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  • CADRe: Code of Civil Procedure Section 1281.85
    identification of the prevailing party the names of the parties attorneys and the amount of monetary damages awarded if any In order to preserve confidentiality it shall be sufficient to give the name of any party who is not a party to the pending arbitration as claimant or respondent if the party is an individual and not a business or corporate entity 4 The names of the parties to all prior or pending noncollective bargaining cases involving any party to the arbitration or lawyer for a party for which the proposed neutral arbitrator served or is serving as neutral arbitrator and the results of each case arbitrated to conclusion including the date of the arbitration award identification of the prevailing party the names of the parties attorneys and the amount of monetary damages awarded if any In order to preserve confidentiality it shall be sufficient to give the name of any party not a party to the pending arbitration as claimant or respondent if the party is an individual and not a business or corporate entity 5 Any attorney client relationship the proposed neutral arbitrator has or had with any party or lawyer for a party to the arbitration proceeding 6 Any professional or significant personal relationship the proposed neutral arbitrator or his or her spouse or minor child living in the household has or has had with any party to the arbitration proceeding or lawyer for a party b Subject only to the disclosure requirements of law the proposed neutral arbitrator shall disclose all matters required to be disclosed pursuant to this section to all parties in writing within10 calendar days of service of notice of the proposed nomination or appointment c For purposes of this section lawyer for a party includes any lawyer or law firm currently associated in the practice of law with the lawyer hired to represent a party d For purposes of this section prior cases means noncollective bargaining cases in which an arbitration award was rendered within five years prior to the date of the proposed nomination or appointment e For purposes of this section any arbitration does not include an arbitration conducted pursuant to the terms of a public or private sector collective bargaining agreement 1281 91 a A proposed neutral arbitrator shall be disqualified if he or she fails to comply with Section 1281 9 and any party entitled to receive the disclosure serves a notice of disqualification within15 calendar days after the proposed nominee or appointee fails to comply with Section 1281 9 b 1 If the proposed neutral arbitrator complies with Section 1281 9 the proposed neutral arbitrator shall be disqualified on the basis of the disclosure statement after any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after service of the disclosure statement 2 A party shall have the right to disqualify one court appointed arbitrator without cause in any single arbitration and may petition the court to disqualify a subsequent appointee

    Original URL path: http://www.sbcadre.org/CADRe/rules/ccp1281.htm (2016-02-13)
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  • CADRe: Code of Civil Procedure Section 1775
    facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement b Unless otherwise specified in this title or ordered by the court any act to be performed by a party may also be performed by his or her counsel of record 1775 2 a This title shall apply to the courts of the County of Los Angeles b A court of any county at the option of the presiding judge may elect whether or not to apply this title to eligible actions filed in that court and this title shall not apply in any court which has not so elected An election under this subdivision may be revoked by the court at any time c Courts are authorized to apply this title to all civil actions pending or commenced on or after January 1 1994 1775 3 a In the courts of the County of Los Angeles and in other courts that elect to apply this title all at issue civil actions in which arbitration is otherwise required pursuant to Section 1141 11 whether or not the action includes a prayer for equitable relief may be submitted to mediation by the presiding judge or the judge designated under this title as an alternative to judicial arbitration pursuant to Chapter 2 5 commencing with Section 141 10 of Title 3 b Any civil action otherwise within the scope of this title in which a party to the action is a public agency or public entity may be submitted to mediation pursuant to subdivision a 1775 4 An action that has been ordered into arbitration pursuant to Section 1141 11 or 1141 12 may not be ordered into mediation under this title and an action that has been ordered into mediation pursuant to Section 1775 3 may not be ordered into arbitration pursuant to Section 1141 11 1775 5 The court shall not order a case into mediation where the amount in controversy exceeds fifty thousand dollars 50 000 The determination of the amount in controversy shall be made in the same manner as provided in Section 1141 16 and in making this determination the court shall not consider the merits of questions of liability defenses or comparative negligence 1775 6 In actions submitted to mediation pursuant to Section 1775 3 a mediator shall be selected for the action within 30 days of its submission to mediation The method of selection and qualification of the mediator shall be as the parties determine If the parties are unable to agree on a mediator within 15 days of the date of submission of the action to mediation the court may select a mediator pursuant to standards adopted by the Judicial Council 1775 7 a Submission of an action to mediation pursuant to this title shall not suspend the running of the time periods specified in Chapter 1 5 commencing with Section 583 110 of Title 8 of Part 2 except as provided in this section b If an action is

