Resolution Remedies

Resolution Remedies' SideBar

  1. The Beginning of the End of Mediation Confidentiality

    October 5, 2015 by Resolution Remedies

    A sweeping change in Mediation Confidentiality is currently being studied by the California Law Revision Commission. The Commission, after concurrent resolution of the legislature, has been directed to analyze  “the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct …”

    The catalyst for this direction to the Commission is likely the California Supreme Court’s 2011 decision in Cassel v. Superior Court ( 51 Cal.4th 113) in which it was determined that mediation confidentiality precludes an action by a client against her attorney for malpractice based on circumstances alleged to have occurred during the mediation.  In Cassel, the Court, in J. Chin’s concurring opinion, observed the following, “… but I am not completely satisfied that the legislature has fully considered whether attorneys should be shielded from accountability in this way.  There may be better ways to balance the competing interests than simply providing that an attorneys statements during mediation may never be disclosed … As the majority notes the legislature is free to reconsider the question.  It may well wish to do so.”

    The Commission is doing is precisely what the legislature directed the Commission to do and has been working on a recommendation for over 3 years.  For the first time we have received some indication of where the Commission may be headed following their recently completed 8/7/15 meeting.  Everyone involved in the mediation process and all who value its effectiveness should have pause for concern here.

    In one of staff’s last memoranda to The Commission Staff Counsel listed possible options for the Commission to study and possibly adopt.  At its 8/7/15 meeting, the Commission voted to further study options which would:

    1)       Create an exception for all mediation confidential communications, whether or not the claimed misconduct is within or outside the mediation;

    2)       Make such a new exception applicable to BOTH the lawyers representing parties in the mediation as well as the mediator if she is an attorney. BOTH the lawyers and the mediator could, therefore, under the foregoing exception, be subject to claims involving possible discipline by the State Bar plus civil litigation claims of malpractice. 3)      The Commission was also requested to draft an “in camera proceeding” provision to permit a trial court to judge the type of misconduct being asserted, in which the judge would have discretion to deny the request for such an in camera proceeding.  There is no further description provided to us regarding what protocol would govern such in camera proceeding once requested nor the legal effect of denial of such a requested hearing on a claim against a party’s counsel and/or the mediator arising out of the mediation proceeding.

    4)       The Commission voted to create an exception to all applicable mediation confidentiality provisions set forth in the Evidence Code to allow evidence of claimed misconduct or malpractice to be admissible in proceedings brought by the parties against their attorneys and/or the mediator.

    5)       The Commission voted to reject any option that would allow a signed mediation settlement agreement to be set aside due to claimed attorney misconduct.  Thus, it appears the exceptions will continue to prohibit extrinsic evidence regarding agreement formation, opening the door only for malpractice claims against the attorneys and/or the mediator.

    6)       Any proposed new exception to mediation confidentiality would permit disclosure only of mediation evidence relevant to the claimed malpractice or conduct.

    The above listing of options being considered is not exhaustive and at its next meeting on 10/8/2015 the Commission may further enlighten us on how far they may have gone toward crafting an actual recommendation to the Legislature.

    I believe it fair to state that if these proposed changes are actually enacted into law it may well signal the end of mediation confidentiality as we have come to know it.

    Knowledgeable mediators and attorneys highly experienced with the mediation process have all suggested that litigants may well be reluctant to engage in mediation unless the process remains fully confidential. One cannot ignore the  potential adverse effect the proposed provisions would have on attorneys when they consider whether to recommend mediation when there is the possibility they  may be sued by a client or party participant for the advice provided during the mediation.  It is fair to also ask how these proposals will affect mediator conduct during not only the in person mediation sessions, but also during calls, emails and other efforts when mediations continue for a period of time, often for days or weeks with the current understanding of continuing confidentiality.

    Confidentiality assures frank and candid exchanges among parties, counsel and the mediator without fear of becoming the target of a lawsuit or disciplinary investigation/proceeding by the State Bar for something they may have said, written or done during, before or after a mediation proceeding.  The guarantee of strict confidentiality fosters an informal environment where the parties can be forthcoming with a mediator, and the brief respite from the formal procedure and posturing of litigation is often enough to forge agreement among conflicting interests.

    The current approach of the Commission is like crushing a nut with a sledgehammer.  Attorney malpractice in mediation is exceedingly rare. It certainly should not serve as a legitimate reason to do away with a long adhered to statutory and case law protected body of law that all have come to rely on and utilize over the years.

