CADRe: MAKE SURE YOU AND YOUR CLIENT ARE ON THE SAME PAGE - A GUIDELINE FOR ACHIEVING SUCCESS AT MEDIATION show up at mediation and learn for the first time that they are considered to be fabricators of facts and evidence Giving this information to your client during the pre mediation meeting will help them develop filters for the information in order to maintain composure during the proceeding You do not want your client to act startled when they hear the contentions of the other side for the first time Mediation Format Your client will likely be a rookie at the mediation Unfortunately many parties step into a mediation believing that the mediator is going to be acting the same as a judge or arbitrator expecting a decision order or ruling to be made Therefore it is vital that your client be advised of the voluntary and confidential nature of the mediation proceedings They must know beforehand that the purpose of the mediation is to facilitate dialog informally without the intimidating drama of a courtroom It is good to give your client an understanding of who will be conducting the mediation In many cases a pre mediation telephone conference with the mediator and attorney to discuss the case and procedure will be completed Give to your client a profile of the mediator from a website This profile will disclose to your client background information and a visual image of the mediator And you can explain what the likely course of procedure will be for the mediation There is no reason for your client to find out these details at the mediation Strategy at Mediation A strategy plan must be developed with regard to role playing along with negotiations The client needs to know that questions may be directed to them by the other side in joint session or in private session by the mediator It is important for the client
CADRe: GET YOUR WORK DONE WELL IN ADVANCE A GUIDELINE FOR ACHIEVING SUCCESS AT MEDIATION ADR with your adversary should you find that they are unfamiliar with the CADRe program the website will educate them quickly It allows those who are not experienced with the CADRe program to view all panelists including bio information and fee rates Counsel is also entitled to select a mediator from outside the CADRe panel for a Santa Barbara Superior Court case Once counsel has made the decision to pursue ADR a stipulation needs to be filed immediately in order to take the case off the court radar screen In effect there is no reason to wait for a Case Management Conference to determine if ADR is appropriate Evaluation for ADR options should be done early to avoid unnecessary costs and expenses Gathering Information on a New File Many offices use templates to introduce the law firm to the client Those first contacts with the new client will show the amount of work required to keep the case active and updated A cooperative client provides accurate and complete information and sometimes to a fault contacts the handling attorney too often with regard to status On the other hand the uncooperative client who never returns phone calls never returns mail and never makes themselves available for scheduling needs to be given extra attention so that deadlines are not missed One method to gain control of the client in the gathering of information is to present the initial contact letter with a questionnaire based on potential discovery Sending a client a multi page questionnaire fashioned after Judicial Council Interrogatories and common CCP 2031 document demands can speed up the preparation of future discovery Another method of expediting discovery is to allow for voluntary record release instead of subpoenas The release can be specially tailored for the facts of the case for the purpose of privacy and relevance Litigators should expect the uncooperative client and err on the side that the client will be difficult This will make the receipt of information from a cooperative client all that more rewarding Office templates customized to future discovery and using voluntary record releases will save countless hours of work This will help keep the case positioned for ADR Law Motion and ADR In each and every case there is always the decision if you should use discovery or dispositive law and motion Certainly the advantages are that you seek the relief of the court to obtain compliance or to decide a case in your favor The disadvantages are that these motions can set the stage for your case to become a dog fight defeating any initial intentions of pursuing ADR There are alternatives for this wrestling match Currently in the Ventura County Mediation program if parties elect Mediation the court stays all discovery except that allowed under CCP 94 Economic Litigation The Ventura court expects the parties to complete Mediation within 150 days If the case does not resolve the court grants the parties additional discovery beyond the CCP 94 limit It is often difficult
CADRe: TO SETTLE OR NOT TO SETTLE?
MAKE NO MISTAKE ABOUT IT!