    Original URL path: http://www.sbcadre.org/CADRe/rules/ccp1775.htm (2016-02-13)
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  • CADRe: TRADE SECRET MEDIATION: Negotiating Beyond The Distrust
    it may be addressed during the mediation and so that counsel does not argue an unsupportable position to the detriment of the client Respond to Communications From Opposing Counsel Very often an overlooked or delayed response to an email the failure to return a phone call or a rude comment may be interpreted by opposing counsel as a sign of disrespect which can fan the flames in an already heated situation and affect a party s willingness to settle Resist the temptation to lobby a rude or disrespectful comment in response to one received from opposing counsel Promptly respond to communications in a professional manner to reduce the chance of misunderstandings and to keep the channels of communication open Try to Develop Some Level of Trust and Cooperation If At All Possible Trade secret mediations often turn on the level of trust and cooperation between the parties It is extremely helpful to establish an agreement that the parties will act in good faith during the mediation session If Plaintiff s counsel has any suspicion the defendant is playing hide the ball or defendant s counsel feels plaintiff is seeking to engage in a fishing expedition it will be difficult to obtain concessions from a party or reach settlement The more open honest transparent and authentic each party is or each party appears to be the less contentious the mediation will be and the more likely a settlement can be reached Even if the parties cannot develop a level of trust it is helpful to reach some basic level of cooperation to assist in reaching settlement Conduct a Thorough Investigation The First Time Around Counsel both in house and outside law firm who do not have experience with trade secret disputes or who are not familiar with the internal workings of computer software networks IT departments and staff should promptly seek the advice of trade secret counsel or a consultant This will help to ensure that employees and contractors are properly instructed on how to search internal systems networks to conduct successful witness interviews by asking the right questions to ensure the investigation is complete so there are no surprises later on and to avoid spoliation of evidence An incomplete or faulty investigation especially if discovered during the mediation may raise suspicions and require the session to be suspended so that a supplemental investigation can be performed resulting in increased time expense and frustration for all involved Accept That You May Never Get All the Answers Trade secret cases often involve a substantive investigation into a party s computers networks systems and personnel to discover if trade secrets have been wrongfully misappropriated Depending on the manner in which systems and software are configured whether company policies are were in place and the availability and reliability of witnesses it may not be possible to develop a full picture of whether misappropriation has actually occurred There usually comes a time when counsel and client must accept this fact and decisions must be made

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=94 (2016-02-13)
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  • CADRe: LACK OF PREPARATION (The Hidden Malpractice)
    trial date was set plaintiff s counsel brought in posters with professional drawings of the step by step surgical procedures performed on his client He also had a container of the hardware that had been used to stabilize the bone fractures she suffered These were laid out on the table similar to what would occur at trial Several other equally moving tangible exhibits were presented The case settled for over 1 000 000 00 for the client of Martin Pulverman It was not long afterward that I mediated another case involving a similar injury surgery and special damages but that case settled for far less Only written reports were submitted of the injuries of plaintiff her surgery and aftermath Other attorneys have had videos compiled of witnesses being interviewed including doctors family members co workers and others Robert Patterson has done this successfully The most elaborate was one presented by Brown Green s firm which included narration by a newscaster This was in a case involving the molestation by a coach of a female student athlete The preparation does not need to be as elaborate or expensive as some of the examples given above especially in low damage cases but it should be more than simply submitting medical reports and billing in most instances If there are expectations of a large settlement the reason why should be demonstrated effectively Thinking creatively and putting oneself in the shoes of the other side and the jury helps to generate ideas of what can be done to have a more powerful effect on the opposing side than the run of the mill items usually submitted The words in a brief such as life threating injuries or devastating effect are worn out so too from the defense side are phrases such as the force of impact was minimal What the mediator and other side will respond to best is some demonstration backing up familiar words and phrases Actual X rays or MR films and photographs of vehicles for example are far better than verbal descriptions Actual quotes from reports research studies and depositions where they represent powerful evidence are helpful as well Avoid leaving important points to the imagination of the opposing side or mediator Attorneys should also be sure to have what they need well prior to the mediation Unless for tactical reasons something should not be disclosed too early it is best to exchange that which is expected to be moving to the other side At least have these items at your fingertips at the mediation If the suit involves damages especially where an insurance carrier is involved it is a must to have the damages calculated and the evidence supporting damages given to the other side well in advance of the mediation or settlement discussions Getting authorization for settlement amounts is now a cumbersome process and can rarely be done quickly or changed after minds are made up at the insurance claims or home office While examples above relate to personal