    Mediation settles literally thousands of cases in our judicial system each year. I dare suggest that if these changes are recommended to the legislature and thereafter enacted into law as currently proposed this will no longer be the case. There will become too many reasons to avoid mediation rather than see it as a confidential process whose purpose has been shown to be remarkably effective in resolving disputes so well for so long in California. Simply stated, the limited scope of attorney misconduct in mediations hardly ought to trump the public interest in preserving confidentiality in mediations.

    The next meeting of The California Law Review Commission will take place on October 8, 2015, in Davis, California.  The Commission has welcomed public comment, and I urge all who read this to make their views known to The Commission so they might be considered in connection with this matter.

    -Gary T. Ragghianti

  2. Mediation Twenty Years Later…Some Observations

    May 29, 2014 by Resolution Remedies

    My own experience over the past twenty years is that mediation is being utilized more and more by lawyers.  Why? Because over 80% of cases settle during or shortly after mediation.  In addition, lawyers have become more comfortable guiding their clients through the process.  However, as with all things in the practice, there is always room for improvement, The following suggestions come from personal observation, plus talking to and reading what other mediators have said on the topic.

    Ready, Willing and Able to Try the Case

    There is no substitute for experience.  Some may say that too many cases are settled.  The truth is that in most cases, the parties achieve a better result than taking their chances before a judge, jury, or arbitrator.  On the other hand, the key to achieving reasonable settlement for your client is to make it clear that you are ready willing and able to try the case.  Unfortunately, some lawyers have the reputation that they will always settle in lieu of trial. If your opponent sees you this way, expect to be treated accordingly. I am not suggesting threats to terminate the mediation or confrontational statements. Rather lawyers should be prepared to try a case and develop a credible reputation of doing so when they reasonably conclude that a fair settlement cannot be accomplished. A reputation is developed over a career and this requires consistent diligence and effective preparation of all your cases for trial or in any other venue.

    While it is imperative that everyone in mediation commit to meaningful participation in discussing the strengths and weaknesses of a case, there will be occasions when after a full exploration of the case and careful consideration of all settlement options terminated the mediation is appropriate.

    Is Everyone at the Table and Do They Have the Authority to Settle?

    This raises a number of points to consider. First, since counsel almost always seek a universal settlement of a dispute, one should ask the questions “Who should be invited to the table?” This might include real parties in interest or anyone who might be affected by a settlement. Sometimes, formal joinder is necessary to assure their participation, but often informal contact or invitation will suffice.

    There is no one answer to the problem of assuring that someone is present with sufficient authority to settle all issues at the mediation. As a mediator, I can recount the frustration of spending many hours in achieving a settlement in principle, only to learn that the representative has limited authority or the settlement must be approved by someone else or the final decision maker is not available to extend authority to someone at the mediation.

    As a mediator, I always want to talk face to face with the decision maker for each party. In the case of large companies or government entities, it is not always possible to have the decision maker present, but opposing counsel should discuss this prior to meeting so as to know the limitations imposed on the process. The fact is that even when the decision maker is present, it is rare for that person to have unlimited authority. This fact does not have to prevent settlement, as experienced mediators will often encourage the representative to seek additional authority, if appropriate and will settle the case.

    Lastly, caution should be exercised in demanding that the other side commit to a position as a condition to agreeing to mediate e.g. minimum demand or minimum offer. This approach almost always results in a refusal to mediate.

    To Mediate Now or Later, That is the Question

    Once again there is no one answer, but there are some good reasons why you choose one or the other. Is there a relationship to be protected? Do the parties have limited resources and a small amount in controversy? On the other hand, some level of preparation, investigation and discovery is often necessary to enable counsel to reach a reasonable evaluation of a client’s position. There are times when mediation close to trial is appropriate, but all too often clients suffer both emotionally and financially from waiting that long. Counsel must balance all these factors, but remember that the client’s interest must be paramount.

    My Way or the Highway

    Attorneys are quick to say that trials are won or lost in the opening statement. True or not, mediations are not trials and therefore discretion should be exercised in what you say in the opening session. Most mediators conduct an opening session with all participants present. After a brief orientation, counsel and/or parties are invited to make comments. Best thinking here says the least said the better. Never use the moment to make aggressive or inflammatory statements about the case. Reaffirm your client’s position, but emphasize that he or she is there to bargain in good faith. Leave it to the mediator, in private caucus, to discuss problems with the opponent about its case. The message is often more effective and clear when delivered through that means. Be prepared for similar treatment by the mediator during private caucus with one’s own client.

