MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 85 THE FRAUD EXCEPTION TO THE PAROL EVIDENCE RULE Occasionally, I’ve used Mediation Messages to write about topics that can impact trial issues and thus the quality of cases at mediation. (See Mediation Message no. 77 concerning the work-product doctrine and no. 67 regarding the conclusive effect of statements in pleadings.) Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, which re-examined the fraud exception…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 84 BINDING MEDIATION You might have heard of binding mediation in which a neutral, by agreement of the parties, makes a binding determination regarding the dispute when mediation has been unsuccessful. You might even have thought about it. This Mediation Message, prompted by Bowers v. Lucia Companies (2012) 206 Cal.App.4th 724, which sanctions the use of binding mediation, recommendsthat before the mediation part of the process begins, the mediator-arbitrator…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 83 THE EVOLUTION OF THE JOINT CAUCUS No part of the mediation process has evolved more in the eleven plus years that I’ve been involved than the joint caucus. When I trained as a mediator, I was told that every mediation should begin with a joint caucus; now, it is rare for mediations to begin in this fashion. That change is reason to give a fresh look at the…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 82 THE THIRD ANNUAL YEAR-END REVIEW For the third year in a row, I’m reviewing the mediation and arbitration topics I wrote about in 2012. Before discussing them, thank you for your support in helping me to be honored as a Top 50 California Neutral by the Daily Journal for the fifth time in the last six years. I wrote about arbitration issues for the first three months of…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 81 THE MEDIATOR’S PROPOSAL I first wrote about mediator’s proposals in June 2009. (See Mediation Message no. 51.) It’s appropriate to discuss this process once again, and in greater detail, since it is an integral part of the settlement process. What is a mediator’s proposal? Most often, it is a proposal by a mediator to settle litigation between the parties. (Much less frequently, it is used to break an…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 80 BRACKETS No aspect of mediation is more misunderstood than the use of brackets (less commonly known as “ranges”) in negotiating settlements. As a result, I’m using this message to clarify that process. (By the way, any similarity between mediation brackets and NCAA basketball tournament “bracketology” is purely coincidental and unintended.) What are brackets? Brackets are the use of two contrasting numbers to create a range for continued negotiations….
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 79 SETTLING RATHER THAN GOING TO TRIAL MAKES STATISTICAL SENSE, PART II In Mediation Message No. 70 (July 2011), I discussed a 2008 empirical study of 2,054 California trials between 2002 and 2005 which concluded there is a high incidence of decision-making error by both plaintiffs and defendants in rejecting settlement proposals and going to trial or arbitration. 61 % of the time plaintiffs received less or equal at…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 78 DISCUSS FINANCIAL COSTS OF LITIGATION WITH CLIENTS BEFORE MEDIATION As I’ve mentioned many times, preparation is the sine qua non for achieving mediation goals. One part of that preparation is to discuss with clients before (and not during) mediation the financial costs of ongoing discovery, possible motions and eventual trial or arbitration if the case should not settle. In non-contingency fee representation, pre-trial and trial costs can be…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 77 WORK PRODUCT PROTECTION OF WITNESS STATEMENTS The topic of this Mediation Message, the application of the work product doctrine to attorney obtained witness statements and to the identification of those witnesses, could have been the subject of an Arbitration Insight, but is discussed here because knowledge, or lack thereof, of an opponent’s case is equally important to settling cases. Coito v. Superior Court (2012) 54 Cal.4th 480 holds,…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 74 ATTORNEYS’ PET PEEVES I asked lawyers with whom I regularly mediate what “pet peeves” they have about the mediation process. Their responses, which I’ve been assured are only about other mediators and not me, provide valuable reminders about what attorneys want out of mediation; their thoughts also provide me the opportunity to comment briefly about their complaints. “Not respecting a lawyer’s evaluation. Harping on ‘risk’ in general, without…