MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 73 THE SECOND ANNUAL YEAR-END REVIEW Like last year, I’m summarizing the mediation and arbitration topics I wrote about in 2011. Before discussing them, thank you for your support in helping me to be honored by the Daily Journal for the fourth time in the last five years as a Top 50 California Neutral. Mediation confidentiality was the big news this year. Cassel v. Superior Court (2011) 51 Cal.4th…
MICHAEL MARCUS’S MEDIATION MESSAGE NO. 72 MEDIATORS ARE NOT POTTED PLANTS Mediation confidentiality, which allows attorney incompetence and insolence to go unchecked until the Legislature says otherwise (see Cassel v. Superior Court (2011) 51 Cal.4th 113), can create occasional problems for mediators. Although we cannot report attorney misconduct to the court (see Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1) and have no power to ensure the substantive fairness of an agreement…
MICHAEL MARCUS’S MEDIATION MESSAGE NO. 71 THE LOCATION OF THE TRIAL, SECTION 998 OFFERS AND DAMAGES Last month, I discussed a study in the Journal of Empirical Legal Studies which found that there is a high incidence of decision-making error by both plaintiffs and defendants in rejecting settlement proposals and going to trial or arbitration. Other interesting findings in that study are the impact of the type of trial and statutory C.C.P. sec. 998 offers…
MICHAEL MARCUS’S MEDIATION MESSAGE NO. 70 SETTLING RATHER THAN GOING TO TRIAL MAKES STATISTICAL SENSE A study (“Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations”) in the Journal of Empirical Legal Studies, vol. 5, issue 3, pages 551-591 (2008), which analyzed 2,054 California trials between November 2002 and December 2005, involving 5,116 attorneys, concluded that there is a high incidence of decision-making error by both plaintiffs and defendants…
MEDIATION CONFIDENTIALITY OVERVIEW Because of the recent Cassell v. Superior Court (2011) 51 Cal.4th 113 decision, it is timely and appropriate to review all of the Supreme Court’s rulings on mediation confidentiality. Mediators, pursuant to Evidence Code sections 1119 and 1121, may not report attorney misconduct or bad faith to jurists who have the underlying cases on their calendars. (Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1.) Foxgate was the first…
FACEBOOK AND FEDERAL MEDIATION CONFIDENTIALITY If you saw “The Social Network,” skip this introduction; if not, and you’ve been hiding in a cave for the last few years, be advised that the Winklevoss twins and a third party sued Mark Zuckerberg, the Facebook founder, for allegedly stealing the concept from them. In turn, Facebook sued the Winklevosses. A California Northern District Court judge ordered everyone into mediation, during which the participants signed a confidentiality agreement…
BE CAREFUL WHAT YOU PLEAD This month’s Mediation Message is about the conclusive effect of statements in pleadings, which is relevant to mediations because the consequences of careless language in complaints and answers can have an impact on settlement discussions. The well-recognized concept of judicial admissions was raised anew in Dang v. Smith (2010) 190 Cal.App.4th 646 which reminded that “statements in a pleading are always admissible against the pleader to prove the matter asserted—as…
THE COURT STAYS THE COURSE ON MEDIATION CONFIDENTIALITY In Cassel v. Superior Court (2011) S178914, 2011 DJDAR 658, the California Supreme Court was faced with two clear options – continue to hold that mediation confidentiality is to be liberally construed despite the surrounding circumstances or find that confidentiality should not be used to shield negligent attorneys from malpractice suits. The Court chose to stay the course and held that mediation confidentiality has few exceptions. In…
A YEAR-END REVIEW I thought it would be timely to summarize the mediation topics in alphabetical order that I’ve written about this year and also provide a heads up about an important development in mediation confidentiality that will take place early in 2011. Before discussing them, thank you for your support in helping me be honored by the Daily Journal for the third time in the last four years as a Top California Mediator-Arbitrator. Compelling…
THE EXPEDITED JURY TRIAL ACT Since the Expedited Jury Trial Act (Act; Code of Civil Procedure §§ 630.01 – 630.10) goes into effect on January 1, 2011, and the Judicial Council has recently created enabling procedures (Rules 3.1545 et seq.) which may have been underpublicized, I thought it would be helpful to summarize some of the Act’s provisions for those who may want to risk the uncertainty of trial, albeit now in a truncated form:…