PREPARATION CHECKLIST FOR MEDIATION Because preparation is an essential precondition for a successful mediation, which effort cannot be emphasized enough, I’m revisiting older Mediation Messages that have examined the subject. Evaluate the case – Know the factual and legal strengths and weaknesses of your own case as well as the opponent’s and be prepared to discuss those pluses and minuses with the mediator. Such evaluation should include a review of jury instructions and the leading…
APPEARANCE AT MEDIATION OF PERSONS WITH AUTHORITY TO SETTLE If a civil case has been ordered to mediation, in which the amount in controversy is under $50,000 (Code Civ. Proc. Sec. 1775.5), all parties, including insurance representatives with authority to settle or recommend settlement and attorneys of record, must attend all mediation sessions in person unless excused by the mediator or permitted by the mediator to attend by telephone. (California Rule of Court 3.894; L.A….
SECTION 664.6 REMEDY REVISITED I am revisiting Mediation Message no. 141 (“Creating an Enforceable Section 664.6 Remedy”) because of Mesa RHF Partners, L.P. v. City of Los Angeles (2019) B288355, B288356; 2019 Cal. App. LEXIS 291. In Mesa, in two separate matters, the parties agreed in the settlements that the “The Court shall retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the terms of the Settlement Agreement.” Thereafter, counsel for the plaintiffs filed…
FINANCIAL STATUS OF A PARTY AT MEDIATION Not infrequently, parties (most often a defendant) at a mediation of an employment or business-related dispute, when insurance is not available, will advise me that they are experiencing financial difficulties, and either cannot pay anything close to the expected settlement and/or will need time to pay it. Plaintiffs typically scoff at such claims of “poverty,” offer anecdotal evidence of the opposing parties’ solid financial standing and then request…
RECOVERING MEDIATION FEES AFTER TRIAL Berkeley Cement, Inc. v. Regents of the Univ. of California (2019) 30 Cal.App.5th 1153 (Berkeley Cement) provides that a trial court may award mediation fees as costs, whether the mediation is court ordered or privately agreed to. In that matter, after completing its construction job on the Merced campus of the University of California, Berkeley Cement sued the University for extra work outside of the contract. A jury found that the…
NINTH ANNUAL YEAR-END REVIEW This year’s ten Mediation Messages and one Arbitration Insight include observations about different mediation processes; C.C.P. sec. 664.6; the arbitration of signatories and non-signatories; tax deductions viz a viz sexual allegations and the new Rules of Professional Conduct. Refer to my website (www.marcusmediation.com) for the Mediation Messages and Arbitration Insight discussed below if the following summaries do not suffice. Mediation “A Minor Modification of Mediation Law Is Enacted” (Mediation Message nos….
NEW RULE OF PROFESSIONAL CONDUCT PROHIBITING DISCRIMINATION, HARASSMENT AND RETALIATION Former rule 2-400: California’s new Rules of Professional Conduct, which went into effect on November 1, 2018, include rule 8.4.1, which is the revision of former rule 2-400, which prohibited discrimination, or the knowing permission of, on the basis of race, national origin, sex, sexual orientation, religion, age or disability “in the management or operation of a law practice.” That law practice included the hiring,…
COMMUNICATING WITH CLIENTS – NEW RULE OF PROFESSIONAL CONDUCT Rule of Professional Conduct 1.4 (effective November 1, 2018), which replaces former rule 3-500, maintains the requirement that lawyers must keep clients reasonably informed about significant developments and promptly comply with reasonable requests for both information and significant documents. The new rule adds that the lawyer shall promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent…
A MINOR MODIFICATION OF MEDIATION LAW IS ENACTED Governor Brown signed a bill on September 11, 2018 amending Evidence Code section 1122 and adding section 1129. The totality of the new law requires attorneys to provide clients with a printed disclosure regarding the confidentiality restrictions in the law and to obtain a signed written acknowledgment from the client that he or she has read and understands those restrictions. In part, section 1129 states that “except…
LAWYERS MUST DISCLOSE ADVERSE AUTHORITY TO THE TRIBUNAL On November 1, 2018, new Rules of Professional Conduct become effective for all California lawyers. This Mediation Message analyzes rule 3.3, Candor Toward the Tribunal (i.e., a court, arbitrator, administrative law judge, administrative body acting in an adjudicative capacity and special master; note, “tribunal” does not include mediators). Rule 3.3 replaces rule 5-200. Parts of the new rule in effect follow rule 5-200: subd. (a)(1) prohibits making…