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…
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…
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…
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…
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…
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…
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…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 128 SEVENTH ANNUAL YEAR-END REVIEW This year’s Mediation Messages and Arbitration Insight combine observations about mediation, procedural law that impacts litigation or settlement, expert testimony, rules of evidence at arbitration and trial tactics. Refer to the Mediation Messages identified below on my website (www.marcusmediation.com) if the following summaries are not sufficient. MEDIATION The parties only caucus (April – Mediation Message no. 121): This is a process in which no…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 127 THE MEDIATOR’S PROPOSAL, PART III This Mediation Message is called “The Mediator’s Proposal, Part III” because I’ve written about the process twice before (Messages 51 and 81), but it’s very much worth a third visit because mediator’s proposals, in the intervening period, have become the most effective method of settling cases. What is a mediator’s proposal? Most often, it is a proposal by a mediator to settle litigation…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 126 EXCHANGE MEDIATION BRIEFS There are no compelling reasons for opposing counsel not to exchange mediation briefs. (Okay, there might be one, and I’ll get to that shortly.) Because most attorneys don’t share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don’t know their opponents’ factual and legal…