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Howard A. Herman

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    Biography
    General Biography
    Practice Areas & Industries
    American Indian Tribal Law
    Appellate
    Business Commercial
    Civil Rights
    Education Law
    Employment Law
    Environmental Law
    Federal Law
    Governmental & Public Agency
    Health Care
    Higher Education & Title IX
    Insurance
    Intellectual Property
    Personal Injury
    Real Property
    Training & Teaching
    Honors, Memberships, and Professional Activities
    Background and Education

    Howard Herman has worked as a mediator and as a developer of ADR programs since 1985. He has mediated several thousand disputes covering a wide range of case types. He specializes in matters involving high emotion and complex power dynamics.

    Mr. Herman’s clients extol his intelligence, fairness, integrity, patience and sensitivity. They characterize him as thoughtful, imaginative, earnest and relentless in his pursuit of practical solutions. Mr. Herman is a process expert who takes pride in customizing his approach to each case in response to the needs of the participants.

    ADR Experience and Qualifications

    • Mr. Herman has mediated several thousand disputes since 1985; case types include employment, business/commercial, ADA access, civil rights, public policy, copyright, trademark and environmental.
    • For more than 23 years, Mr. Herman led the highly regarded ADR program of the U.S. District Court for the Northern District of California in San Francisco. He began his ADR career in the earliest experiments with appellate mediation at the Ninth Circuit Court of Appeals. He then served as the first director of ADR programs at the Superior Court in Contra Costa County before moving to the Northern District.
    • Mr. Herman is a recognized leader in the development of the ADR field. He has taught basic and advanced mediation skills to thousands of mediators, lawyers, law students and judges throughout the United States and around the world. He served as chair of the ABA Section of Dispute Resolution from 2015 to 2016. He was the inaugural recipient of the Robert F. Peckham Award for Excellence in ADR presented by the Ninth Judicial Circuit in 2002 and received that award again in 2019. In 2011, he was co-recipient of the Mediation Society of San Francisco’s annual Award for Outstanding Contribution in the Field of Mediation. In 2013, he was the inaugural recipient of the Exceptional Service Award presented by UC Hastings College of the Law's Center for Negotiation and Dispute Resolution, where he has taught ADR courses since 1996.

    Representative Matters

    • Business Commercial
        • Numerous cases alleging improper mortgage foreclosure by major lenders
        • Numerous matters alleging violations of Fair Debt Collection Practices Act
        • Numerous cases alleging violations of Fair Credit Reporting Act
        • Pre-litigation contract dispute involving service provider and public entity
        • Bad faith failure to pay on fire insurance policy
        • Contract dispute between major retailer and commercial landlord
        • Dispute between municipalities and federal government concerning Medicare reimbursements
        • Disputes between gas station owners and oil companies under Petroleum Marketing Practices Act
        • Dispute between bail bondsman and insurance carrier over claim denial
        • Numerous cases involving cable television piracy
        • Fraud and breach of contract action against a Cannabis company
        • Breach of contract action involving enforcement of a foreign judgment
        • Breach of employment contract involving a technology company
    • Civil Rights and Public Policy
        • Wrongful conviction case against a municipality and its police department
        • Human trafficking claim by seamen against fishing vessel owner
        • Section 1983 case regarding death of an inmate in custody at a county jail
        • Educational discrimination action against community college district
        • Housing discrimination actions against homeowners’ associations
        • Qui Tam action involving Low Income Housing under Section 8
        • Americans with Disabilities Act:
          • Hundreds of clams under Title 2 and Title 3 concerning architectural barriers, hearing impairment, vision impairment, service animals, voting rights and website access brought by individuals and by major disability rights organizations against all variety of defendants, including:
            • National retailers
            • Small-business owners
            • Concert venues
            • Ride-sharing companies
            • International hotel chains
            • National restaurant chains
            • Hospitals and nursing homes
            • Government entities
            • Large municipality
            • Homeowners Association
    • Employment Law
        • Numerous employment discrimination cases, including claims of gender, race, age, sexual and disability discrimination
        • Numerous wrongful discharge matters
        • Numerous wage and hour claims against both small and large businesses
        • Numerous sexual harassment claims
        • Numerous employment contract disputes
    • Environmental Law
        • Dispute brought by Native American tribes involving claims of failure by state and federal government to mitigate environmental effects of highway construction
        • Dispute brought by public interest groups alleging failure to comply with provisions of the Wilderness Act
        • Dispute alleging failure to mitigate harm from fishing practices under Endangered Species Act
    • ERISA
        • Claims of failure to make contributions to pension trust funds
        • Claims of denial of long-term disability benefits
    • Health Care
        • Dispute regarding changes in outpatient drug reimbursement
        • Employment dispute concering major health care provider
        • National class action concerning use of check-in kiosks
        • Wrongful death action against Veteran's Administration hospital
    • Intellectual Property
        • Copyright dispute involving motion capture technology
        • Trademark disputes involving international clothing manufacture
    • Personal Injury
        • Wrongful death action against Veteran’s Administration hospital
        • Numerous slip-and-fall cases against national retailers
        • Case involving extensive injuries due to alleged negligence of municipality
    • Real Property
        • Qui Tam action involving Low Income Housing under Section 8
        • Numerous cases alleging improper mortgage foreclosure by major lenders

    Honors, Memberships, and Professional Activities

    Completed Virtual ADR training conducted by the JAMS Institute, the training arm of JAMS.
     

