SUPPORT PEOPLE AT MEDIATIONS I have mentioned before that the presence of supportive third persons at mediations can help youthful and inexperienced litigants deal with the novelty and uncertainty of the situation. I recall one instance where the mother of a plaintiff in his 40’s had common sense that her son clearly lacked. Such support also frees up attorneys to spend more time on the ever changing nature of the negotiations. Nonetheless, attorneys must be…
TAKING CARE OF THE CLIENT AT MEDIATION Every attorney wants a satisfied client at the end of a mediation. But, like every other part of the litigation process, that result is the product of diligent attention to the client’s needs and rights and not just happenstance. The following are some suggestions on how to achieve such bliss: • Prepare the Client for the Mediation – Tell the client how a mediation is conducted and what…
ENFORCEMENT OF MEDIATION SETTLEMENT AGREEMENTS (PART II) In Mediation Message No. 21 (December 2004), I observed that Fair v. Bakhtiari (2004) 122 Cal.App.4th 1457, in the absence of specific language that the parties intended their mediation settlement to be binding, had nonetheless given a very liberal interpretation to its enforceability where other language in the agreement indicated that the parties “in effect” wanted such a result. (The opinion held that the settlement at issue, which…
Why Mediations Succeed and Sometimes Do Not Mediations are an extremely effective and cost-saving means of resolving both the simplest and most complicated of lawsuits. Occasionally, however, the parties are unable to resolve their differences. This message looks at the reasons why mediations most often work and then occasionally do not. A. Why Mediations Work The attorney was prepared. The attorney talked to his or her client about the purpose of mediation, the facts and…
HOSPITAL LIENS REQUIRE AN UNDERLYING DEBT Hospital liens in personal injury litigation impact settlement negotiations, since both plaintiffs and defendants take them into consideration in determining what sums the plaintiffs shall net after such liens have been paid off. Hospitals, too, rely on these liens to recover the difference between what they are paid by patients and/or their carriers and the reasonable value of the medical services provided. Parnell v. Adventist Health System/West (2005) 35…
SOMETIMES A CLIENT NEED NOT SIGN THE SETTLEMENT Defense lawyers in accident cases often appear at mediations without their clients or adjusters. While this practice technically violates rules requiring the attendance at court-ordered mediations of both the client and a person with full authority to settle the case (see Rule of Court 1634 and Los Angeles Superior Court Rule 12.15), an equally significant issue is whether the client’s or adjuster’s absence has frustrated the opportunity…
THE ROLE OF MEDIATORS AND “PARTICIPANT” CONFIDENTIALITY Mediation places decision-making in the hands of the parties rather than with the mediator, a proposition strongly reaffirmed by Travelers Casualty and Surety Company, et al. v. Superior Court (2005) 126 Cal.App.4th 1131(Travelers Casualty). In the Roman Catholic Diocese of Orange child sex abuse litigation, the Los Angeles Superior Court judge appointed by a stipulated order to mediate the multiple lawsuits, after listening to presentations from the plaintiffs…
TAX RELIEF IN DISCRIMINATION CASES, PART II Mediation message no. 20 discussed the implications of the American Jobs Creation Act of 2004 (Act) on the tax consequences in discrimination judgments and settlements. Commissioner of Internal Revenue v. Banks (2005) 2005 U.S. Lexis 1370, 73 U.S.L.W. 4117 provides finality to the pre-Act split of authority on the same subject. The “Civil Rights Tax Relief” section of the Act provides that plaintiffs in discrimination cases, retroactive to…
DISCUSSING MEDIATION AND SETTLEMENT WITH CLIENTS Ethical standards exist in California as to various phases of mediation, including the duty to appear (messages 7 and 11), to maintain confidentiality (messages 11 and 17), to avoid conflicts of interest where multiple clients exist (Rule of Professional Conduct 3-310) and to provide notice and obtain waivers when aggregate settlements are involved (message 4). Left uncovered are whether attorneys have an obligation to advise clients about mediation opportunities…
ENFORCEMENT OF MEDIATION SETTLEMENT AGREEMENTS (A hearing was granted in Fair v. Bakhtiari. My discussion of the Supreme Court’s opinion in the matter is at Message no. 37.) Mediation messages 11 and 17, in combination, discussed the legal principle that all oral and written mediation communications, including settlement discussions, are confidential, pursuant to Evidence Code section 1119, Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 and Rojas v. Superior Court (2004) 33…