Mediation Message No. 128



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 ( if the following summaries are not sufficient.


The parties only caucus (April – Mediation Message no. 121): This is a process in which no attorneys are present. It should be used sparingly where the mediator believes a meeting between responsible and mature principles can “clear the air.”

Binding mediation (May- Mediation Message no. 122): This is a procedure in which a mediator, if the mediation is not successful, can become an arbitrator. It can occur if the parties select the neutral beforehand to mediate the dispute and, if it is not resolved, agree that the neutral can render a final and binding award. Alternatively, the parties may choose, after the mediation process has broken down, to have the neutral issue an award.

Mediation briefs should be shared (October – Mediation Message no. 126): In most instances, mediation briefs should be shared before the commencement of mediation. The only sound reason for not exchanging a mediation brief is if it contains either a fact (perhaps a smoking gun) or a legal tactic (discovery or motion) that should be held in abeyance. But that’s easily resolved; if you don’t want the opponent to know about facts, legal theories or arguments that are best held in reserve, put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum.

Mediator’s proposals (November – Mediation Message no. 127): This message discussed what the mediator’s proposal is, when it should be made, whether it should be made if a party does not consent to the process, whether it should be oral or written, when it should be answered, whether it is binding, what happens if both parties don’t accept it and the options if both parties don’t accept it.


Expedited jury trials (January – Mediation Message no. 118): The voluntary Expedited Jury Trial Act (Code of Civil Procedure §§ 630.01 – 630.10)  is now permanent  and mandatory until January 1, 2019, where the amount in controversy does not exceed $25,000, subject to the following nine exceptions: punitive damages are sought; damages in excess of insurance policy limits are sought; a party’s insurer is providing a defense subject to a reservation of rights; the case involves a claim reportable to a governmental entity; the case involves a moral turpitude claim that may affect an individual’s licensing; there is a claim of intentional conduct; one of the parties has filed a pleading that changes the jurisdictional classification from limited to unlimited; there is a claim for attorney’s fees, unless those fees are pursuant to a contract or, lastly, the court finds good cause not to require an expedited trial.

The five-year rule (February – Mediation Message no. 119): Gaines v. Fidelity National Title Insurance Co. (2016) 62 Cal4th 1081 is a primer on the necessary steps to prevent the running of the five-year trial rule and resulting dismissal pursuant to C.C.P. sec. 583.310. Unlike mediation, which the majority in Gaines found to be an event inside a lawsuit and, therefore, does not abate a proceeding, the case holds that contractual arbitration tolls the five-year period under section 583.340, subd. (b).

Denials of RFAs and their consequences (June – Mediation Message no. 123): Grace v. Mansourian (2015) 240 Cal.App.4th 523 discusses the consequences of failing to admit certain facts prior to trial despite their obvious truth. The lesson of this case is that a party, if it denies RFAs, must be prepared to present enough evidence at trial on the facts denied to be able to argue credibly to the court, in opposition to a subsequent motion for costs and fees, that he or she believed they would prevail on the facts at issue.

Significant policy and procedural requirements of RFAs (with statutory can case law support )(September – Mediation Message no. 125): RFAs are used to expedite the trial process; their scope is broad; the responding party has a duty to investigate RFAs; responses to RFAs must be specific; a party may withdraw or amend an admission in response to an RFA only on leave of court after notice to all parties; the specific ground for an objection to an RFA shall be set forth clearly in the response; a requesting party may move for a further response if an answer is evasive, incomplete, without merit or too general; a party waives all objections to the RFAs, including claims of privilege or work-product, for failing to respond timely; on motion, the court may relieve a party from waiver if certain showings are made; RFAs are admissible at trial if the moving party requests an order that the requests be deemed admitted; the “deemed admitted motion” shall be denied if the court finds that the responding party served, before the hearing on the motion, a proposed response to the RFAs that is substantially code compliant; deemed admitted matters are conclusively established and are not subject to being contested through contradictory evidence; where a “deemed admitted” motion has been granted, the court must impose a monetary sanction whose failure to serve a timely response to the RFAs necessitated the motion and, unless the court finds the party who denied the requests “had reasonable ground to believe [he or she] would prevail on the matter” or “[t]here was other good reason for the failure to admit,”  it must impose monetary sanctions for denial of RFAs found true at trial.


The empty chair at trial (March – Mediation Message no. 120): Diamond v. Reshko (2015) 239 Cal.App.4th 828 advises how a trial shall be conducted where a defendant settles with the plaintiff before trial and then agrees to participate in the trial involving a co-defendant. Diamond found it was not improper for the plaintiffs to require Yellow Cab, the settling party, to participate in the trial to prevent the Reshkos, the nonsettling defendants, from making an “empty chair” argument by ascribing “fault to an actor who is not present to defend himself.” (Id. at p. 844.)

Expert testimony and the hearsay rule (August – Mediation Message no. 124): In People v. Sanchez (2016) 63 Cal.4th 665, a unanimous Supreme Court clarified what information and facts experts rely upon are and are not subject to a hearsay objection. Sanchez holds the hearsay rule applies to case-specific out-of-court statements considered by experts as true and accurate and relied upon to support their opinions, because such statements are being admitted for the truth. (Id. at p. 686.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Id. at p. 676.) (Note: Although Sanchez is a criminal case, its holding applies to both criminal and civil cases. In criminal cases, expert testimony must also satisfy the Sixth Amendment’s Confrontation Clause.)


Rules of evidence at arbitration (July – Arbitration Insight no. 25): The applicable arbitration agreement, if there is one, should govern the manner in which the arbitration is to be conducted. If there is neither an agreement nor specified procedure, the parties should decide how they want the arbitration to be administered. If they cannot agree, arbitrators should advise the parties before the arbitration begins that the hearing, including the application of the rules of evidence, can be formal or informal; it is up to the individual parties to decide whether they wish to object to evidence and, if there are objections, the arbitrators will rule on all objections as they are made.

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, December 2016

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