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…

10 Aug: Mediation Message No. 3

OPENING STATEMENT V. PRELIMINARY REMARKS After the mediator’s introductory comments at the beginning of a mediation, counsel are given the opportunity to make an opening statement. Because the purpose and method of this presentation are both similar to and dissimilar from an opening statement at trial, I prefer to call them preliminary remarks. An opening statement at trial is supposedly not for argument; instead, it is the time for counsel to tell the judge or…

10 Aug: Mediation Message No. 2

THE MEDIATION BRIEF A mediation brief should be prepared with the same care as any Superior Court motion because the mediator, while not having the capacity to issue final orders, can nevertheless be very influential. Therefore • Indicate whether or not the brief is confidential; • Provide important case status information on the first page (e.g., the trial date, the results or future date of any summary judgment motion, the status of pending discovery, etc.);…

10 Aug: Mediation Message No. 1

CLIENT PREPARATION Intensive client preparation for mediation is frequently overlooked. While attorneys would not bring a client to a deposition or trial without going through the possible subject matter, questions and exhibits to be covered as well as discussing how to answer questions, the tactics and methods of opposing counsel and the policies of the trial judge, there seems to be a more relaxed attitude toward client preparation when mediation is concerned. Although mediation is…