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…
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;…
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…
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. A. Why Mediations Work The attorney was prepared. The attorney talked to his or her client about the purpose of mediation, the facts and…
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…
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,…