TAX RELIEF IN DISCRIMINATION CASES This message is intended primarily for those attorneys who practice in the area of employment law where last month’s legislative change reducing the tax consequences on the successful plaintiff for discrimination judgments or settlements should have a salutary effect on the settlement of such claims. Before the American Jobs Creation Act (Act) became law last October 22, it was the position of the IRS that successful plaintiffs in discrimination cases…
MEDIATIONS AND THE FIVE-YEAR RULE The just-published decision of Gonzalez v. County of Los Angeles (No. B168867; October 4, 2004; 2004 DJDAR 12228) clarifies how the order of a mediation at least four years and six months after a case has been filed impacts the requirement that the case be brought to trial within five years of its filing. (See CCP §583.310.) A full discussion of the facts in Gonzalez is not required; it is…
THE LAST-MINUTE DEAL BREAKER After several hours of intense back-and-forth discussions, the mediation process prevails once again and the mediator, with great satisfaction, informs one of the parties that “We’ve got a deal!” only to be told, in response, “Oh, by the way, we can only make payments in installments” or that “We must have a confidentiality clause; substantial liquidated damages for breach of the confidentiality clause and/or a stipulated judgment for an amount far…
MEDIATION CONFIDENTIALITY UPDATED The very recent case of Rojas v. Superior Court (2004) 33 Cal.4th 407 has held that all writings prepared for a mediation are not discoverable. In Rojas, a lawsuit by the owner of an apartment complex against the apartments’ contractors and subcontractors for water leakage that caused toxic mold was resolved through mediation. The settlement included language that the consultants’ mediation reports and photographs were protected by the trial court’s case management…
TO BRIEF OR NOT TO BRIEF Message no. 2 discussed what information should be in a mediation brief and also recommended that the brief be sent “several days before the mediation so that (the mediator) will have the time to digest it and to research important legal issues.” This message covers other important aspects of mediation briefs and makes another request for their early submission. A brief should be filed in every mediation. Attorneys who…
Questions to Consider Before Commencing a Mediation Effective mediation preparation includes asking yourself questions about the status of your own case, the opponent’s case, opposing counsel and the mediator. Specifically, the following inquiries should be covered: What are the strengths of your case? Certainly, you will want to advise the opposition, if there is a joint caucus, and/or the mediator about all of the factual and legal factors why you shall prevail at a future…
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…
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…
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,…
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…