WHATEVER WORKS There are no absolutes as to how a mediation should be conducted – the only caveat is that it should be managed ethically, which includes that the principle of confidentially be strictly followed. Otherwise, whatever works is the appropriate mantra. A facilitative, easy going approach might be called for in one instance, an aggressive, evaluative style in another and a combination of the two methods may be the most effective in a third…
THE MEDIATOR’S PROPOSAL Because of misconceptions regarding a mediator’s proposal, I am taking this opportunity to clarify them. What is a mediator’s proposal? It is just that, a proposal by a mediator for settling litigation between the parties. It does not indicate the mediator’s opinion of the merits of the case. Instead, it reflects his educated guess as to the terms that all of the parties will find acceptable. When is a mediator’s proposal made?…
MEDIATION “SIDEBARS” In the courtroom, a sidebar conference between attorneys and the judge takes place outside the earshot of the jury and, by necessity, the parties. At mediation, the informal conference or sidebar is a discussion between the mediator and one or all of the attorneys outside the presence of the client or clients. It is not unusual for an attorney to request a private conference with the mediator before the mediation has begun to…
PRE-MEDIATION COMMUNICATIONS Either a party’s attorney or the mediator should consider contacting one another prior to the mediation date whenever either believes there is an issue that might impact the mediation process which needs to be discussed beforehand. Such communications are confidential. (See Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 holding that mediation confidentiality applies to any writing or statement that would not have existed but for an impending mediation. A full discussion of…
A CONTRACTUAL MEDIATION PRECONDITION REQUIREMENT AND AN AWARD OF ATTORNEY’S FEES Lange v. Schilling (2008) 163 Cal.App.4th 1412 holds that a party to a contract which provides that to receive attorney’s fees and costs a prevailing party must first attempt to mediate the matter before commencing arbitration or a court action may not receive such fees for failing to comply with that condition precedent. The parties in Lange v. Schilling used a standard California residential…
A GUIDE TO THE LAST SIX YEARS OF MEDIATION MESSAGES Since I’ve covered a lot of ground in the six years that I’ve been writing my “Mediation Messages,” it’s time to review and organize the subjects that have been discussed. Mediation is a dynamic process; there is no pre-determined way in which it should be conducted. Its course and scope depend upon the facts, the parties and, to a lesser extent, the applicable law. (See…
MEDIATION MAXIM With apologies to the Civil Code’s Maxims of Jurisprudence (sections 3509 to 3548), which can provide an entertaining read, I would like to propose maxims that are particularly appropriate for mediation: Settling is better than going to trial (mediation maxim no. 1) – What has always been a generally accepted truism, has been confirmed by a study in the September 2008 issue of the Journal of Empirical Legal Studies that 61 percent of…
CREATING AN ENFORCEABLE MEDIATION SETTLEMENT AGREEMENT First came Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1 which held that a mediator may not report a participating attorney’s misconduct to the trial court. Next was Rojas v. Superior Court (2004) 33 Cal.4th 403 which held that all writings prepared for mediation are not discoverable. And now the Supreme Court once more firmly supports the principle of mediation confidentiality with its July 21, 2008…
JUDICIAL COUNCIL PRELIMINARY DRAFT STANDARDS FOR COURT-CONNECTED MEDIATORS The Judicial Council, which has already established ethical rules for the conduct of court-connected mediations (see Rule of Court 3.850 et seq.; court-connected mediations, as contrasted with private mediations, are supervised by persons selected from a superior court’s list or panel for the mediation of general civil cases), has issued a preliminary draft of model qualification standards for panelists in court-connected mediations. If this draft becomes a…
THE WORDING OF A C.C.P. SECTION 998 OFFER TO COMPROMISE Code of Civil Procedure section 998 offers to compromise are an integral part of the settlement process. Engle v. Copenbarger and Copenbarger (2007) 157 Cal.App.4th 165 offers a well-advised cautionary tale as to how such offers should be worded. In that matter, Engle, a former legal assistant for Copenbarger and Copenbarger (Copenbarger), sued it for both statutory discrimination (sex harassment, sex discrimination and retaliation) and…