Posts Tagged ‘preparation’

Mediation Message No. 111



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. 78



As I’ve mentioned many times, preparation is the sine qua non for achieving mediation goals. One part of that preparation is to discuss with clients before (and not during) mediation the financial costs of ongoing discovery, possible motions and eventual trial or arbitration if the case should not settle.

In non-contingency fee representation, pre-trial and trial costs can be dramatic, more so if trial is far off and discovery has not been completed. Added to this are the possibilities that one party may bring discovery motions or a motion for summary adjudication or summary judgment and that expert witnesses may have to be consulted or retained. Even plaintiffs in contingency matters face increased costs, especially if much discovery is still to be conducted or expert witnesses must be hired.

Clients should be advised before mediation about future and potential costs so that they have sufficient time to determine if they have the means to pay or absorb those costs and to preliminarily evaluate the financial advantages and disadvantages of settling or going to trial. This analysis may certainly change at mediation, once new facts and arguments are presented, but, at that time, because of early input, clients should be better able to realistically evaluate the pros and cons of pre-trail resolution.

Early analysis of the continuing costs of litigation and trial also assists lawyers in deciding whether the risks of trial are or are not outweighed by the benefits of settling,

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 2012

Please visit my website at 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. 58


Besides bringing your wits, clients and people with authority to settle the case (see Mediation Message No. 38) to mediations, you are strongly advised to bring the entire file and a long form settlement agreement.

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. If the needed writing or exhibit is not available, the lawyer must then ask a person at his/her office to fax or e-mail the document. And, if the requested item cannot be found or forwarded, its immediate effectiveness is lost with resulting negative consequences.

Next, although the neutral can provide an abbreviated settlement form, have a long form agreement available in hard copy or on a lap top or memory card. Because most parties want to memorialize all of the terms in a document, even when a short form is enforceable, having the longer one at the settlement eliminates the inevitable hassling later on over its arcane language when the euphoria of the settlement has worn off.

A word of caution when using a long form. Every settlement resulting from a mediation must contain written language that waives mediation confidentiality; otherwise, the agreement is unenforceable. (Simmons v. Ghaderi (2008) 44 Cal.4th 570.) This language, to be effective, should also refer to section 664.6 and say something similar to “It is the intent of the parties, pursuant to Evidence Code sections 1122(a)(1) and 1123(b) and Code of Civil Procedure section 664.6, that all of the terms of this agreement may be disclosed to a court of law and shall be enforceable and binding upon them in a court of law.”

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, March 2010

Mediation Message No. 49


Either a party’s attorney or the mediator should consider contacting one another prior to the mediation date whenever either believes there is an issue that might impact the mediation process which needs to be discussed beforehand. Such communications are confidential. (See Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 holding that mediation confidentiality applies to any writing or statement that would not have existed but for an impending mediation. A full discussion of Wimsatt can be found in Mediation Message no. 39.)

Attorneys may wish to call the mediator, for example, if they feel there is a need to clarify or explain a complicated factual or legal issue that cannot be adequately discussed in a brief; to advise that they have a sensitive or emotional client who does not want to see an opposing party; when there is good cause to request that a client or person with settlement authority can not be present or when they need to ask about the availability of special equipment to show a video or other type of demonstrative evidence. (Note that both Rule of Court 3.874, subdivisions (a)(1) and (2), and Los Angeles Superior Court Rule 12.15 require the attendance of the parties, their counsel and insurance representatives at all court-connected mediation sessions unless excused.)

Mediators may call participating attorneys to talk about whether or not a joint caucus should or should not be held or to ask for clarification of facts or law that have not been fully developed in the briefs.

Pre-mediation communications are another example that mediation is a dynamic process with few limitations or restrictions other than that it must be confidential and conducted in good faith.

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, January 2009

Mediation Message No. 42


Since most civil matters settle rather than are tried, the mediation of those cases assumes critical importance because it becomes, in effect, your “day in court.” Thus, approach this phase of the litigation process as if it were a court trial, rather than just another settlement conference, because there is a direct correlation between extensive mediation preparation and the realization of expectations. The following are recommended steps, many of which are used in trial preparation, for achieving the best results at mediation for your clients:

Decide beforehand the mediation goals. Most usually, settlement is the raison d’être of a mediation. However, even if the parties cannot agree, mediation can be useful for learning more about the opponent’s theories and goals, resolving discovery disputes and impressing the opposition by your command of the facts or law.

Determine when the mediation should be conducted. Rather than wait for the trial court to order or “recommend” mediation, calendar it when it is most advantageous to your client. An early date, either before filing the complaint or shortly thereafter when discovery is in its preliminary stages, benefits the party that is more knowledgeable about the facts. If successful, early mediation also saves the parties from mounting legal fees and costs. A mediation calendared shortly before the filing or hearing of a motion for summary judgment/summary adjudication can be effective because the opposing party may not want to risk settlement opportunities when confronted by sound legal and factual contentions. Oftentimes, the best time to schedule a mediation is just before trial when both parties know each other’s cases and can most accurately assess the pluses and minuses of trying the case. The downside of such a late mediation is that it allows the opposing party, in the interim, to become familiar with the facts and increases the client’s expenses.

