Posts Tagged ‘mediation processes’

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 theories. Thus, mediators must spend valuable time in the beginning of the process educating the parties about the facts and laws at issue.

Ironically, attorneys rarely have any problem with mediators discussing the contents of their briefs with opposing counsel. In fact, they often consent to mediators sharing the respective briefs. At the end of the day, experience has proven time-after-time that there are few issues parties keep secret throughout the mediation.

The only sound reason for not exchanging a mediation brief is if it contains either a fact (perhaps a smoking gun) or a legal tactic (discovery or motion) that should be held in abeyance. But that’s easily resolved; if you don’t want the opponent to know about facts, legal theories or arguments that are best held in reserve, put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum. So, rise up and free yourselves from the shibboleth of the confidential mediation brief! Enjoy the exhilaration of openness! Be radical and start a trend of exchanging mediation briefs! And, in the process, make mediations more effective.

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, October 2016

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 a joint caucus at the start of a mediation is if the complaint has not yet been or just been filed and there has been no or little discovery. Hopefully, the parties have shared their briefs in that instance but, if they haven’t, the joint caucus can be used to learn about material facts and legal contentions. Otherwise, the mediator will have to use valuable time at the beginning of the mediation to be a fact gatherer. Later in the mediation, a joint caucus between counsel can be helpful to discuss legal or factual contentions that have become “sticking points.”

But, in this message, I want to discuss the “parties only caucus,” in which no attorneys are present – a process I have not talked about before. I have used this type of mediation on eight or nine times over the years, all successfully. In other words, it is to be used sparingly. Examples where the approach has worked was a dispute between two very large companies where one was supplying a product to the other and the issue was over the price and delivery of the product; church members had differences over leadership of the congregation; a long-standing friend was suing his friend for wrongful termination and, in a breach of lease suit, it was obvious that a face-to-face meeting between the lessor and lessee could “clear the air.”

The following are guidelines for possible use of a “parties only caucus”:

  • Each party is represented by a person with absolute decision-making authority;
  • A stalemate in negotiations has occurred;
  • Although there is a stalemate, the negotiations have not been antagonistic;
  • The party representatives are intelligent, responsible and can approach a joint discussion dispassionately (this is a critical requirement);
  • The mediator is confident that the party representatives can objectively discuss settlement and believes that a meeting with only the parties can bring “closure”;
  • The parties are willing to meet without their attorneys being present;
  • The attorneys believe their respective clients can achieve progress in their absence and have agreed to the arrangement;
  • The mediator is in the room with the parties to remind them of the absolute confidentiality of their communications, to keep the discussion moving and to terminate the caucus if it has stalled or is not productive.

Whether a “parties only caucus” is to be suggested or used begins with the mediator. He or she should have a “gut” feeling, after having worked with the parties, that this type of meeting will work. It should not be used often, because all of the above preconditions probably will not exist. And, if there is any doubt about the utility of this type of caucus, it should not be considered and more traditional roads to settlement should be pursued. But, in the exceptional circumstance, it is one more method to bring about a resolution of a lawsuit.

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 2016

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 briefs have been given to the mediator. The mediation brief provides an opportunity to “sell” the case and impress the mediator with the attorney’s grasp of the facts and law. Avoid rehashing obvious legal principles; summarize the causes of action and discuss only those issues that are in conflict or are novel. Include exhibits that truly clarify or explain a factual contention. Advise about prior settlement offers or demands. And then submit the brief several days before the mediation so that the mediator has enough time to review it and research the applicable law.

Mediation briefs have been shared with opposing counsel. A majority of attorneys do not send their briefs to opposing counsel, which means that mediators must spend valuable time educating the parties about facts and laws in contention. If you don’t want the opponent to know about facts, legal theories or argument that are best held in reserve, then put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum. At the end of the day, experience has proven there are few issues a party chooses to keep secret throughout mediation.

Attorneys have evaluated their cases – they have thought about the strengths and weaknesses of both their own cases as well as the opponents’ and are prepared to discuss those pluses and minuses with the mediator. Such evaluation should include a review of jury instructions for the elements of the applicable causes of action and defenses as well as the leading legal texts for additional relevant law.

Essential parties are at the mediation. Every party should be at the mediation, unless exigent circumstances exist, their presence has been excused by the mediator or the defendant is insured under a policy that contains no reservations, so that their assent to settlement terms can be easily obtained. Similarly, it is beneficial if all other interested parties and adjusters are present so that the mediator can personally speak to them about factual and legal developments that may impact their respective cases. Otherwise, it is too easy for such a person, if reachable only by telephone, to disregard the mediator’s viewpoints.