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=93 (2016-02-13)
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  • CADRe: NUMBERS WITH A MESSAGE Effective Negotiation in Mediation
    of what the party believes will occur at trial Some have referred to the first offer as setting the first goalpost with the response setting the other The negotiation then takes place within these goalposts Plaintiff typically makes the first move Many times the beginning of a negotiation or mediation are crippled by a tendency on the part of an opening party to be extreme with their first number or terms There is already a built in reason for lack of trust so when a party determines to be extreme hope for sufficient trust to make reasonable progress dissipates One faced with an extreme position feels compelled to respond in kind It is difficult to recover when this occurs and the parties will usually suffer the ordeal of small incremental moves thereafter leaving them hopelessly separated from a reasonable zone within which to negotiate The mediation either ends early or the parties eventually find a way to negotiate effectively Good mediators are able to assist in this respect A reasonable zone is often not in the middle of the two starting numbers or terms because one party begins far too high or too low Results of studies have pinned the blame mostly on plaintiffs but defendants share the blame a good percentage of the time Those experienced in mediation are familiar with bracketing which is one way out of the ditch of repetitive uncooperative moves One side will offer to move a great deal setting out a number or terms which gravitate toward a more realistic range and at the same time condition this move upon the other side moving to a particular number or set of terms It s an offer to set both goal posts simultaneously and toward a more reasonable zone within which to negotiate For example a plaintiff may be at 500 000 00 and the defendant at 50 000 00 A bracket from a defendant may be I will move to 100 000 00 if you move to 300 000 00 signaling a midrange settlement of 200 000 00 This may or may not be reasonable but it can result in breaking a logjam Even if the bracket terms are not accepted by the other side a strong message has nevertheless been sent as to perhaps more reasonable parameters within which to continue negotiating The other side if rejecting the proposed bracket may nevertheless be willing to offer a bracket of their own which in turn proposes a new range within which they are willing to negotiate As a result the parties are more likely able to break out of the deadlock they were headed for This can produce progress But why not do better in avoiding the extreme openings and responses Delays and frustration can be avoided along with the unnecessary risk of negotiation breakdown if the parties begin more realistically This can be done by giving a coherent message along with the number or terms proposed If one needs to credibly justify what

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=92 (2016-02-13)
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  • CADRe: DIFFICULT PEOPLE Effecting Change in How We Handle This Fact of Life
    the other challenging traits as well These difficult individuals have gotten used to others reacting in a certain way with them Often others either lack emotional intelligence or just don t care to practice it with a difficult person They too react in a negative fashion Because of this the troublemaker is usually stunned when someone reacts differently or does not seem to react at all They normally become disarmed as they attempt to understand what is happening They are not getting the response they expect They may intensify their rude behavior but eventually realize it will not have the emotional affect they desired or are accustomed to Either way they don t get what they want from it The key appears to be doing that which is counter intuitive In this way the process that is or would be impaired by negative behavior is not This of course is conditioned upon the interaction continuing Whether it continues is usually left to the would be troublemaker Most often they will go on even if their tactics or tantrums are failing them In a recent divorce mediation the husband stood up and over his wife spewing his anger at her She sat calmly and said stop it please sit down and be civil She wasn t rattled It was she who was in control rather than the one attempting intimidation The husband s tactics did not work The mediation went forward and a settlement was reached We also should not assume beforehand a person will be difficult because of preconceptions I found in mediating a matter with a world champion Ultimate Fighter that he was not at all as expected and the matter settled without hostility We can cause negative behavior by treating someone as if they are being difficult before they actually are In addition to not reacting in kind or exhibiting difficult behavior ourselves in response to another s rude behavior we can take another counter intuitive approach which is usually quite productive that is to act positively toward the person You can actually mean it if you wish It s usually better if you do Realize that usually a person whose ego is out of whack or who is excruciatingly negative or rude cannot be having a great life I internally express thanks I m not living in their head and I certainly don t want them occupying space in mine You won t be exchanging birthday presents and they won t become your BFF but in that time you work with each other you will almost always find the going is easier and the prospect of a positive result for your client increasing exponentially This is after all the goal There is hope and evidence of change in the legal profession One is the advent of mediation The other is the result of ongoing efforts to dissuade and eventually eliminate hostility and shameful behavior by lawyers and others in the judicial system We are able to change

