MICHAEL D. MARCUS’ MEDIATION MESSAGE NO. 33 BREAKING AN IMPASSE AT MEDIATION Occasionally, during a mediation, the discussions cease being fruitful because of unrealistic expectations, a disagreement over material facts, bad timing (incomplete discovery; an impending motion for summary judgment), the failure of one side to have sufficient settlement authority or the absence of an essential party. This message discusses ways of breaking an impasse when the expectations of the parties (usually over the monetary…
By Michael Marcus Uncategorized
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 11 THE FAILURE TO APPEAR OR COOPERATE AT MEDIATION It is very unusual for an attorney or party at either a consensual or court-ordered mediation not to appear at a subsequent mediation. (Message no. 7 reviewed the law and court rules which mandate that counsel, parties and individuals with settlement authority must attend mediations, unless excused.) The failure of a party or attorney to not cooperate, once present, is…
By Michael Marcus Uncategorized
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 53 WHY ARE WE HERE? The sine qua non for an effective mediation, as I’ve mentioned many times, is preparation. But good faith and flexibility by the parties, although not as important, are also integral to resolving cases. One aspect of good faith by parties in mediations is that they shall be willing to consider all reasonable options and arguments presented by the mediator. Flexibility goes hand-in-hand with good…
By Michael Marcus Uncategorized
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 76 JUDGE KOZINSKI IS NOT A FAN OF MEDIATION Ninth Circuit Chief Judge Alex Kozinski once again has established his credentials as a legal iconoclast. In Nordyke v. King (9th Cir. 2012) 676 F.3d 828 (Nordyke II), he issued a short but sharp rebuke of the en banc panel’s order that the parties mediate a long-running dispute concerning the right to bear arms. Nordyke I involved an Alameda County ordinance…
By Michael Marcus Uncategorized
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 75 MEDIATORS’ PET PEEVES Last month I wrote about attorneys’ pet peeves concerning mediators. This month, as promised, I’m commenting on gripes that mediators have regarding what lawyers do or don’t do at mediation. Not filing a timely mediation brief – It is not uncommon for mediation briefs to be submitted the afternoon before or the day of the mediation. The law is a demanding companion, but the sooner…