Mediation Message No. 47


Since I’ve covered a lot of ground in the six years that I’ve been writing my “Mediation Messages,” it’s time to review and organize the subjects that have been discussed.

Mediation is a dynamic process; there is no pre-determined way in which it should be conducted. Its course and scope depend upon the facts, the parties and, to a lesser extent, the applicable law. (See both Message nos. 12 and 33; the latter talks about the different methods mediators use in breaking an impasse when the initial distributive bargaining method is no longer effective. The only truisms for mediation is that it can not be rushed and that settlement is preferable to trial. Both of these maxims are discussed in Message no. 47.)

The authority of a trial court to order parties to participate in both pro bono and private mediations is analyzed in Message no. 41. Message no. 24 discusses Travelers Casualty and Surety Company, et al. v. Superior Court, which holds that decision-making at mediation is in the hands of the parties rather than the mediator.

Preparation for mediation is a necessity. In fact, it should be approached with the same intensity as if it were a court trial. (See Message no. 15 [important questions to consider before commencing a mediation]; no. 27 [noting that two of the reasons mediations succeed is because attorneys were prepared and came in good faith] and no. 42 [analogizing the necessary steps for preparing for both a court trial and mediation].)

Mediation briefs should be prepared with the same care as any Superior Court motion. (Message no. 2 discusses what the briefs should contain. Message no. 16 emphasizes that briefs should be filed in every case and that they should be submitted before the mediation date so that the mediator has had time to read them. Also, as noted in Message no. 38, mediators, in court ordered mediations, may require such briefs.)

Counsel, the parties and insurance representatives must attend court-ordered mediations, unless excused. (Message no. 7 distinguishes the attendance requirement between court-ordered and voluntary mediations. Message no. 27 mentions that mediations sometimes do not succeed because an essential person with settlement authority was not present. Message no. 31 recommends that business representatives have sufficient authority to make binding decisions. Finally, Message no. 38 notes that a new Rule of Court adds additional requirements for non-attending participants.)

Whether or not the parties shall meet in a joint caucus and, if they do, how it should be conducted are discussed in Message nos. 35 and 36. Since attorney remarks at a joint caucus differ procedurally and tactically from opening remarks at trial, Message no. 3 advises what attorneys can and should not say to opposing counsel in that setting.

The opening offer or demand requires some thought; it should not be done “by the seat of the pants.” (Message no. 13 discusses the considerations involved in formulating the offer or demand; Message no. 14 reviews the tactics involved in deciding whether the plaintiff or defendant should make the first overture.)

Body language of mediation participants provides strong visual cues for what they are thinking. (Message no. 5 discusses the importance of this concept.)

There are practical and ethical reasons why attorneys should both keep their clients informed about what is happening at mediation and have knowing consent to settle their cases. (Message no. 22 reviews the American Bar Association guidelines for this ethical duty. Message no. 29 expands upon that subject by advising how attorneys should act to protect their clients’ needs and rights. Note, however, as discussed in Message no. 25, that an insurer has the right to settle cases without an insured’s consent if the latter is covered fully under a policy that gives the insurer the right to do so. Mediation Message no. 30 discusses the positives and negatives of having supportive people at mediation for youthful, vulnerable and inexperienced litigants.)

The last-minute condition (such as the request to make installment payments or the demand for liquidated damages if a party breaches an agreed-upon confidentiality clause) can be a potential deal breaker. (Message no. 18 advises how the parties can avoid that disruption by better timing.)

Hospital liens against third-party tortfeasors, to be enforceable, require an underlying debt by the plaintiff to the hospital. (Message no. 26 analyzes Parnell v. Adventist Health System/West, which decided this issue.)

An aggregate settlement of more than one client’s claims can be a potential violation of Rule of Professional Conduct 3-310, subdivision (C). (See Message no. 4 for how to avoid violating that rule.)

The propriety of fee sharing by attorneys with their clients is analyzed in Message no. 40.

The confidentiality of communications at mediation and writings prepared for mediation are a critical component of the process. (Message no. 17 discusses Rojas v. Superior Court, which holds that all writings prepared for mediation are sacrosanct. Message no. 39 reviews Wimsatt v. Superior Court, which extends mediation confidentiality to any writing or statement that would not have existed but for a mediation communication. Message no. 34 comments on the absurdity that mediation confidentiality, in effect, allows attorneys to make misrepresentations at mediations without the fear of sanction or punishment.)

Settlement agreements achieved at mediation are enforceable only if they follow standards established by the California Supreme Court. (Fair v. Bakhtiari, which is analyzed in Message no. 37, holds that a settlement at mediation is enforceable and not confidential only if it incorporates the language in Evidence Code section 1123, subdivision (b). Message no. 45 discusses Simmons v. Ghaderi which holds, in substance, that the waivers of the Evidence Code sections regarding confidentially must be express rather than implied.)

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, November 2008

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