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=91 (2016-02-13)
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  • CADRe: FAQ: MEDIATION VS. ARBITRATION
    compel the parties or force them into a settlement agreement A mediator s technique and approach varies on a case by case basis Commonly the mediation will begin in a joint session with all parties present to discuss the issues face to face The mediator s role is to help maintain the parties focus on these issues during the entire course of the proceeding The mediator will then hold private sessions with each side talking in greater detail about the respective positions of each party The mediator will use the private session forum to exchange messages between the parties foster clarifications carry questions and proposals to each side The mediator also uses the private sessions to facilitate negotiations by transmitting offers and counteroffers between the parties Throughout this process the mediator must maintain confidentiality and neutrality stay away from giving advice and not force parties into settlement while facilitating communications with the parties Should the parties be successful in reaching an agreement the mediator can work with the parties to draft the terms and conditions of the settlement In some cases the mediator s role will continue after the scheduled mediation by providing help to complete the settlement agreement Any agreement reached during the mediation is intended to be binding with to respect to the issues in dispute What happens if there is no settlement agreement The parties may end up unsuccessful in reaching an agreement which many times then lead to the filing of a lawsuit However the mediation then is a learning process and one unsuccessful attempt does not mean the dispute must result in a lawsuit being filed If a lawsuit is filed after an initial mediation the court can offer mediation again to be considered by the parties before any trial by judge or jury occurs What are the costs and time involved to participate in Mediation The mediator s fee can range from as low as 100 00 per hour and be as high as 500 00 per hour and higher based on a daily rate This fee is divided equally among the number of parties unless another arrangement for payment is made Where a lawsuit has been filed the mediator s fee may be paid by the court depending on the amount in controversy and the county where the lawsuit is pending The amount of time to conduct mediation is never set to a limited quantity Many cases depending upon the complexity of issues may involve multiple sessions with each session encompassing 6 8 hours Some mediations can be completed in as few as 2 4 hours What is Arbitration Arbitration is another Alternative Dispute Resolution ADR process where the parties select an attorney or a retired judge to conduct a hearing Witnesses are sworn in and testimony is presented Evidence can also be offered by way of documents and writings The same rules of evidence admissibility in court are used during the arbitration hearing Once the case is presented by all sides a

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=90 (2016-02-13)
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  • CADRe: THE MEDIATOR’S ROLE
    role is to help maintain the parties focus on these issues during the entire course of the proceeding The mediator will then hold private caucus sessions with each side talking in greater detail about the respective positions of each party The mediator is not expected to disclose information obtained in private sessions What is shared from private sessions is dependent on the rules of confidentially that are arranged beforehand by all sides The mediator will use the private caucus forum to exchange messages between the parties foster clarifications carry questions and proposals to each side The mediator also uses the private caucuses to facilitate negotiations by transmitting offers and counteroffers between the parties Throughout this process the mediator must maintain confidentiality and neutrality stay away from giving advice and not force parties into settlement while facilitating communications with the parties Should the parties be successful in reaching an agreement the mediator can work with the parties to draft the terms and conditions of the settlement In some cases the mediator s role will continue after the scheduled mediation by providing help to complete the settlement agreement Throughout this entire process the rules of mediation confidentiality will remain in force and effect preventing anything being prepared or said during the mediation to become admissible at any later proceeding or hearing Also the mediator cannot be called to testify about what was said at the time of the mediation Mediators do not have a stake in the outcome of the mediation As a result parties can be assured that when they select a mediator impartiality will be present Mediator selection can be accomplished by viewing public or private panels All Superior Courts in the Tri county area have public panels of mediators These mediators can be hired to work pro bono or for a fee Each panelist often has specialty areas of practice Resumes may be requested to view a mediator s background and specialty area along with their own fee schedule Mediators are required to be certified before they will be considered for placement on public or private panels The certification process requires a specified amount of attendance at specialized training locations where methods of mediation and negotiation are presented by skilled instructors There are no requirements for continuing education of mediators however many mediators often continue to refine and develop their skills by attending ongoing training sessions and seminars that are offered to help the mediator become a more accomplished practitioner Mediators are also available for hire to instruct on their own detailed methods of mediation that can be used in the workplace Once a mediator is selected a venue is determined either by the parties or the mediator may have locations to conduct the mediation Again neutrality is the goal so it is in the best interests of the parties to find an impartial location to conduct the mediation Courthouse conference rooms often can be used to assure an impartial setting Other choices include public administration conference rooms or

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=89 (2016-02-13)
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