Posts Tagged ‘mediation processes’

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 before the complaint has been filed – This is the optimum time to save fees and costs. The party who is more knowledgeable about the facts also has an advantage. But such knowledge can be an impediment to settlement if the other, less informed side cannot confirm the truth or existence of those facts. Thus, the party in control of the facts should consider whether or not to tell the opponent about them. Further downsides of pre-filing mediation are that the facts and contentions have not been developed by either side and there may not yet be insurance coverage.
• Mediate soon after the complaint has been filed – This period, like pre-filing mediation, saves fees and costs, although not as much as the latter, but has the benefit of showing that the plaintiff is serious about the case. Filing can also bring about a covered claim.
  
• Mediate immediately before or after a motion for summary judgment/summary adjudication has been filed – If the motion is supported by sound legal and factual contentions and might be granted, the party opposing it should attempt to settle the case before the motion is to be heard. At the same time, the moving party should take advantage of this opportunity. After such a motion has been denied, the opposing party is generally more emboldened and in a better position to claim that it has a good chance to win at trial.
• Mediate just before trial – As mentioned above, the uncertainty of what a jury might do and the fear of additional fees and costs, especially if the trial will be long or there is a prevailing party attorney’s fee clause or attorney’s fee statute, are prime reasons for settling “on the court house steps.” Additionally, mediating just before trial is an opportune time because both parties know each other’s theories and can accurately assess the pluses and minuses of trying the case. The downside of a delayed mediation is it allows the opposing party to become familiar with the facts and increases the client’s expenses.

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, April 2010

Please visit my website at www.marcusmediation.com 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.

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 situation. A joint caucus could be an appropriate mechanism for one case and verboten in another. Considerable discussion about sophisticated legal issues may be a preliminary requirement while the emotional needs of a party may be of greater importance in a different setting. The point is that every case is different even if it appears, on first blush, to be a generic harassment, commercial dispute or trip and fall. Besides the unique facts of every case, all parties and their counsel bring different expectations, personalities and perspectives to the process. What has worked in one instance is not guaranteed to work in another. Flexibility, not rigidity to a system or process, is required.
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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 advise about a circumstance that may impact settlement; perhaps it’s an insurance problem, some related litigation, prior negotiations or the conduct of the opposition – none of which were mentioned in the attorney’s brief. Or an attorney may become aware of the need for such a conference after the mediation has begun. For example, the attorney may have “control problems” with the client and needs the mediator’s assistance in talking to the client about the pros and cons of rejecting a settlement with the opposing party.
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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 plaintiffs in civil cases received an average of $43,000 less at trial than they would have obtained at settlement and 24 percent of defendants should not have gone to trial because it cost them an average of $1.1 million. The findings are based on 2,054 cases from 2002 to 2005.
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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.
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MISREPRESENTATIONS AT SETTLEMENT V. AT MEDIATION

Misrepresentations to a settlement judge can result in a contempt citation or discipline. The question for this Mediation Message is what effect do confidentiality standards have on the reporting of misconduct during mediations?

In In the matter of Jeffers (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 211, the attorney, knowing that his client was dead, told a mandatory settlement judge that the client did not believe he was responsible for the accident or the plaintiff’s resulting injuries and wanted the matter to be tried The attorney also told the judge that he had talked to his client just before the MSC and that the client, who had been under a conservatorship, was able to communicate, notwithstanding his physical limitations. Only after digging a deeper hole about his client’s physical condition, did the attorney admit that the client was dead. These misrepresentations were a violation of Business and Professions Code section 6068(d) and Rule of Professional Conduct 5-200(B).
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Why Mediations Succeed and Sometimes Do Not

Mediations are an extremely effective and cost-saving means of resolving both the simplest and most complicated of lawsuits. Occasionally, however, the parties are unable to resolve their differences. This message looks at the reasons why mediations most often work and then occasionally do not.
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MEDIATIONS AND THE FIVE-YEAR RULE

The just-published decision of Gonzalez v. County of Los Angeles (No. B168867; October 4, 2004; 2004 DJDAR 12228) clarifies how the order of a mediation at least four years and six months after a case has been filed impacts the requirement that the case be brought to trial within five years of its filing. (See CCP §583.310.)

A full discussion of the facts in Gonzalez is not required; it is necessary to note only that the case in question was filed on May 14, 1998 and, had the court not ordered a mediation on February 26, 2003, that the five-year period would have ended on May 14, 2003.
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Mediation is a Dynamic Process

Mediation includes different approaches and styles, such as facilitative and evaluative mediation and distributive and integrative bargaining. Mediators, in facilitative negotiations, do not impose their opinions concerning the facts, law or potential outcome on the participants (as is done in an evaluative method), preferring instead to use non-coercive means in arriving at a resolution. Distributive bargaining is competitive in nature because the parties are usually vying over a fixed asset, such as a sum of money or a piece of property. In contrast, integrative bargaining is more creative as it attempts to reward all parties so that there are more winners than losers when the day is ended.
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