference will hear state Supreme Court Justice Carlos Moreno speak in "Mediation and the Administration of Justice."

In addition, sports überagent Scott Boras, who represents, among others, Dodgers pitcher Eric Gagne, will share tips on "How to Negotiate Big Deals."

The Malibu conference will feature 18 workshops, providing, among other information, cutting-edge approaches to family mediation, a primer on using acting techniques to further mediation, a comic improvisation session and even an introduction to Tai Chi, the Chinese martialart of combining gentle movement and breathing techniques.

Attendees will learn the yin and yang the yielding and attacking components in Tai Chi and how to tailor the techniques to effective mediation.

"Mediation is whatever works," Kichaven said.

Mediation is used largely in employment disputes but growing in areas such as bad faith insurance situations, entertainment contracts and intellectual property and technology disputes. It also is used in real estate, probate and security disputes.

The event will kick off Kichaven's year-long efforts to double the organization's membership and beef up membership in San Diego and the Inland Empire.

He also plans to work on public policy and strive to strengthen mediation confidentiality as a means to making the process work well.

In addition, he wants to continue the organization's efforts against government regulations of mediators. The State Bar has sided with that viewpoint.

"The marketplace provides excellent and adequate means of regulating the profession," Kichaven said.

Linda A. Klein, a managing partner at Gambrell & Stolz in Atlanta, Ga. said that Kichaven will be a great leader of the Southern California association and described his as thoughtful, deliberate and pensive.

"When he acts, he has though it our and acts with purpose," Klein said, "He is measured and calm, which are the signs of a good mediator and a good leader."

Richard C. Reuben, a law professor at the University of Missouri, Columbia, School of Law and a senior fellow at the school's Center for the study of Dispute Resolution, said that Kichaven is a very articulate man with the courage to stand up for what he believes, despite potential political ramifications.

Kichaven helped Southern California Mediation Association members write an amicus brief in the case of Rojas v. Superior Court, 102 Cal.App.4TH 1062 (2002).

In Rojas, Kichaven and the association supported the 2nd District Court of Appeal's ruling allowing confidential evidence produced for mediations to be introduced in subsequent litigation.

The American Bar Association took the opposite view, Reuben said, and the stateSupreme Court, in July, held that all documents and materials prepared for mediation are off-limits to discovery in subsequent lawsuits.

"It took a lot of courage to stand up to other prominent people in the mediation area," Reuben said. "[Kichaven] really is a person who is principled; he really does stand up for what he believes in, regardless of what the political consequences might be."

Torrance attorney Bruce M. Brusavich, who represents tenants suing a landlord in the Rojas case, said he was appreciative of Kichaven involvement in the case.

"He's very involve with the integrity of the system," Brusavich said, "He's involved with making sure mediation is kept pure to resolve disputes, as opposed to allowing mediation to be used for gamesmanship."

Kichaven said that mediation enables parties to experience and appreciate each other's cultural and philosophical differences and commonalities, which also helps motivate parties to settle their disputes.

A film buff, Kichaven points to two films that, like "Moby Dick," he sees as models of mediation.

In Quentin Tarantino's 1994 crime film "Pulp Fiction," three men arrive at a mutually accepted plan about how to ditch a bloody corpse.

Oliver Stone's "13 Days" gives the director's take on one of the most potentially explosive mediations of out time between the United States and Cuba during the Cuban Missile Crisis, Kichaven said.

Watching such films, Kichaven said, is not only enjoyable but also educations for mediators trying to expand their repertoire of techniques for helping clients overcome conflicts.

"It helps you think outside the box," Kichaven said. "Anything you've seen or heard or done can be used, if it helps."



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