10 Aug: Mediation Message No. 14

Who Goes First? Message no. 13 discussed the issues to consider in deciding what an opening offer or demand should consist of. This message looks at which side should make that first move. Typically, plaintiffs and defendants appear to be comfortable with the former making a demand and the latter responding to it. Both sides, though, should consider the advantages and disadvantages of sticking to or deviating from this order rather than maintaining the status…

10 Aug: Mediation Message No. 13

The Opening Offer The opening offer or demand, for obvious reasons, ranks far below any final settlement figure in importance. Nevertheless, it is a critical step in the mediation process and can have an impact on whether the matter settles and, if so, at what amount. Pepperdine Law School’s Straus Institute for Dispute Resolution teaches that the opening offer falls within four self-explanatory zones: “zone of agreement,” “reasonable,” “credible” or “insult.” This message discusses some…

10 Aug: Mediation Message No. 12

Mediation is a Dynamic Process Mediation includes different approaches and styles, such as facilitative and evaluative mediation and distributive and integrative bargaining. Mediators, in facilitative negotiations, do not impose their opinions concerning the facts, law or potential outcome on the participants (as is done in an evaluative method), preferring instead to use non-coercive means in arriving at a resolution. Distributive bargaining is competitive in nature because the parties are usually vying over a fixed asset,…

10 Aug: Mediation Message No. 10

THE “SMOKING GUN” Occasionally attorneys in a mediation possess undisclosed evidence which they believe would make a substantial difference in the outcome of the case if it were to be used at trial. The question confronting these attorneys is whether to divulge this “smoking gun” at the mediation or reserve it for trial, if settlement efforts should fail. There are no clear answers to this issue, but the following factors may help in resolving this…

10 Aug: Mediation Message No. 9

DEMONSTRATIVE EVIDENCE No experienced lawyer would go to trial without demonstrative evidence or illustrative aids that effectively emphasize the critical factual or legal parts of his/her case. Such evidence can clarify or amplify the testimony of witnesses, make abstract concepts real and more vivid and make a case look stronger than it might really be. It is for those same reasons that demonstrative evidence should be used at mediations. Whether the matter involve a business…

10 Aug: Mediation Message No. 8

JURY INSTRUCTIONS While sound preparation by plaintiffs and defense lawyers for mediation, motions and trial has always included a review of the BAJI instructions for the elements of the causes of action to be litigated, the creation of the new Judicial Council of California Civil Jury Instructions (CACI) makes that review even more critical. These new instructions, which are not copyrighted, can be accessed on both LexisNexis and Westlaw, although the LexisNexis site is much…

10 Aug: Mediation Message No. 7

APPEARANCES AT MEDIATIONS Although the law is clear, at least as far as court-ordered mediations are concerned, that all counsel and parties (including insurance representatives) shall attend the mediation (see below, occasional non-compliance with this requirement can impede settlement. It is therefore advisable when a necessary person to the mediation cannot be present because of employment, family or geographical circumstances, that counsel for that party or entity advise the mediator of the absence and ask…

10 Aug: Mediation Message No. 6

RECOVERY OF MEDIATION COSTS If a case does not settle at court-ordered mediation, a party may be awarded its mediation costs, including the fees paid to consultants and retained experts, if they were “reasonably related to the conduct of the litigation,” as required by Code of Civil Procedure section 1033.5, subdivision (c)(2). (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202). In that personal injury action, the defendants refused to settle at a court-ordered mediation and thereafter…

10 Aug: Mediation Message No. 5

BODY LANGUAGE Kinesics, the science of body language, provides evidence about how the human mind processes information. It is very useful at trial where the physical cues of the prospective jurors, witnesses and judge might indicate how each is responding to you, your opponent and the facts at hand, especially when that person’s verbal responses are inconsistent with what his/her body is saying. As an example, during voir dire, a juror might answer that she…

10 Aug: Mediation Message No. 4

AGGREGATE SETTLEMENTS An attorney who represents more than one party (plaintiffs or defendants) in the same action must not only be certain that he/she has advised those multiple clients in writing of any potential or actual conflict that exists between them and then have these clients waive that conflict in writing (Rule of Professional Conduct 3-310(C) but also, when later resolving that same case, “not enter into an aggregate settlement of the claims of or…