    Awards and Profiles

    • Robert F. Peckham Award for Excellence in Alternative Dispute Resolution, Ninth Judicial Circuit, 2019
    • Exceptional Service Award, UC Hastings College of the Law, Center for Negotiation and Dispute Resolution, 2013
    • Outstanding Contribution in the Field of Mediation, Mediation Society of San Francisco, 2011
    • Robert F. Peckham Award for Excellence in Alternative Dispute Resolution, Ninth Judicial Circuit, 2002
    • “Facilitating Better Outcomes,” UC Hastings Law, Spring 2011
    • “Settling Around the Circuit,” The Recorder, 1989

    ADR Activities and Affiliations

    • Member, American Bar Association, Section of Dispute Resolution, 2006–present
      • Section Chair, 2015–2016
      • Section Executive Committee, 2011–2017
      • Member, Section Council, 2010–2011
      • Co-Chair, Court Committee, 2009–2011
      • Annual Conference Co-Chair, 2010; Program Co-Chair, 2009
      • Member, Quality of Mediation Task Force, 2006–2009
      • Member, Standing Committee on Dispute Resolution Research, 2017–present
    • Member, Board of Directors, Foundation for Sustainable Rule of Law Initiatives, 2014–present
    • Member, San Francisco Planning Committee, Global Pound Conference, 2016–2017
    • Member, Mediation Society of San Francisco
    • Member, Dispute Resolution Section, Bar Association of San Francisco
    • Member, ADR Committee, California State Bar, 1998–2001
    • Member, ADR Subcommittee Working Group on Ethical Standards for Mediators in Court-Connected Mediation Programs, California Judicial Council, 1999–2002
    • Member, Budget Commission Subcommittee on ADR, California Trial Court, 1995–1996

    ADR Training and Presentations

    ADR Training Program Design and Service as Lead Trainer

    • Basic Mediation Training
      • United States District Court, Northern District of California (2001, 2006, 2011, 2015, 2019)
      • United States District Court, Central District of California (2011–2014)
      • Pacific Islands Courts, Saipan, CNMI (2018)
      • Ninth Circuit Judicial Conference (for judges) (2017, 2019)
      • State and Federal Courts, Guam (2011, 2015)
      • Courts of the Republic of the Marshall Islands (2008)
      • Judicial and Legal Training Institute, Malaysia (2007)
      • Institute for the Study and Development of Legal Systems, New Delhi and Mumbai, India (2005)
      • UC Hastings College of the Law (2003–2005, 2009–2010)
      • United States District Court, Middle District of Pennsylvania (2000)
    • Basic Early Neutral Evaluation Training
      • United States District Court, Northern District of California (2005, 2008, 2011, 2015, 2019)
      • Los Angeles County Superior Court (2006)
      • Stanislaus County Superior Court (2006)
      • Fresno County Superior Court (2008)
    • Advanced Mediation Practice Program
      • Facilitation of five ongoing reflective practice mediator peer groups for the U.S. District Court, N.D. California (2004–2020)
      • Facilitation of pilot reflective practice mediator peer group program, Brazil (2021)
      • Facilitation of pilot reflective practice mediator peer group program, India (2021)
    • Specialized ADA Access Mediation Training:
      • United States District Court, Northern District of California (2019–2020)
    • Effective Representation in Mediation Training:
      • UC Hastings College of the Law (2007–2014, 2019–present)
      • California State Attorney General (2010, 2018)
      • Bucerius Law School, Hamburg, Germany (2012)
      • Federal Practice Program, San Francisco (1998)
    • Advanced Mediation Trainings
      • U.C. Hastings College of the Law (2021)
      • Foundation for Sustainable Rule of Law Initiatives, Bangalore, India (2015)
      • United States District Court, District of Idaho, in conjunction with University of Idaho School of Law, separate programs for lawyers and judges (2011)
      • Bucerius Law School, Hamburg, Germany (2003, 2005, 2008)
      • Europa-Universitat Viadrina, Berlin, Germany (2008)
      • United States District Court, Middle District of Pennsylvania (2000)
    • Settlement Conference Skills Training
      • San Francisco Superior Court (2012)
    • Negotiation Training
      • UC Hastings College of the Law (1996–2002)
      • ABA Section of Dispute Resolution, Negotiation Institute (2015–2016)
      • Republic of the Marshall Islands (2008)
    • ADR Program Design: Envisioning, Designing and Implementing Court ADR
      • UC Hastings College of the Law, specialized program for international judges and court administrators (2011, 2012, 2013, 2015, 2017, 2018)

