MEDIATION CONFIDENTIALITY UPDATE As noted in my March 2018 Mediation Message, a bill was introduced in January in the California legislature to add Evidence Code section 1129 which would require an attorney who represents a client in a mediation to inform the client of the confidentiality restrictions in Evidence Code section 1119. In its present form, SB 954 states that, except in class actions, an attorney who represents a client in a mediation, shall provide the client as…
MEDIATORS’ WISH LISTS I wrote about “Mediator’s Pet Peeves” six years ago in Mediation Message no. 75. Because of the passage of time, I’ve revisited the subject with a more positive approach, thus pet peeves have become a wish list. I wish mediation briefs were filed timely. Having once been a trial lawyer, I know the practice is demanding and there are never enough hours in the day to complete every legal obligation. Nonetheless, please submit…
CONSTRUCTING A BRACKET AT MEDIATION Although brackets are an effective device for mediation negotiations (see Mediation Message no. 80 for a complete discussion of the process), some attorneys hesitate to use them because they’re not experienced composing a bracket. To allay those misgivings, consider the following fool-proof method for easily constructing brackets. Start by picking a mid-point for the bracket. The mid-point, which every opposing lawyer looks at, is the average of the two opposite…
THE STATUS OF MEDIATION CONFIDENTIALITY Since Cassel v. Superior Court (2011) 51 Cal.4th 113 held that all communications by attorneys to their clients at all phases of mediation are confidential, even if the communications constitute legal malpractice, little has happened to change Cassel‘s holding. In immediate response to Cassel, AB 2025 was introduced in 2012 at the California Legislature. In short, it provided that mediation confidentiality was not a shield to an attorney in a legal malpractice action or State Bar disciplinary proceeding. The Legislature…
CREATING AN ENFORCEABLE SECTION 664.6 REMEDY Merely stipulating in a settlement agreement that the trial court “may enter judgment pursuant to the terms of the settlement” (Code of Civil Procedure section 664.6) is not enough to confer jurisdiction on the court over the settlement unless the parties also make a subsequent request conferring jurisdiction while the case is still pending (i.e. before the matter has been dismissed) and that the request is either in a…
THE NEW TAX CODE AND SEXUAL HARASSMENT OR SEXUAL ABUSE SETTLEMENTS On December 22, 2017, the Tax Cuts and Jobs Act was signed into law. Obscured by the politics of that legislation was an amendment (subd. (q)) to 26 U.S.C. § 162 (trade or business expenses) of the Tax Code which states, “No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if…
By Michael Marcus Arbitration Mediation Other Writings
EIGHTH ANNUAL YEAR-END REVIEW This year’s eleven Mediation Messages and one Arbitration Insight include observations about mediation processes, the appealing of arbitration awards, employment law, evidence and civil procedure. Refer to my website (www.marcusmediation.com) for the Mediation Messages and Arbitration Insight identified below if the following summaries do not suffice. Mediation “Basic Introductory Remarks at Mediation” (March; Mediation Message no. 131): If a plaintiff, defendant or representative of either is unfamiliar with the mediation process,…
“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…
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…
“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…