APPROACH MEDIATION AS IF IT WERE A COURT TRIAL Since most civil matters settle rather than are tried, the mediation of those cases assumes critical importance because it becomes, in effect, your “day in court.” Thus, approach this phase of the litigation process as if it were a court trial, rather than just another settlement conference, because there is a direct correlation between extensive mediation preparation and the realization of expectations. The following are recommended…
LIMITATIONS ON TRIAL COURTS IN ORDERING MEDIATIONS Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, which holds that a trial court can not order a party, over its objection, to participate in and pay for a mediation (id. at p. 541), provides a good opportunity to review the powers of and limitations on trial courts regarding mediations, both private and court-ordered. In Jeld-Wen, a multi-party construction defect case, a trial judge proposed a case…
FEE SHARING BY ATTORNEYS WITH CLIENTS IN EMPLOYMENT CASES The propriety of attorneys sharing their court-awarded fees in employment cases with their clients is an appropriate subject for a mediation message because such fees are often a factor in the settlement of employment cases. On its face, Rule of Professional Conduct 1-320(A), which states that “Neither a member nor a law firm shall directly or indirectly share legal fees with a person who is not…
Mediation Confidentiality Applies to any Writing or Statement that would not have Existed but for a Mediation Communication Wimsatt v. Superior Court (June 20, 2007) no. B196903, 2007 DJDAR 8961, which not surprisingly upholds the concept of mediation confidentiality, is an interesting case nonetheless for the breadth given such confidentiality and, at the same time, its invitation to the legislature that it create exceptions to the concept. Wimsatt and his law firm, Magaña, Cathcart &…
Attendance, Participation Lists and Mediation Statements With little advance warning or fanfare, the Judicial Council reorganized, renumbered and, in some instances, amended the Rules of Court on January 1, 2007. The most dramatic changes in the standards applicable to court-ordered mediations (3.850 through 3.878) are in Rule of Court 3.874, which covers attendance at mediations, the serving of participation lists and the submission of mediation statements. Attendance. Former Rule of Court 1634 was quite simple;…
Enforcing Mediation Agreements (Part IV) Not surprisingly, the California Supreme Court held on December 15, 2006 in Fair v. Bakhtiari, no. S129220, 2006 DJDAR 16184, 2006 WL 3627208, that a settlement agreement reached through mediation is enforceable and not confidential if it incorporates the language of Evidence Code section 1123(b). (I predicted this result November 2005 in message no. 28.) In Fair, the parties concluded a mediation with a document captioned “Settlement Terms.” The final…
GUIDELINES FOR CONDUCTING THE JOINT CAUCUS Last month’s Mediation Message discussed the considerations for holding or not holding a joint caucus. This message looks at the guidelines when a joint caucus is going to take place. • Who should be present? Ideally, all parties, attorneys and persons with settlement authority should be present but, occasionally, the circumstances (such as extreme hostility between the parties) may dictate that more can be accomplished if only the attorneys…
THE JOINT CAUCUS – WHEN SHOULD IT TAKE PLACE? At the end of a successful mediation, in which the participants had been separated during the entire process, the adjuster, who was from the East Coast, was surprised that there had been no joint caucus because it was his experience that they were mandated. That comment is the basis for this message which first reaffirms that every mediation should be approached as a unique event because…
MISREPRESENTATIONS AT SETTLEMENT V. AT MEDIATION Misrepresentations to a settlement judge can result in a contempt citation or discipline. The question for this Mediation Message is what effect do confidentiality standards have on the reporting of misconduct during mediations? In In the matter of Jeffers (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 211, the attorney, knowing that his client was dead, told a mandatory settlement judge that the client did not believe he…
WHO SHALL BE THE CLIENT’S REPRESENTATIVE? Quite often, attorneys have no control over who shall be the party’s representative at mediation, especially if the litigant is an individual or the involved business is small. But when extenuating circumstances prevent the business owner from appearing or the entity is large enough to have multiple decision-makers, the attorney should take an active part in deciding who the representative shall be. The following two factors are considerations when…