    Selected ADR Presentations

    Mr. Herman has made numerous ADR presentations at events sponsored by, among others, the U.S. Department of Justice, the Federal Judicial Center, the American Bar Association, the State Bar of California, numerous courts and local bar associations, the Association of Corporate Counsel and multiple law schools and universities on topics including the following:

    • Ethics in ADR
    • Handling Emotions Productively
    • Dynamic and Technical Mediation Approaches
    • Communicating Effectively Across Differences
    • Practicum on the Nature and Practice of Civil Discourse (for symposium led by Justice Anthony M. Kennedy in conjunction with the Federal Judicial Center, Sacramento, 2017)
    • The End Game: Brackets, Ranges, Mediator Proposals and Other Mediator Tools
    • Preventing Impasse Through Effective Communication
    • Impasse Breaking Through Negotiation Techniques
    • Using Caucus to Maximum Advantage
    • Toward a Vision of Productive Joint Opening Sessions
    • Skillful Use of Joint Sessions and Caucus
    • Effective Use of ADR in IP and Business Disputes
    • Handling Righteous Indignation: Tools for Mediators and Advocates
    • Addressing Overconfidence and Other Cognitive Traps
    • Approaches to Conflict and Negotiating Styles
    • Difficult Conversations: Making Conflict Productive
    • Defining the Problem in Mediation
    • Effective Representation in Mediation
    • Reflective Mediation Practice
    • Ethical Standards for Mediation Practice
    • ADR Research and Scholarship With a Real-World Focus
    • The Power Paradox
    • Reports on the ABA Task Forces on Improving Mediation Quality and Research on Mediator Techniques
    • Avoiding the Pitfalls of Routinization

    Background and Education

    • ADR Program, United States District Court, San Francisco, 1997–2020
      • Director, 2005–2020
      • Program Counsel, 1997–2005
    • Director, ADR Program, Contra Costa Superior Court, Martinez, 1993–1997
    • Attorney, Kindel & Anderson, San Francisco, 1989–1992
    • Pre-Briefing Settlement Conference Attorney, United States Court of Appeals for the Ninth Circuit, San Francisco, 1985–1989
    • Attorney, Graham & James, San Francisco, 1983–1985
    • J.D., University of California, Hastings College of the Law, 1983
      • Executive Board, Hastings Law Journal
      • Hastings Public Interest Law Program
      • Thurston Honor Society
    • A.B., With High Honors, Sociology, University of California, Berkeley, 1979
    Counsel Comments
     
    • "Howard Herman is simply the best. He has no equal."
      – Bay Area Employment Attorney
    • [Regarding Mr. Herman], "...the Court was able to appoint the most experienced and successful mediator in the District to mediate this case."
      – United States District Court Judge for the Northern District of California
    • "Thank you again for your excellent work on this.  Your persistence and hard work is noted and greatly appreciated."
      – San Francisco Attorney
    • "Thanks Howard for your highly competent handling of this case. I have long recognized, and greatly appreciate, your mediation skills, dedication and talents."
      – Bay Area Employment Attorney
    • “[Mr. Herman] is excellent: earnest, thoughtful, imaginative, relentless.”
    • “Mr. Herman is an excellent mediator. In the course of a short mediation, Mr. Herman deftly made both plaintiff and defendants feel as though their concerns were appreciated, and soberly discussed the risks and benefits of various settlement options. Without his skill and guidance, it’s unlikely the parties would have achieved settlement. Both I and my clients would recommend him for the resolution of any dispute.”
    • “I want to personally thank [Mr. Herman] for [his] hard work and sophisticated efforts assisting the parties in resolving this case. I was greatly impressed by [him].”
    • “[Mr. Herman’s] efforts went far beyond any expectations we would have had for a mediator’s responsibilities. We are truly grateful [for]…the opportunity to have [had him] as our mediator.”
    • “Prior to trial, we had numerous settlement conferences among the parties themselves…All these efforts came to naught. If I had been a betting man, I would have bet 100 to 1 [that] Howard Herman could not have settled the litigation, but he did! He’s a terrific negotiator, smart lawyer and a very pleasant person as well.”
    • “Mr. Herman stuck with it hour after hour, cornering first one and then another of the parties and/or counsel, ironing out the problems and getting to the heart of the obstacles.”
    • “[Mr. Herman] is the finest mediator it has ever been my privilege to meet...I particularly value [his] perspective about being an ethical negotiator.”
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