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  • CADRe: MEDIATION TIP #5: “Be Real: Condolences, Apologies, & Sincere Concern.”
    the other side because one is supposed to in mediation or to gain advantage in a monetary negotiation will be correctly perceived as a hollow gesture In other words be real Consider the following unfortunate example Plaintiff filed a complaint alleging egregious misconduct sexual harassment In six months of discovery Plaintiff s counsel attacked Defendant s credibility at every turn In mediation however Plaintiff s attorney began with a well rehearsed statement of gratitude for the defense agreeing to the collaborative process and expressed a heartfelt concern for Defendant s pain in the costly and contentious litigation process This attorney s statement was not grounded in reality The attorney was not Defendant s friend was the cause of much of the misery of litigation and sought to gain financially by the outcome By an essentially false statement he had established that he would not speak the truth at mediation The task of finding resolution became even tougher exactly the opposite of the intended effect In the joint session of a contentious case it is far better to acknowledge the bitterness of the battle and the dramatic variance of the stories told by each side From this position of reality further comment on the wisdom of compromise in the face of conflicting evidence or the uncertainty of a jury verdict will have the ring of truth There are mediations in which an apology makes sense When liability is relatively clear and the loss is real it may be the one thing a Plaintiff needs to hear from a Defendant or her representatives All communication is confidential in mediation Evidence Code 1119 so there is no down side for the defense Missing an opportunity to acknowledge the obvious only diminishes credibility making it tougher for the Plaintiff to consider arguments for reasonable

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=71 (2016-02-13)
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  • CADRe: MEDIATION TIP #4: “Be Creative in the Joint Session.”
    of resolution In disputes with ongoing personal or business relationships item 4 the Culture of Resolution may be the most important In a typical litigated dispute items 1 3 will predominate If any of these goals are significantly undermined the prospect for settlement is reduced Where does the creativity come in In working with the mediator in advance on the structure content and tone of the joint session for each case You may need to initiate this discussion some mediators will not There are many creative ways to structure the interaction There are no rules Thoughtful attorneys and mediators can fashion a joint process in any way that works A typical closing argument type presentation can be useful if the advocates are civil and the content of the case is not highly emotionally charged In those more heart wrenching cases wrongful death molestation crippling injury business collapse etc a modified joint session may be best Some examples include Professionals Only Invite the clients who cannot bear the painful discussion to wait elsewhere Explain in advance that this is done out of sensitivity for their grief and that all important information will be conveyed more comfortably in private Partial Client Attendance If a client needs to hear their case presented day in court but would not constructively receive the other side s presentation excuse that client after their attorney speaks and have an in depth discussion thereafter Prep that client not to be locked in to the story presented by her own lawyer and to expect other points to be discussed privately On the other hand sometimes it is important for a client to experience the pain of hearing the unpleasant realities from the other side Limited Issues When some issues will never be a source of consensus and are well

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=70 (2016-02-13)
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  • CADRe: MEDIATION TIP #3: “Pre-Mediation Negotiation”
    much a jury awarded for business losses and punitive damages if any No discussion of numbers occurred between the parties before mediation The defense hoped plaintiff would be happy with 750 000 to 1 million but did little to condition plaintiff for such a number Plaintiff hoped for 3 5 million or more but gave no clues in advance Briefs were not exchanged The insurance carrier came to mediation with insufficient reserves and the plaintiff with unrealistic hopes If numbers had been floated in advance it would have begun the process of adjusting expectations before mediation The case required a second session to resolve with a lot of effort by the mediator to soothe frayed emotions from the first session Neither side was unreasonable Both sides simply missed opportunities to adjust the expectations of the other In a routine case where most attorneys will know the settlement range i e a simple PI or business accounting case it may work to float numbers for the first time at mediation Usually no one will be surprised or caught unprepared by the proposals But even here there is no down side to floating a pre mediation settlement proposal and encouraging the opponent to do likewise It will help define the brackets within which a fruitful negotiation may unfold If you are uncomfortable making a pre mediation proposal at least sound out your opponent about the range to make sure the case is ready for negotiation There are many creative ways to do this in casual conversation without revealing too much For instance compare your case to another similar case which settled or went to verdict at a stated figure and solicit a responsive comment Suggest that the case value is more or less than a familiar benchmark policy limit appraisal value six

