Mediation Message No. 139

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, 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 the parties at ease and serve as a bridge to the subsequent and more critical legal and factual discussions about their cases.

“Negotiation Phases or Processes at Mediation” (April; Mediation Message no. 132): This Message examined the types of negotiation tools (distributive or marketplace bargaining, brackets, what is your authority?, wouldya-couldya, split the baby, take it or leave it, best and final, baseball, mediator’s proposal, court trial or arbitration and hi-lo) in the order they occur at mediations.

“Don’t Give Up. Don’t Ever Give UpJimmy Valvano” (July; Mediation Message no. 135): Former North Carolina State coach Jimmy Valvano’s uplifting message, “Don’t give up. Don’t ever give up,” which he made about his failing health, is both a wonderful life lesson and an appropriate mantra for mediation when nothing seems to be working.

“You Can’t Always Get What You Want” (August; Mediation Message no. 136): This memorable song title, known by all rock ‘n’ roll fans, is also the perfect reminder at mediation for unrealistic or disappointed litigants when either the facts, the law or an intransigent opponent seem to frustrate their expectations. When that occurs, appropriately observing, “You can’t always get what you want, but if you try sometimes well you might find you get what you need” most always brings the timely realization that, despite existing obstacles, reasonable results are still achievable.

“Mediation Music: The Mediation Concert Hall” (September; Mediation Message No. 137): Popular song titles prove there’s a correlation between the messages in music and all phases of the mediation process.

The Room Where It Happens (November; Mediation Message no. 138): The answer to “What’s the mediator talking about in the other room?” is not very much different from what I talk about in both rooms, with the significant difference being that I emphasize the weaknesses rather than the strengths of the party in whose room I’m in.

Arbitration

“Appealing an Arbitration Award” (October; Arbitration Insight no. 26): The question whether an arbitration award is final or appealable is answered by Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 and Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665. Moncharsh holds, “It is the general rule that, with narrow (statutory) exceptions (such as arbitrators exceeding their powers), an arbitrator’s decision cannot be reviewed for errors of fact or law.” (At p. 11.) Thus, “[a]rbitrators, unless specifically required to act in conformity with rules of law, may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.” (Id. at pp. 10-11.) Cable Connection provides that parties may expressly agree to obtain judicial review of an arbitration award. (At p. 1340.) Pearson Dental Supplies holds that an error of law by an arbitrator in a FEHA case can be reviewed by the trial court, where the employee was subject to a mandatory arbitration agreement. (At pp. 669-670.)

Employment

“Contacts with Current and Former Employees, Officers, Directors and Managing Agents” (May – Mediation Message no. 133): This lengthy Message discusses the law (including Rules of Professional Conduct) which either limits or allows contacts with current and former employees and members of a company’s control group.

Evidence

“The Attorney-Client Privilege Is Now Diminished” (January – Mediation Message no. 129): The simple question in Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (L.A. County) was 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 invoices in inactive matters has, however, much broader implications. As Justice Werdegar warned in her dissenting opinion, “The majority’s suggestion the protective power of the attorney-client privilege under section 954 may not continue to encompass all portions of a document that previously qualified as a ‘confidential communication’ under section 952 is mischievous in the extreme. Following today’s decision, attorneys in this state must counsel their clients that confidential communications between lawyer and client, previously protected by the attorney-client privilege, may be forced into the open by interested parties once the subject litigation has concluded. If a limiting principle applies to this new rule, it is not perceptible to me.” (Id. at p. 305.)

Civil Procedure

“Expert Witness Declarations and Motions for Summary Judgment” (February – Mediation Message no. 130): Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536 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 when an expert disclosure is late or needs to be amended or augmented.

“Trial Courts Are Gatekeepers as to Default Applications” (June – Mediation Message no. 134): 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.

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 2017

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