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. 126

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO.  126 EXCHANGE MEDIATION BRIEFS There are no compelling reasons for opposing counsel not to exchange mediation briefs. (Okay, there might be one, and I’ll get to that shortly.) Because most attorneys don’t share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don’t know their opponents’ factual and legal…

27 Jul: Mediation Message No. 121

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 121 AN UNUSUAL VARIATION ON THE JOINT CAUCUS In January 2013, I looked at the evolution of the joint caucus from when I started as a mediator to the present. (Mediation Message no. 83.) Little has changed since then; if anything, a joint caucus with all of the parties and attorneys present at the beginning of a mediation is now even more anachronistic. The one exception to not having…

29 Jun: Mediation Message No. 111

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 111 A BLUEPRINT FOR SUCCESSFUL MEDIATIONS Successful mediations don’t happen by accident; they are the result of a number of recognized principles, all of which come under the rubric of preparation. Clients have been prepared. Attorneys talked to their clients about the purpose of mediation, the facts and theory of their respective cases and how to respond, if permitted by the attorneys, to the mediator’s questions. Timely and interesting…

30 Jul: Mediation Message No. 53

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 53 WHY ARE WE HERE? The sine qua non for an effective mediation, as I’ve mentioned many times, is preparation. But good faith and flexibility by the parties, although not as important, are also integral to resolving cases. One aspect of good faith by parties in mediations is that they shall be willing to consider all reasonable options and arguments presented by the mediator. Flexibility goes hand-in-hand with good…

17 Oct: Mediation Message No. 59

TIMING IS EVERYTHING The timing of a mediation can be almost as important as the facts of the case. For example, it is generally accepted that mediation immediately before trial results in a settlement because of concerns about additional fees and costs and the impending uncertainty of trial. So, rather than wait for the court to order or suggest that you mediate, arrange for that process when it is most advantageous to your client. Mediate…

10 Aug: Mediation Message No. 52

WHATEVER WORKS There are no absolutes as to how a mediation should be conducted – the only caveat is that it should be managed ethically, which includes that the principle of confidentially be strictly followed. Otherwise, whatever works is the appropriate mantra. A facilitative, easy going approach might be called for in one instance, an aggressive, evaluative style in another and a combination of the two methods may be the most effective in a third…

10 Aug: Mediation Message No. 50

MEDIATION “SIDEBARS” In the courtroom, a sidebar conference between attorneys and the judge takes place outside the earshot of the jury and, by necessity, the parties. At mediation, the informal conference or sidebar is a discussion between the mediator and one or all of the attorneys outside the presence of the client or clients. It is not unusual for an attorney to request a private conference with the mediator before the mediation has begun to…

10 Aug: Mediation Message No. 46

MEDIATION MAXIM With apologies to the Civil Code’s Maxims of Jurisprudence (sections 3509 to 3548), which can provide an entertaining read, I would like to propose maxims that are particularly appropriate for mediation: Settling is better than going to trial (mediation maxim no. 1) – What has always been a generally accepted truism, has been confirmed by a study in the September 2008 issue of the Journal of Empirical Legal Studies that 61 percent of…

10 Aug: Mediation Message No. 38

Attendance, Participation Lists and Mediation Statements With little advance warning or fanfare, the Judicial Council reorganized, renumbered and, in some instances, amended the Rules of Court on January 1, 2007. The most dramatic changes in the standards applicable to court-ordered mediations (3.850 through 3.878) are in Rule of Court 3.874, which covers attendance at mediations, the serving of participation lists and the submission of mediation statements. Attendance. Former Rule of Court 1634 was quite simple;…