Bring all necessary files and documents to the mediation. As at trial, attorneys should attend mediations with all of the pleadings, correspondence, discovery and exhibits in hard copy or accessible on a laptop, since it is often necessary, in discussing the case with the mediator, to refer to a complaint or answer, deposition transcript or interrogatory response or photograph or letter to support or contradict an important proposition.

Attend the mediation in good faith. Good faith includes having an open mind, a willingness to discuss all aspects of the case with the mediator and an ability to change a point of view if a reasonable, contrary argument has been provided. Attorneys should also have thought ahead as to what is required to try their cases (such as future discovery, possible experts and costs) if they are not resolved at mediation and, more importantly, realistically evaluated the chances of achieving their clients’ goals at trial.

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, June 2015

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 faith. In the mediation context, it means that the parties will be open to changing their minds; it is the polar opposite of rigidity.

Before the mediation, lawyers should assess their respective client’s willingness to listen to competing facts and theories and to adjust their positions accordingly. It is their obligation, if the clients are rigid, to educate them about the nature of the mediation process and to advise that resolution is not likely to happen if they are not willing to modify their positions or be willing to compromise some of their firmly held opinions.

Despite these best efforts, if a client is adamant that it is his or her way or trial and the lawyer honestly believes that this position is both deeply held and unalterable and cannot be changed by the most persuasive and evaluative mediator, it is better to not go forward with the mediation. Rather than proceed with a futile settlement effort, the attorney should strongly consider calling opposing counsel and the mediator to advise about the probable hopelessness of the mediation. (This discussion, incidentally, is privileged. See Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137.) By alerting the other participants, the lawyer has preserved the integrity of the mediation process, saved opposing counsel from expending precious time and money and negated the other attorney from having to expound at the subsequently failed mediation, Why are we here?

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, August 2009

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.

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 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.

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 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.

The mediator, with input from the respective attorneys, shall determine the best way to achieve a settlement. Counsel can be of immeasurable assistance in letting the mediator know about previous negotiations and any impediments to resolution. After that, the mediator should not hew to a set course; instead, he should adapt to the needs and expectations of the parties.

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, July 2009

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 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.

A mediator may also believe that speaking with an attorney outside a party’s presence can enhance the chances of resolution. Most usually, the mediator senses that the client is not listening to the attorney and mentions that fact to the attorney. Attorneys usually welcome a mediator’s reality-based intercession when a client becomes confused or conflicted.

Whatever the reason for such conferences or sidebars, attorneys should not hesitate in asking for them and should know that when a mediator requests one, it is only to facilitate the process.

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, May 2009

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 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.

Mediation can not be rushed (mediation maxim no. 2) – Like the axiom that no wine should be drunk before its time, each mediation has to proceed at its own pace to be effective. Settlement discussions take time, whether because of the need to engage in extensive fact gathering, that parties must be conditioned to accept the realities of relevant factual issues or that litigants, at mediation, are constantly reevaluating their respective goals. One party might be ready at the beginning, but it takes two (or sometimes more) to tango in this dynamic process, that involves ever-changing and occasionally unpredictable circumstances.

Preparation is the key to achieving mediation goals (mediation maxim no. 3) – Cases settle at desirable terms because the attorneys were prepared. They talked to their clients about the purpose of mediation, the facts and theory of their cases and how to respond, if permitted by the attorneys, to the mediator’s or opponent’s questions. They thought about the strengths and weaknesses of both their own and their opponent’s cases and were prepared to discuss those pluses and minuses with the mediator. Demonstrative evidence and illustrative aids, which emphasized important factual and legal aspects of the cases, were used. Persuasive briefs were given to the mediators well before the mediation. People with authority to settle the case were at the mediation, or immediately accessible. The attorneys thought about whether they and their clients should modify their settlement demands or offers and, if so, to what degree when faced with changed circumstances. And, finally, the attorneys considered what would have to be done to try their respective cases if they had not been resolved at mediation and, more importantly, had realistically evaluated the chances of achieving their goals at trial.

The facts generally predominate (mediation maxim no. 4) – The applicable law is important, especially if a motion for summary judgment is pending. The defendant must also be financially able to afford the proposed settlement. But first and foremost, the facts are most frequently the pivotal factor.