Charnay v. Cobert, 145 Cal. App.4th 170 (2007) available at a far less cost Also at issue is whether the attorney assured his client of prevailing at trial Attorneys with integrity should not find themselves in the position of Mr Cobert if he is ultimately found liable on Charnay s claims But as usual all attorneys now must be extra vigilant because of the conduct of a few This is really a continuation of the trend already faced by lawyers because of the misconduct of others For example one element of the CMADRESS Program in the Santa Barbara Superior Court addresses almost exactly what the Charnay case dealt with that is attorneys cannot be trusted to give their clients honest and forthright information about their risks the costs of litigation and what opportunities they have to settle early in the dispute or litigation The CMADRESS Program requires relatively soon after the action is filed that all parties insurance representatives and trial counsel personally appear no exceptions before an appointed mediator who is to give 1 a thorough education of the parties in litigation describing the appropriate dispute resolution methods which may be useful for resolution of the case and how those methods may have an e ffect on the cost of case resolution and 2 an early settlement conference CMADRESS PROGRAM OVERVIEW Summer 2006 Santa Barbara Superior Court www sbcadre org emphasis supplied The court goes on to provide that Full participation by trial counsel in the CMC is critical as is attendance at the CMADRESS session by parties counsel and insurance representatives with full settlement authority The court is fully enforcing this aspect of the program Supra emphasis not supplied This means sanctions It is reported by the Court that the CMADRESS Program has been successful Many more cases are settling at earlier rates than before CADRe Program Report and statistical information www sbcadre org CADRe stats htm It s not the program itself that has caused consternation among some lawyers forced into the process it s the taking away of the lawyers ability to determine when and how to approach various means of settlement with their clients and with the other side A similar feeling pervaded the Bar when delay reduction procedures were put into place forcing lawyers into tight scheduling unless excused by qualifying certain cases as complex Many attorneys felt the courts had become too imposing upon their ability to gage when and how their cases were best handled in terms of timing discovery and other pre trial procedures This overall trend to reign in lawyers seems to be gaining momentum as the public and certain political leaders continue to criticize attorneys and the courts They claim the system is too cumbersome and expensive leaving the average person unable to utilize it as intended Business leaders frequently report their unhappiness with the legal system which means for them a seemingly endless and expensive battle once lawyers get involved SCMA News February 2005 Volume 14 No 1 Another example is a published piece called A
CADRe: LAWYERING WITH EMOTIONAL INTELLIGENCE - THE KEY TO GREATER SUCCESS AND SATISFACTION and action Their minds are not cluttered with negativity and unproductive thoughts Where things go wrong these attorneys see it more as an opportunity to face and get through the circumstance with dignity and grace They don t make excuses or seek to pass out blame They realistically assess the circumstance and calmly take appropriate action They follow the course described in Ben Stein s book How Successful People Win He calls it bunkhouse logic When a cowboy finds that a well on his trail has run dry he doesn t sulk go into a rage or seek to assess blame He sees the circumstance as just a good argument to move on to another water source Attorneys and others with EQ usually stand out in their circles They are comfortable to be around Their clients trust them as do their opponents and judicial officers This is because this attorney takes into account the situation and feelings of everyone around him or her They react and communicate in a manner dictated by the results of their ability to accurately assess the perspectives feelings and perceptions of others within their sphere of influence Gerry Spence How to Argue and Win Every Time describes and explains the aspects of emotional intelligence for lawyers better than anyone He recounts his mistakes early in his practice where he failed to employ this quality After a trial where he had taken a witness apart in blistering cross examination a juror asked Spence Why did you make us hate you so much He had forgotten to take into account the potential reaction of the jury to the manner in which he presented himself He had not empathized with the jury In another example where he used EQ Spence describes his approach when filing a brief He pictures the judge and what it must be like to be that judge He thinks of how the judge must want to throw most briefs at the wall because they have to read so many lengthy boring predictable bombastic and unenlightening briefs On this topic Justice Wickson Woolpert once told me as I was preparing an appellate brief Dave make it interesting and short Abraham Lincoln displayed this quality in his statement that when he would be facing a man to influence him he spent two thirds of his time thinking about what the other would say and one third of the time thinking of what he would say Complete and accurate listening is crucial In the book Making Smart Decisions Harvard Business School Press the authors point out the filters of our mind that compel us to tune out negative information or information disagreeable to us When we do that we will ultimately fail Leadership experts point to this as the single worst trait of leaders who end up getting their company or the country in trouble The company Compaq suffered a huge downturn due to its leaders failure to listen to warnings regarding the inroads being made by