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=69 (2016-02-13)
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  • CADRe: MEDIATION TIP #2: “No Surprises Please!”
    realm and had wasted time and money preparing for a very different negotiation A variation on the theme is when one side springs new devastating evidence for the first time at the mediation shifting radically the realistic range for negotiation In either case the surprise tactic renders the opponent unable to participate without more time to evaluate the new position or evidence wastes resources and destroys trust needed to best negotiate resolution Why does this happen so often in mediation Often it is simply lack of preparation If counsel does not really understand the merits of a case or the client s desires until the day before mediation there is little chance that the expectations of the opponent can be well managed Remember managing the expectations of the opposition before mediation is the key to a successful negotiation This problem may also result from speaking loosely about settlement numbers with opposing counsel Once a number falls from your lips it is not forgotten For instance in a recent mediation the plaintiff s attorney complained to me that the defense was only at 50 000 after 3 hours when defense counsel had suggested last month and the plaintiff had been told to expect a real range of about 200 000 Be very wary of loose talk about numbers There are sometimes legitimate reasons for a last minute change of position even with diligent preparation A key witness may be located The definitive new appellate case may appear Sub rosa films just received may prove that plaintiff is a fraud Or your client may demand an about face in your position justified or not What should you do if positions must legitimately shift on the eve of mediation Immediately tell the opposition and explain why If awkward ask the mediator s advice

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=68 (2016-02-13)
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  • CADRe: MEDIATION TIP #1: “Manage Their Expectations Before Mediation.”
    about your case or your negotiating position especially in a significant case gives other counsel little chance to condition their client for what needs to happen No insurance or corporate professional can be prepared with adequate authority without a sense of your expectations and strengths Plaintiffs find it hard to rethink a case or their life while at mediation if they did not see the arguments coming So why are so many lawyers reluctant to communicate merits or positions before mediation There are two familiar reasons First we are trained to be trial advocates and share as little as possible The more we surprise the opponent at trial the better Second we feel awkward conveying messages that might be poorly received and want a skilled mediator to handle the painful messages We might even blow the mediation off calendar if we tell the other side what we really think These are valid concerns but must not stop us from skillfully preparing the other side If over 90 of all cases settle with or without mediation getting to a fair settlement economically is at least as important for our clients as saving a few cards to show in court To strike the right balance ask yourself three questions going into mediation Does the other side know at least generally what my opening position will be at mediation If you are afraid that you might scare them away before the mediator gets the case send general messages or hint at ranges that would not be acceptable We lawyers are great communicators so find a way to get the message across If all else fails ask the mediator to sound out the other side in advance Does the other side know most of my best points and appreciate that I understand theirs If

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=67 (2016-02-13)
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  • CADRe: Winning Through Mediation ©
    bringing about a settlement there can be a substantial savings to the client in legal fees court costs and the client s own time and expense This is certainly a factor that the lawyer and client should consider at the earliest stage of the litigation process B Remove Uncertainty One of the great benefits of mediation is that it takes the uncertainty out of the litigation process and allows the parties themselves to determine their own destiny There is a great value to the client in eliminating this uncertainty Hypothetically what if someone could accurately gauge your chances for success at trial and estimated that you had a 70 chance of obtaining a verdict in your client s favor You would probably feel pretty good about your chances and be eager to take your case to court But is it really worth it to take that 30 risk What is the potential loss for your client Even if the client is successful there may be an additional risk in collecting the judgment or a risk in the opponent taking an appeal By way of comparison what if you had an injury and a doctor told you that the problem could be resolved through surgery which had a 70 chance of success Would you be as enthusiastic to go forward with the surgery knowing that there was a 30 chance that the injury would not be any better after the surgery Most people would probably be hesitant to elect surgery knowing those odds as well as knowing that there are risks of complications following surgery and that even successful surgery requires rehabilitation afterwards It is safe to say that most people would elect more conservative treatment and would resort to the surgery only as a last alternative The question then is why people are risk averse when it comes to decisions concerning medical treatment yet risk seeking when it comes to litigation One answer may be that the client may not fully understand the risks of litigation in the same way they understand the risks of surgery which are usually explained in detail by the surgeon The client also might not understand that he or she has alternatives to litigation and what those alternatives involve It is our responsibility as counsel for our clients to fully apprise them of the risks involved in litigation and to inform them of alternatives which can remove the risk and uncertainty In so doing the client will be able to give an informed consent to litigation or to be armed with information to choose a less risky alternative such as mediation C Allow for Interaction Closure Another benefit to mediation is the opportunity it provides the parties to face each other and air their grievances in a setting that is safe and confidential The parties are informed by the mediator that everything that is said in the mediation room will be kept in confidence and neither the mediator nor any of the parties can be