Decide who the mediator shall be. Unlike trial, the parties have great latitude in selecting a mediator. That person should be knowledgeable about the process and the applicable law. It is also helpful to select a mediator whose style fits the needs of the case. In other words, do the parties need a mediator who is forceful or compassionate or can operate in both extremes?

Be familiar with the legal principles at issue. Just as you would before going to trial, review the jury instructions for the elements of the applicable causes of action and the leading legal texts (e.g., the annotated code; Witkin-Epstein; Miller & Starr) for additional relevant law. Further, know the standards and rules that apply to mediations. In particular, be familiar with the requirement in Rule of Court 3.874 that the parties, their attorneys and insurance representatives with authority to settle or recommend settlement must attend in person, unless excused, all court-ordered mediations (as opposed to voluntary mediations which are not yet covered by any formal rules) and that all communications in mediations and writings prepared expressly for those mediations are confidential, pursuant to both Evidence Code sections 1119 et seq. and Foxgate Homeowners Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 and Rojas v. Superior Court (2004) 33 Cal.4th 403.

Analyze the factual and legal strengths and weaknesses of your case. Everyone knows the strengths of their respective cases; the weaknesses are sometimes overlooked. Just as you should be prepared to meet those deficiencies at trial, be ready to discuss them with the mediator because he/she will surely raise them when meeting with you in a separate caucus. The best way to anticipate this dialogue is to write out the elements of every cause of action and then, in adjoining grids (one each for the witnesses and the physical evidence), insert all of the admissible evidence in support of every element. Be prepared to defend any cause of action that lacks evidentiary support or uses evidence that is arguably inadmissible.

Decide whether or not to reveal a “smoking gun.” Tactical decisions are not unique to trials. A major decision at mediation is whether to allow the mediator to advise the opposing party about an undisclosed factual or procedural “smoking gun” which supposedly could impact the case at trial. There are no clear answers as to whether you should reveal that potent issue, but the following questions will help in resolving the conundrum: Is the information really case dispositive? Will it turn the judge or jury to your side or is its value exaggerated? Will the information be revealed ultimately in discovery? Is the information inadmissible and, thus, could never be used at a subsequent trial? Is the financial cost of developing the “smoking gun” at trial prohibitive? Will the matter probably not be tried because of client reluctance, financial costs or the strong possibility that it can not be won?

Prepare clients for mediation. Just as you would prepare your clients before calling them as witnesses at trial, advise them before the mediation as to the purpose of the proceeding, its procedures (such as confidentiality and the possibility of a joint caucus), how to dress, where to park and how to act in both a joint caucus and in a separate caucus when only the mediator is present. Discuss whether they should take an active part in the mediation and, if so, what questions the mediator may ask of them. Also, discuss the possible demands and offers that should be made to resolve the matter.

Determine whether any witnesses, other than the client, should attend the mediation. As in a trial, consider what witnesses, other than the party, will best present the factual portion of your case. For example, is there a credible witness who can corroborate the client’s version of the facts (as in an employer-employee dispute) when the client’s credibility is under attack? Alternatively, consider using a declaration when that witness is unavailable. Such considerations should not be limited to lay witnesses. While experts are commonly used only in construction defect mediations, they can be effective whenever an issue of liability rests substantially on their opinions and their identities are already known to the opposing party.

Use demonstrative evidence and other illustrative aids. Rely, as you would at trial, on physical evidence and illustrative charts to emphasize the key points in your case. Enlarge pictures that depict accidents and injuries. Use PowerPoint or other comparable technology to highlight key language in contracts, correspondence and deposition testimony. Provide a chronology to clarify confusing events, such as the dates in a construction defect or legal malpractice claims. Produce a video that dramatically emphasizes an important aspect of your case (for example, the day-in-the-life of the plaintiff or portions of a witness’s taped deposition). In other words, make your case more interesting and powerful by playing to the mediator’s visual senses.

Provide an interesting and timely mediation brief. Use this opportunity to “sell” your case and impress the mediator with your grasp of the facts and law. Present the theme in a brief opening paragraph, followed by a concise review of the pertinent facts. 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, if necessary, the applicable law.

Prepare an opening statement. If you have confirmed that the mediator shall convene a joint caucus, prepare remarks for that session which address the legal and factual strengths of your case and why you shall prevail at trial. At the same time, avoid comments that will only inflame the opposing party and its counsel.

Mediation, like trial, is theater. The mediator and your opposition are both the audience and critics. Weave all that you have worked on so carefully – your knowledge of the facts and law, the prepared client, the exhibits and the tactical decisions – into a compelling presentation for the mediation. That approach will produce dividends. After all, mediations and trials are also alike in that preparation for both produces good results, while a seat-of-the-pants attitude usually results in diminished returns.

