Mediation Message No. 82



For the third year in a row, I’m reviewing the mediation and arbitration topics I wrote about in 2012. Before discussing them, thank you for your support in helping me to be honored as a Top 50 California Neutral by the Daily Journal for the fifth time in the last six years.

I wrote about arbitration issues for the first three months of the year. In Arbitration Insight No. 21 (January 2012), I discussed Service Employees International Union, Local 1021 v. County of San Joaquin (2011) 202 Cal.App.4th 449, which held that a disciplined employee’s contractual claim for relief at arbitration survives despite his or her retirement. The more important topic of arbitration waivers was the subject of Arbitration Insight No. 22 (February 2012). Generally, waiver occurs where “the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration,” “unreasonably delayed in undertaking the procedure” or acted in “bad faith” or engaged in “wilful misconduct.” (Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418, 425-426.) Finally, Arbitration Insight No. 23 (March 2012) looked at Rosenson v. Greenberg Glusker Fields Claman & Machtinger LLP (2012) 203 Cal.App.4th 688, which held that if a client has opted to engage in the nonbinding MFAA process, and should the attorney be dissatisfied with the result, the attorney can demand arbitration, without first moving to compel it, if there is an existing written agreement with the client to arbitrate all fee and costs disputes. Without that agreement, the attorney’s remedy is to file a complaint for fees.

Attorney and mediator pet peeves were covered in Mediation Messages 74 and 75 (April and May 2012). Attorney pet peeves included mediators not respecting lawyers’ evaluations of the latters’ cases; being passive rather than active; failing to communicate offers and demands; giving up too soon; divulging, without consent, a party’s negotiated position and failing to follow up when cases do not settle. The most common complaints of mediators are attorneys not filing timely mediation briefs; not sharing their mediation briefs with opposing counsel; being unprepared at the mediation; making unreasonable demands and offers and not having persons with settlement authority at the mediations.

Once again, there was a dearth of significant events regarding federal mediation. However, Mediation Message No. 76 (June 2012) noted that Ninth Circuit Chief Judge Alex Kozinski issued a short but sharp rebuke in Nordyke v. King (9th Cir. 2012) 676 F.3d 828 of the en banc panel’s order that the parties mediate a long-running dispute concerning the right to bear arms.

Since knowledge (i.e. adequate discovery) of an opponent’s case is an integral part of mediation preparation, I discussed Coito v. Superior Court (2012) 54 Cal.4th 480 in Mediation Message No. 77 (July 2012). Coito holds, depending on the circumstances, that either absolute or qualified work product protection applies to witness statements obtained by attorneys or their agents. To a lesser extent, the doctrine also protects the identities of those same witnesses.

Staying with the theme of mediation preparation, I reminded attorneys in Mediation Message No. 78 (August 2012) to discuss with clients before (and not during) mediation the financial costs of ongoing discovery, possible motions and eventual trial or arbitration if their cases should not settle.

Mediation Message No. 79 (September 2012) reprised the proven premise, as originally discussed in Mediation Message No. 70 (July 2011), that newer empirical studies have further established that settling rather than going to trial makes statistical sense.

October’s and November’s Mediation Messages (Nos.  80 and 81) analyzed the use of brackets and mediator’s proposals in negotiating settlements.

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 2012

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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