Mediation Message No. 73



Like last year, I’m summarizing the mediation and arbitration topics I wrote about in 2011. Before discussing them, thank you for your support in helping me to be honored by the Daily Journal for the fourth time in the last five years as a Top 50 California Neutral.

Mediation confidentiality was the big news this year. Cassel v. Superior Court (2011) 51 Cal.4th 113 held that attorneys cannot be sued for what they said or did in a mediation. The Ninth Circuit provided its own spin on mediation confidentiality by holding in The Facebook, Inc. v. Pacific Northwest Software, Inc. (9th Cir. 2011) 640 F.3d 1034 that parties can expressly agree to extend confidentiality to mediations.

Mediation Message No. 67 reminded trial lawyers to be careful about the language in their pleadings because “statements in a pleading are always admissible against the pleader to prove the matter asserted—as is any other statement by a party.” (Dang v. Smith (2010) 190 Cal.App.4th 646.)

Mediation Messages 70 and 71 summarized findings in an empirical study in the Journal of Empirical Legal Studies that there is a high incidence of decision-making error by both plaintiffs and defendants in rejecting settlement proposals and going to trial or arbitration.
I became a horticulturist in Message no. 72 by noting that even though mediators cannot report misconduct to the court, they are not potted plants and should not allow egregious misbehavior and malpractice to occur in their presence.
Arbitrator disclosure requirements were a major focus of the appellate courts this year. La Serena Properties v. Weisbach (2010) 186 Cal.App.4th 893 held that because judicial immunity applies to an arbitrator’s failure to make adequate disclosures of potential conflicts of interest, the exclusive remedy for that failure is to set aside the award. Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40 held that part-time lawyer-arbitrators should disclose their legal involvement in business interests similar to the facts of the arbitrated matter. Rebmann v. Rohde (2011) 196 Cal.App.4th 1283 held that an arbitrator’s disclosure obligation does not extend to information about the arbitrator’s background that has nothing to do with the facts of the case.
In a non-disclosure case, Hoso Foods, Inc. v. Columbus Club, Inc. (2010) 190 Cal. App.4th 881 held that the Code of Civil Procedure does not suggest that arbitrators have the power to preclude a corporate party from designating a representative to attend arbitration proceedings.
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 2011

Please visit my website at for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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