06 Apr: Mediation Message No. 142

THE STATUS OF MEDIATION CONFIDENTIALITY Since Cassel v. Superior Court (2011) 51 Cal.4th 113 held that all communications by attorneys to their clients at all phases of mediation are confidential, even if the communications constitute legal malpractice, little has happened to change Cassel‘s holding. In immediate response to Cassel, AB 2025 was introduced in 2012 at the California Legislature. In short, it provided that mediation confidentiality was not a shield to an attorney in a legal malpractice action or State Bar disciplinary proceeding. The Legislature…

06 Apr: Mediation Message No. 141

CREATING AN ENFORCEABLE SECTION 664.6 REMEDY Merely stipulating in a settlement agreement that the trial court “may enter judgment pursuant to the terms of the settlement” (Code of Civil Procedure section 664.6) is not enough to confer jurisdiction on the court over the settlement unless the parties also make a subsequent request conferring jurisdiction while the case is still pending (i.e. before the matter has been dismissed) and that the request is either in a…

06 Apr: Mediation Message No. 140

THE NEW TAX CODE AND SEXUAL HARASSMENT OR SEXUAL ABUSE SETTLEMENTS On December 22, 2017, the Tax Cuts and Jobs Act was signed into law. Obscured by the politics of that legislation was an amendment (subd. (q)) to 26 U.S.C. § 162 (trade or business expenses) of the Tax Code which states, “No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if…

18 Dec: Arbitration Insight No. 26

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 26 APPEALING AN ARBITRATION AWARD 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…

18 Dec: Arbitration Insight No. 25

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 25 RULES OF EVIDENCE AT ARBITRATION There is uncertainty about the application of the rules of evidence at arbitration. Some attorneys believe that arbitration should be an informal process while others think it should be more structured. The Arbitration Act does not resolve that conflict. Code of Civil Procedure section 1282.2, subd. (d) merely provides, in part, that “The parties to the arbitration are entitled to be heard, to…

18 Dec: 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,…

18 Dec: Mediation Message No. 138

“THE ROOM WHERE IT HAPPENS” The title of this Mediation Message comes from a song from the musical “Hamilton,” where Aaron Burr complains that no one knows what happened when Hamilton, Jefferson and Madison got together in a room and agreed to Hamilton’s plan to have the national government take over and pay the states’ debts, while Jefferson and Madison obtained the national capital (the District of Columbia) for the South. Burr then sings, “No…

18 Dec: Mediation Message No. 137

MEDIATION MUSIC: THE MEDIATION CONCERT HALL There is a correlation between popular song titles and what happens at mediations. Consider the following: “Welcome to my world,” Dean Martin 1958. Mediators ask the parties and their counsel to come to mediation and to trust the process. “I’m a believer,” the Monkees 1966. That comment is music to a mediator’s ears. “Take this job and shove it,” Johnny Paycheck 1977; “Workin’ for a livin’,” Huey Lewis and…

18 Dec: Mediation Message No. 136

“YOU CAN’T ALWAYS GET WHAT YOU WANT” “You can’t always get what you want You can’t always get what you want You can’t always get what you want But if you try sometimes well you might find You get what you need” (From “You can’t always get what you want,” lyrics by Keith Richards and Mick Jagger, 1969.) This memorable refrain, known by all rock ‘n’ roll fans, is also the perfect reminder at mediation…

18 Aug: Mediation Message No. 135

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 135 “DON’T GIVE UP. DON’T EVER GIVE UP.” – JIMMY VALVANO Intensive preparation is a sine qua non for a successful mediation. (See Mediation Messages 42 and 111 for preparation elements.) After that, it’s important that all participants, including the mediator, maintain a positive attitude throughout the mediation’s ups and downs, which will surely occur. Mediation can produce a combination of emotions – some positive and some not so…