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, September 2008

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; it required essentially that “The parties shall personally appear at the first mediation session, and at any subsequent session unless excused by the mediator” and that “an insurance representative of a covered party also shall be present or available at such sessions, unless excused by the mediator.” Rule of Court 3.874, subdivisions (a)(1) and (2), continues to require the personal attendance of the parties, their counsels and insurance representatives at all mediation sessions, unless excused, but now the party, attorney or insurance representative whom the mediator has excused from attending the session or has been allowed to participate by telephone “must promptly send a letter or an electronic communication to the mediator and to all parties confirming the excuse or permission.” (Subdivision (a)(3).) Note that the notice obligation is on the person excused and not the attorney for the party. The change in rule 3.874 that the parties, counsels and insurance representatives “must (rather than shall) attend all mediation sessions in person, unless excused” is of no moment because Rule of Court 1.5, subdivision (b)(1), provides that “’must’ is mandatory.” Los Angeles Superior Court Rule 12.15, which tracks substantially the language in former rule 1634, still requires that insurance representatives “shall” be present or available, unless excused.

Participation lists. Under subdivision (b)(1), the parties are now required, at least five court days before the first mediation session, to serve a list of their mediation participants (which includes the parties, attorneys, representatives of parties that are not natural persons and insurance representatives) on the mediator and all other parties. Supplemental lists must be served promptly to reflect the presence of additional persons.

Mediation statements. Also new is that a mediator may request “that each party submit a short mediation statement providing information about the issues in dispute and possible resolutions of those issues and other information or documents that may appear helpful to resolve the dispute.” (Subdivision (b)(2).)

Copyright, Michael D. Marcus, April 2007

Mediation Message No. 34

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).

Business and Professions Code section 6068(d) provides that attorneys shall not “seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Rule of Professional 5-200(B) is essentially the same except it adds jurors to the prohibition. These ethical guidelines reflect the policy that “Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.” (DiSabatino v. State Bar (1980) 27 Cal.3d 159, 162-163, citing Paine v. State Bar (1939) 14 Cal.2d 150, 154.) Business and Professions Code section 6106 (concerning acts of moral turpitude and dishonesty) prohibits misrepresentations by a lawyer to opposing counsel. (In the Matter of Katz (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 430, 435.)

Although Jeffers and Katz make it clear that an attorney cannot misrepresent facts to a settlement judge or opposing counsel, case law provides that misrepresentations at a mediation are not sanctionable or disciplinable, absent the amendment of Evidence Code sections which provide for confidentiality in that setting. The analysis starts and ends with Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, which states that a mediator, pursuant to Evidence Code sections 1119 and 1121, may not report a participating attorney’s misconduct to the judge who has the case on his or her calendar.

Foxgate also distinguishes between the right of opposing counsel to report misconduct but not communications. While finding that a party may report misconduct even though a mediator may not (id. at p. 4) and, without deciding the issue, that a court that ordered a mediation may impose sanctions for conduct during the mediation, pursuant to C.C.P. section 128.5 (id. at p. 10, n. 6), Foxgate then states that “Neither a mediator nor a party may reveal communications made during mediation” (id. at p. 4) and that Evidence Code section 1121 prohibits both mediators “and anyone else from submitting a document that revealed communications during mediation and barred the court from considering them.” (Id. at p. 13.) The opinion reasons that:

Although a party may report obstructive conduct to the court, none of the confidentiality statutes currently make an exception for reporting bad faith conduct or for imposition of sanctions under that section when doing so would require disclosure of communications or a mediator’s assessment of a party’s conduct although the Legislature presumably is aware that Code of Civil Procedure section 128.5 permits imposition of sanctions when similar conduct occurs during trial proceedings. FN. 13.

FN.13. The conflict between the policy of preserving confidentiality of mediation in order to encourage resolution of disputes and the interest of the state in enforcing professional responsibility to protect the integrity of the judiciary and to protect the public against incompetent and/or unscrupulous attorneys has not gone unrecognized. (Citations omitted.) As noted, however, any resolution of the competing policies is a matter for legislative, not judicial, action.

Id. at p. 17.

Foxgate, therefore, allows attorneys to report an opponent’s mediation misconduct, such as the failure to appear at a mediation or any other unacceptable misbehavior that does not include a communication, but protects, until the legislature says otherwise, all communications during the mediation, no matter how improper.

Copyright, Michael D. Marcus, May 2006