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, December 2007

Mediation Message No. 31


Quite often, attorneys have no control over who shall be the party’s representative at mediation, especially if the litigant is an individual or the involved business is small. But when extenuating circumstances prevent the business owner from appearing or the entity is large enough to have multiple decision-makers, the attorney should take an active part in deciding who the representative shall be. The following two factors are considerations when making that choice:

The representative should be influential in the business. It is highly preferable, to keep the settlement process moving along, that the person in attendance have enough authority to make binding decisions. However, if that is not possible, the representative must be more than a mere spokesperson; he or she should be knowledgeable about the relevant circumstances and have the respect of the absent powers-that-be so that they will listen to his or her recommendation about what position to take.

The representative should be personable and well-mannered. In a joint caucus, the representative can “score points” with opposing counsel and his or her client by being courteous and, where appropriate, empathetic. Even if the parties never meet, the mediator will be influenced positively by any person who is respectful and engaging. This consideration, then, is no different from the thinking process that a lawyer should go through when deciding what witnesses to call at trial; certainly, knowledge of the facts is most important but, when all factors are equal, considerable weight should be given to the person who will best charm the jury.

Copyright, Michael D. Marcus, February 2006

Mediation Message No. 15

Questions to Consider Before Commencing a Mediation

Effective mediation preparation includes asking yourself questions about the status of your own case, the opponent’s case, opposing counsel and the mediator. Specifically, the following inquiries should be covered:

What are the strengths of your case? Certainly, you will want to advise the opposition, if there is a joint caucus, and/or the mediator about all of the factual and legal factors why you shall prevail at a future trial and are, therefore, entitled to a favorable settlement.

What are the weaknesses of your case? Almost as important as being able to identify your case’s strengths is also knowing its weaknesses. As an example, is there a problem of proving or disproving damages or is one of the witnesses not credible? Having gone through such an analysis, you will be prepared to intelligently discuss and even counter or minimize the mediator’s comments about particular problem areas.

What is your assessment of opposing counsel? Before the mediation, you should have formed a good idea about the strengths and weaknesses of opposing counsel. Is this person experienced, knowledgeable and prepared or flying by the seat of his or pants, blithely ignorant of what it will take to try this case? Such information is invaluable in putting a value on your case and assessing the risks of going to trial.

What do you know about the mediator? Prepared counsel do not go to trial without learning about the judge who shall preside over the case. Similarly, inquire about your mediator’s legal background, including his or her experience in the area you are about to discuss, and what style or approach that person brings to the mediation process.

What is your bottom line? You most probably have an opening offer or demand in mind but have you also thought about how far you and your client are prepared to move before you can go no further? Such forethought will make the negotiation process much easier.

What is the worst case scenario if the case does not settle? While there is nothing wrong with being confident about your case, think ahead to what will have to be done to try the matter if it is not resolved at mediation and, more importantly, realistically evaluate the chances of achieving your goals at trial.

Copyright, Michael D. Marcus, June 2004

Mediation Message No. 9


No experienced lawyer would go to trial without demonstrative evidence or illustrative aids that effectively emphasize the critical factual or legal parts of his/her case. Such evidence can clarify or amplify the testimony of witnesses, make abstract concepts real and more vivid and make a case look stronger than it might really be. It is for those same reasons that demonstrative evidence should be used at mediations.

Whether the matter involve a business breach, an employment action concerning an allegedly wrongful termination, a property dispute or injuries caused by a vehicle accident or defective product, the facts can always be enhanced by the use of applicable correspondence, contracts, charts, pictures or, even more dramatically, a PowerPoint presentation of these same items.

Just as at trial, the demonstrative evidence to present at mediation is dictated by the facts of each case. Contractual controversies may need a time line as well as the documents at issue to make the facts more understandable. An employment suit may be more persuasively prosecuted or defended if the statements of parties and witnesses are highlighted. Charts and pictures of street intersections should be used to explain accidents. Photographs of claimed injuries are obviously helpful.

Finally, all demonstrative evidence should be legible (whether the writing be in a letter or picture), clear and presented in an organized fashion so that its desired impact is not lost on the mediator.

Copyright, Michael D. Marcus, December 2003

Mediation Message No. 8


While sound preparation by plaintiffs and defense lawyers for mediation, motions and trial has always included a review of the BAJI instructions for the elements of the causes of action to be litigated, the creation of the new Judicial Council of California Civil Jury Instructions (CACI) makes that review even more critical. These new instructions, which are not copyrighted, can be accessed on both LexisNexis and Westlaw, although the LexisNexis site is much easier to use.

CACI differs from BAJI in three substantial ways, besides simplifying the wording in the instructions. It includes several legal areas (as an example, the Cartwright Act) that were not covered by BAJI. Next, CACI provides verdict forms for all of the potential theories of liability, making it much easier to identify the legal elements in question which need to be proved or defended against. Third, CACI has updated the law supporting each of the instructions, thereby providing a quick reference tool for those who may wish to supplement their research on a particular subject.

These changes should be very helpful to lawyers as they prepare for mediation because that process will frequently include a discussion by the mediator of both the evidence supporting or controverting the elements of the causes of action in question and the law regarding those same theories.

Copyright, Michael D. Marcus, November 2003