18 Dec: Mediation Message No. 138

“THE ROOM WHERE IT HAPPENS” The title of this Mediation Message comes from a song from the musical “Hamilton,” where Aaron Burr complains that no one knows what happened when Hamilton, Jefferson and Madison got together in a room and agreed to Hamilton’s plan to have the national government take over and pay the states’ debts, while Jefferson and Madison obtained the national capital (the District of Columbia) for the South. Burr then sings, “No…

18 Dec: Mediation Message No. 137

MEDIATION MUSIC: THE MEDIATION CONCERT HALL There is a correlation between popular song titles and what happens at mediations. Consider the following: “Welcome to my world,” Dean Martin 1958. Mediators ask the parties and their counsel to come to mediation and to trust the process. “I’m a believer,” the Monkees 1966. That comment is music to a mediator’s ears. “Take this job and shove it,” Johnny Paycheck 1977; “Workin’ for a livin’,” Huey Lewis and…

18 Dec: Mediation Message No. 136

“YOU CAN’T ALWAYS GET WHAT YOU WANT” “You can’t always get what you want You can’t always get what you want You can’t always get what you want But if you try sometimes well you might find You get what you need” (From “You can’t always get what you want,” lyrics by Keith Richards and Mick Jagger, 1969.) This memorable refrain, known by all rock ‘n’ roll fans, is also the perfect reminder at mediation…

18 Aug: Mediation Message No. 135

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 135 “DON’T GIVE UP. DON’T EVER GIVE UP.” – JIMMY VALVANO Intensive preparation is a sine qua non for a successful mediation. (See Mediation Messages 42 and 111 for preparation elements.) After that, it’s important that all participants, including the mediator, maintain a positive attitude throughout the mediation’s ups and downs, which will surely occur. Mediation can produce a combination of emotions – some positive and some not so…

18 Aug: Mediation Message No. 134

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 134 TRIAL COURTS ARE GATEKEEPERS AS TO DEFAULT APPLICATIONS Grappo v. McMills (2017) 11 Cal.App.5th 996 sends a strong statement to both attorneys and, in particular, the trial courts that applications for default judgments must be closely scrutinized and that only appropriate claims should be approved. In Grappo, appellant Donald Grappo, representing himself, filed a complaint alleging ten causes of action, seven of which were in one paragraph, the…

18 Aug: Mediation Message No. 133

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 133 CONTACTS WITH CURRENT AND FORMER EMPLOYEES, OFFICERS, DIRECTORS AND MANAGING AGENTS Because contacts with current and former employees and members of a company’s control group are always an important (and often misunderstood) issue in all types of litigation, I am summarizing the status of that law. (This is, by far, the longest Mediation Message I’ve ever written but once I started, I couldn’t stop.) Before present Rule of…

18 Aug: Mediation Message No. 132

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 132 NEGOTIATION PHASES OR PROCESSES AT MEDIATION The types of negotiation tools used at mediations go through stages. This Mediation Message examines each of those processes in the order that they usually occur. Distributive or marketplace bargaining – In most instances, mediations start with distributive or marketplace bargaining, in other words, the parties exchange single numbers, a process very similar to how people buy houses and cars. Generally, the…

18 Aug: Mediation Message No. 131

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 131 BASIC INTRODUCTORY REMARKS AT MEDIATION If a plaintiff, defendant or representative of either is unfamiliar with the mediation process, I begin their separate caucus by talking about confidentiality, my neutrality and the uncertainty and expense of litigation. These introductory comments are intended to put them at ease and serve as a bridge to the more critical discussions about the cases, themselves. The comments are, as follows: Mediation confidentiality…

18 Aug: Mediation Message No. 130

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 130 EXPERT WITNESS DECLARATIONS AND MOTIONS FOR SUMMARY JUDGMENT Perry v. Bakewell Hawthorne, LLC (Cal. Supreme Court Feb. 2017) no. S233096, 2017 Cal. LEXIS 1351 holds that the exclusionary rule for expert witness declarations that do not meet disclosure requirements applies to summary judgment as well as the trial phase. The case is also a valuable reminder about the importance of admissible evidence at MSJs and the remedies available…

18 Aug: Mediation Message No. 129

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO.  129 THE ATTORNEY-CLIENT PRIVILEGE IS NOW DIMINISHED The simple question in Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (L.A. County) is whether invoices by an outside law firm to a governmental agency are covered by the attorney-client privilege and, therefore, exempt from disclosure under the California Public Records Act (PRA). L.A. County’s supposedly narrow holding that the privilege may not extend to such…