CADRe: GETTING TO THE BOTTOM LINE - GUIDELINES FOR ACHIEVING SUCCESS AT MEDIATION for mediation Attorneys also fail to adequately get themselves familiar with the expectations of their client for purposes of case settlement Be sure to meet with your clients well in advance of the mediation instead of hours before it commences This way you can adequately prepare your client for what may happen from the settlement discussions In that way if bad news does arrive at the mediation it won t be the first time that your client will have heard this information You will not be surprising your client when you explain the reasons for the low settlement offer or the high demand Meeting with your client well in advance will also give you the opportunity to be adequately prepared to explain the case to not only the mediator but to the other side Your meeting with your client in preparation for the mediation may end being one the most important events of the case timeline And doing it far enough in advance will allow you to create persuasive arguments at mediation for your settlement position This will demonstrate that you have strong command of the facts regarding your client and don t have to defer to your client for an explanation of how the accident happened or what caused the breach of contract Get a Handle on Your Case Having met with your client well in advance of the mediation should give you the opportunity to create an outline for purposes of discussing the case intelligently and articulately with the mediator and the other side This outline can be a condensed single page version of your settlement demand letter or case evaluation report with the date of accident or date of breach of contract subsequent treatments relating to an injury matter with costs for treatment or efforts to mitigate a breach of contract and associated damages The documentation to support this does not need to be in any great volume Bullet points setting out dates and dollars works precisely and effectively Also be ready to explain applicable law as it relates to the case This applies both for plaintiffs and defendants Credits and offsets may be present for a damage value that can affect settlement negotiations Don t find out for the first time at the mediation what your client s total medical expenses are as a result of an accident Know why treatments are being discounted and the basis for same The same applies for a breach of contract action Don t look to your client to explain why they have a damage claim as a result of a breach of contract Know the numbers inside and out and be ready to explain applicable law for any liens credits offsets or potential mitigation That way when asked by a mediator does the Hanif case apply you won t have to ask who Hanif is Develop a Strategy for Negotiation in Order to Dance Before getting to the mediation the attorney and client should have an understanding of the
CADRe: CMADRESS - ONE YEAR OLD AND GOING STRONG statistics are regularly updated The statistics speak to the success of the CMADRESS program for both the North and South County More cases have been referred to the CMADRESS program in the South County giving it a numerical statistical advantage However review of the statistics for both locations shows that during the course of one year more and more cases are resolving by way of the CMADRESS program Your New Case and CMADRESS Assignment to CMADRESS begins at a Case Management Conference of any civil case CMADRESS is used for all civil litigation cases determined by the court to have a value in excess of 50 000 00 CMADRESS is not used with family law matters At the time of the CMC when the case is ordered to CMADRESS the parties can also expect that the court will set a Mandatory Settlement Conference date as well as a corresponding Trial date Once ordered to CMADRESS all sides must move promptly to contact the CADRe office within a specific time frame 10 days for assignment of a neutral The deadline imposed by the court to complete the CMADRESS session is now 60 days from assignment of the neutral and this change should be reflected in all future Case Management orders Similar to the CADRe Limited Mediation assignment once a facilitator is assigned to the CMADRESS case the parties and attorneys must initiate contact with the facilitator to schedule a session When the scheduling is arranged within the time line allowed by the court the parties must notify the CADRe office of the date time and place of the session In attempting to schedule the CMADRESS session if the parties and or attorneys find they are unable to conduct the session within the court s 60 day deadline a request for an extension of time can be made This request must explain briefly the reason for the delay and the need for more time Approval is obtained from Judge McLafferty only not the assigned trial judge This rule applies to cases in the North as well as South County The request should also specify the exact quantity of additional time by advising the court of the future CMADRESS session date The extension of time to complete CMADRESS does not apply to the MSC or Trial date Those will remain unchanged if the court approves the request for an extension of time to conduct a CMADRESS session Continuances of the MSC and or Trial Dates must be directed to the assigned Trial Judge and should be joined in by the assigned neutral Participating in the CMADRESS Conducting the CMADRESS for all intents and purposes is the same or similar to that of any Mandatory Settlement Conference or Mediation The necessary parties with full settlement authority are required to attend Telephonic appearances will not be allowed The designated Trial attorney for each side is also required to attend the CMADRESS All sides are encouraged to submit briefs to the facilitator so to better understand
CADRe: Articles s 8 1 2004 SELECTING A MEDIATOR THE IMPORTANCE OF A MALLEABLE MEDIATOR David C Peterson Esq 8 1 2004 MEDIATION TIP 7 Interests Really Matter Even in Money Negotiations Kevin T McIvers Esq 8 1 2004 MEDIATION TIP 6 Use the Mediator Kevin T McIvers Esq 8 1 2004 MEDIATION TIP 5 Be Real Condolences Apologies Sincere Concern Kevin T McIvers Esq 8 1 2004 MEDIATION TIP 4 Be Creative in the Joint Session Kevin T McIvers Esq 7 1 2004 MEDIATION TIP 3 Pre Mediation Negotiation Kevin T McIvers Esq 7 1 2004 MEDIATION TIP 2 No Surprises Please Kevin T McIvers Esq 7 1 2004 MEDIATION TIP 1 Manage Their Expectations Before Mediation Kevin T McIvers Esq 5 1 2004 Winning Through Mediation Edward Lowenschuss Esq 9 1 2003 Mediation Confidentiality Uncertainty A Donnybrook between Mediation Associations Stan Roden 4 14 2003 Mediation Confidentiality It Depends Stan Roden 3 25 2003 Pitfalls of CCP 664 6 Stan Roden 9 1 2002 Approaching Conflict Resolution Mediators Perspectives on Effective Mediation Advocacy Ann Gormican Anderson 8 10 2002 REPORT FROM THE CADRe OFFICE Chris Profio 8 1 2002 Some Random Thoughts and Ideas About Making Your Mediation Successful Robert
CADRe: Articles to CADRe CMADRESS Program Info Program Info Brochure Program Statistics Some Options for Resolving Your Dispute A Publication about ADR Court Rules Events Announcements Contact CADRe Site Map CADRe Panelist Requirements Panelist Removal Policy Ethical Standards California Mediators CADRe Arbitrators Web Submission Instructions Conference Rooms Forms CADRe Panelist Forms Court Forms Current Articles Date Article Title Author s 8 1 1999 CADRe is User Friendly Lee Jay Berman 7 1