    Preparation. Preparation. Preparation. You, Your Case and Your Client

    Although I am not suggesting that mediation requires the same amount o preparation as a jury trial, counsel should not minimize the effort it will take to do a competent job. While it might not be necessary to explore every nook and cranny, you should know where they are. Knowledge is power and no one should expect to negotiate effectively in a mediation unless you possess it.

    This is important or two reasons. One, it would be foolish not to listen to the mediator when he or she raises potential weaknesses in the case, although counsel should not hesitate to point out when the mediator may be wrong. Two, a key to achieving a good result is helping the mediator in conducting the same process with your opponent. Do not underestimate the importance of presenting to the mediator a view of the acts that can be supported by admissible evidence and a reasonable evaluation of trial outcomes, based on applicable legal authority arising from those facts.

    Counsel should also follow the same rules for client preparation. You would not consider taking your client to trial without careful preparation, mediation should be no different. Explain how mediation works, including the rules governing privilege, confidentiality, and that the mediator will ask questions and invite participation. Equally important the client deserves the benefit of counsel’s evaluation of the case, before the mediation, including potential weaknesses and pitfalls. There is then no need for “grand-standing” in front of the client during privet meetings with the mediator. Since there are few cases with a 100% chance of success, one can ignore the impulse to lecture the mediator and your client about that level of confidence.

    Consider the damage done to the client’s level of trust of their lawyer if they learn for the first time there is a risk of summary judgment or that fees and costs will be substantial. The mediator will ask about these issues and it is devastating to a client to hear about them for the first time at the mediation. While clients appreciate aggressiveness and diligence on their behalf, they also respect honesty and candor from their lawyers.

    “A Couple of Hours Ought to be Enough Time”

    Probably not! Mediation is a process and as such parties need time to tell their side and time to consider changing long held opinions and positions. Attorneys often ask me why is takes so long. I remind them that while we lawyers may be capable of seeing the wisdom of reversing field or at least modifying a position, clients may not. It takes time, and patience is indeed a virtue. Many times a mediation, that seems to be going nowhere, results in a settlement when the parties continue to make a good faith effort.

    Evidence tells us that a give and take negotiation process with a series of offers and counter offers is more effective that stating an initial position and “sticking to it.” This is not to say that parties should not make large moves (often effective, and sometimes necessary.)

    The mediation process, if successful, will be the parties’ “day in court.” Remember to set the stage for them. It will often be difficult and emotional, but rarely matching the costly, draining courtroom experience. First and foremost your client wants a reasonable, prompt resolution of the case rather than winning at all costs. Remember that the mediator is in the best position to assess the possibility of reaching a settlement, e.g., information on a confidential basis from the other side suggesting more flexibility than their stated position, but the mediator is not authorized to communicate.

    In short, trust your mediator and the process. It works.

    We Agreed to What!

    Surprises can be fun, but not after working all day to settle a case. So eliminate the possibilities by clarifying before you leave the mediation. Mediators should ask the parties if they want the terms reduced to writing and if so prepare a list of the key terms for signature. I prefer to also bring the parties together, read the terms and ask the parties and counsel to confirm and/or further clarify. This also allows counsel to agree on who will prepare the formal documents, etc. Subject to local custom or rules, a settlement agreed to at mediation will be enforced by courts.

    On those occasions when a global settlement could not be reached on all the issues or with all the parties, consider asking the mediator to serve as a binding arbitrator or schedule a second mediation. Often it is best to give it a few days before you decide. We are past the day when a willingness to mediate or otherwise expedite resolution is considered a sign weakness . . . aren’t we?

    I hope this has been helpful. Mediators are always willing to answer questions or assist in bringing people to the table, so if you are thinking about a mediation, don’t hesitate; call the mediator of your choice. Peace.

    -Judge John M. Meagher (ret.)

    Resolution Remedies

  3. Tips for Settling Volatile Landlord-Tenant Cases

    by Resolution Remedies

    Dealing with Emotions. Landlords and tenants are often emotional about the rental premises and their use of  it.  It’s therefore critical for the Mediator to openly acknowledge to each side what each holds dear:  to the tenant, a recognition of the sanctity of his/her home or business livelihood;  to the landlord, recognize the importance of respecting his/her property investment.  Once the parties “feel heard” as to this core personal issue, they can more meaningfully, and less emotionally, approach resolution of the dispute over the rental premises.