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=66 (2016-02-13)
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  • CADRe: Mediation Confidentiality Uncertainty--A Donnybrook between Mediation Associations
    added that the power of individual trial judges to conduct balancing tests to determine what information is discoverable in the same way they determine what information is protected by the attorney work product privilege opens up Pandora s box to abuse by sympathetic trial judges The Amicus Brief by SCMA On May 20 2003 SCMA filed an amicus brief in Rojas which was signed by Wendy Lascher Ventura appellate specialist and Jeff Kichaven a fulltime neutral practicing in Southern California and SCMA board member In what surely sent shock waves through the mediation community SCMA s brief takes the opposite view regarding absolute confidentiality The brief set forth the perspective that absolute protection from review would allow unscrupulous attorneys or parties to participate in mediation for the undisclosed purpose of being later able to declare that evidence used in mediation but which later became unfavorable is not admissible or discoverable because it was prepared for mediation SCMA supports its argument based upon the reality that in many cases mediation is part of a continuum that includes elements of negotiation and litigation i e the mediation itself resembles a mini trial or mock trial 2 In the litigated mediation case there is no clear distinction between facts learned prepared and or produced for various events along that continuum whether in mediation a settlement conference discovery or trial In other words SCMA argues that mediation must not become a tool to bury unfavorable evidence Adding an unusual twist SCMA points out that the case management order demanded that the parties engage in mediation and that each session would be deemed a mandatory settlement conference SCMA points out that the Evidence Code sections creating mediation confidentiality exempts from its protection information exchanged at a mandatory settlement conference Evidence Code section 1117 b 2 Along the same line of reasoning SCMA urged the Supreme Court to carefully review the part of the Rojas case management order in which the trial judge empowered the same person to act as mediator and special master to resolve all discovery disputes SCMA finds this inherently coercive as a mediator vested with neutrality for the purposes of mediation should not also have the power to made important decisions that may affect the litigation process Such combined powers allow for supervisory and even coercing power over the litigation Last SCMA argues that Evidence Code section 1119 is best interpreted to provide confidentiality only for evidence prepared for and or used in mediation if from the outset it is declared by the proponent to be protected from later use in litigation Without such an agreement SCMA would extend the ban its later use at trial SCMA adds that this construction of section 1119 would best protect the integrity of litigation and is fair By comparison hybrid materials prepared for and or used in negotiation and or litigation but also used or referred to in mediation would according to other rules continue to be subject to discovery and or introduction into court

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=65 (2016-02-13)
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  • CADRe: Mediation Confidentiality: It Depends….
    which occurred during the mediation and which the trial court relied upon in finding one party acted in bad faith during the mediation Foxgate distinguished cases widely perceived in the mediation community to threaten the confidentiality of the mediation process such as Rinaker v Superior Court 1998 62 Cal App 4th 155 and Olam v Congress Mortg Co N D Cal 1999 68 Fed Supp 2d 1110 In interpreting Evidence Code sections 1119 and 1121 Foxgate holds that the statutory scheme does not allow a trial court the power to fashion an exception for bad faith in mediation Ibid p 17 and further holds that the sanctions imposed for bad faith conduct may not be proven by statements made by the mediator based upon observations made during the mediation In the unanimous decision to grant review of Rojas the Supreme Court may well find that the mediation privilege statutes did not confer upon the trial court the power to fashion an exception for forced disclosure of raw evidence The Work Product Doctrine The attorneys work product rule is not a privilege defined by the Evidence Code sections 900 et seq but is often referred to as a doctrine Its purpose is to protect the attorney s right to prepare materials for the client s benefit and to prevent parties from taking unfair advantage of an adversary s efforts BP Alaska Explorations Inc v Sup Ct 1988 199 Cal App 3rd 1240 1256 the work product privilege exists to promote the adversary system by safeguarding the fruits of an attorney s trial preparations from the discovery attempts of the opponent The work product rule protects information from invasion by opposing parties in order to encourage effective trial preparation Where the material sought in discovery or by subpoena is clearly an attorney s opinions impressions conclusions and theories it will receive absolute protection independent of whether it was communicated by the attorney to the client Ibid See points and cases California Practice Guide Civil Procedure Before Trial Rutter sec 8 238 3 et seq Most materials such as memoranda photographs witness interview notes summaries of documents etc generally raise thorny issues in discovery disputes because the facts often present a hybrid of the attorney s opinions etc with other material generated or gathered on behalf of the client Where it is not crystal clear the decision to force disclosure of such conditionally protected matter is based historically upon a doctrine of necessity and the obligation of the party seeking discovery to prove that there was no other alternative The work product of a lawyer is not subject to discovery except in cases of necessity e g where witnesses are no longer readily available Hickman v Taylor 1947 329 U S 495 absent showing of necessity plaintiffs denied access to oral and written statements taken by attorney from survivors of a boat accident Under California statutory protection and interpretation the work product doctrine protects the right of the attorney to properly prepare the

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=64 (2016-02-13)
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