    Changing Laws. Because landlord-tenant law is constantly evolving and changing, an effective approach at a landlord/tenant mediation is for either counsel (or the mediator) to prepare copies of, and distribute at the mediation, the most recent appellate case decisions and updated excerpts of state/local statutes relevant to the issues in dispute.   Being presented with the latest governing laws gives a “reality check” to counsel and clients — which can help resolve the landlord-tenant dispute.

    Sample Forms. If the tenant is currently in possession, a useful practice is for counsel (or the mediator) to prepare in advance of the mediation and bring to the mediation a sample “Probation Agreement” or “Stay and Pay” settlement agreement.  If the landlord wants the tenant to vacate the rental premises, counsel is encouraged to prepare in advance a “Discharge of Lease” or “Buy Out Agreement.”  These tools often expedite and crystalize the needed mode of resolution.

    Insurance. Where the tenant vs. landlord damages claim, or landlord vs. tenant damages claim, sounds in tort, participation by  the insurance carrier for the alleged tortfeasor is critical.   An upper level senior insurance representative should be requested, at least two weeks in advance of the mediation (either by counsel or by the mediator), to attend the mediation.  Insurers are often a key source to fund a settlement in a landlord/tenant damages case.

    Person with Authority in the Room. Often, corporate landlords or corporate tenants send a low or mid-level representative to the mediation – and these people, sometimes, lack authority to settle the case.  They tend to make phone calls to the ultimate corporate decision-maker (at home office) in the late afternoon of the mediation seeking to obtain settlement authority needed to close the deal.   Too often, this delays resolution and closure of the mediation.  The better practice is for counsel (and/or the mediator) to arrange for the ultimate corporate decision-maker to attend the mediation in person.  Such participation expedites resolution of the dispute at the mediation, and avoids delay in settlement resolution or having to set a second mediation session when the ultimate decision-maker with authority appears at the mediation.

    The Apology. The power of the apology applies in landlord-tenant cases.  Where the alleged breaching party extends a heart-felt apology to the other side, a change in mood can occur, usually a softening of position by the aggrieved party.  Timing is everything.  Sometimes, the apology should occur during the initial joint session; sometimes toward the close of the mediation when the mediator brings the parties together to discuss breaking an impasse.  When presented at the right time in the appropriate manner (usually said in less words than more is most effective), there can be a break through toward settlement resolution.

    Attorney’s Fees. Landlord-tenant cases often involve a lease or rental agreement with an attorney’s fees clause.   This can result in the attorney’s fees driving the case, with each side insisting on recovering their fees in addition to other relief.  To exploit this wild card, attorneys in such cases are encouraged to bring to the mediation a print out of all their time (with appropriate redactions of certain description of work performed) and permit the Mediator to show that redacted print-out to the other side (in private caucus) so that the Mediator can explain the exposure to a judgment for legal fees incurred by the other side  – which can increase much more if litigation continues.  This often incentivizes parties to settle the landlord-tenant lawsuit at the mediation.

    -Robert J. Sheppard, Esq.

  4. Jury Trials: Can ADR Save an Endangered Resource?

    April 30, 2012 by Resolution Remedies

    As reported on the front page of the San Francisco Chronicle on Friday, March 2, 2012, there is a new push to put an end to the death penalty in California. The motivation is not the debate about crime and punishment: it’s financial. In 2008, a state commission found that the death penalty was costing California $137 million a year for trials, appeals, and maintenance of Death Row. Eliminating the death penalty, substituting life in prison without parole, would save $126 million a year. Other studies place the spending even higher.

    Few would quarrel with the fundamental right to jury in criminal cases, guaranteed by the U.S. Constitution. But what of civil cases? Ms. Jones wants a jury trial when she sues her boss for harassment. Mr. Smith wants a jury to assess the value of his back pain since he was hit by a drunk driver. Is the boss, or the drunk driver, entitled to defend the case before a jury? Is the state obligated to provide each and every citizen with the right to a trial, by jury, in any case over the small claims limit? In Marin, to conserve court resources, the small claims limit is being raised to $10,000, in part to reduce the number of cases on the trial track.

Resolution Remedies | ADR Professional Panel | Meet Resolution Remedies | Alternative Dispute Resolution | Dispute Specialities | About Resolution Remedies | Offices | Contact Resolution Remedies