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  • CADRe: Pitfalls of CCP 664.6
    For example an attorney for a party who obviously enjoys wide latitude in deciding tactical considerations in litigation management cannot sign the settlement agreement for the client party Levy v Superior Court 1995 10 Cal 4th 578 585 More recently a court held that an agent of various defendant parties i e a manager of a nonprofit corporation formed by several companies named by the parties in complex asbestos litigation for the express purpose of engaging in settlement efforts who had agreed in writing and on the record to a settlement on behalf of the principals lacked the authority to bind those principals at least within the contemplation of CCP section 664 6 The court set aside the settlement and held that CCP section 664 6 requires that all of the settling parties must sign any settlement agreement Gauss v GAF Corp CA 1 2002 103 Cal App 4th 1110 The court concluded that the obligation of each party to join in the settlement is a requirement that will be strictly interpreted against corporations as well as natural parties For example where the trial court found that the husband and the wife s attorney had authority to act on the wife s behalf nevertheless the wife was held not bound by a settlement agreement she did not sign Williams v Saunders CA 3 1997 55 Cal App 4th 1158 1162 1163 See also Cortez v Kenneally 1996 44 Cal App 4th 523 holding agreement signed by a party s attorney and her codefendant spouse not enforceable under 664 6 In the facts from the recent mediation mentioned above there is a serious question whether the defendant party who indicated to the court that he had authority to represent two named parties was empowered to enter into a settlement that will be enforced pursuant to CCP section 664 6 There may be an exception to this principle where an insurance carrier has agreed to defend without any reservation of rights Under those circumstances the carrier s agreement to settle may be binding and enforceable pursuant to CCP section 664 6 even if the insured did not sign the agreement Robertson v Chen 1996 44 CA 4th 1290 1295 6 Rutter Civil Procedure Before Trial concludes that his holding is dictum Section 12 959 Some parties in court others sign agreement At least one possible cure where one party is not present in court is for the party not before the court to subsequently sign the out of court settlement agreement In other words the parties do not have to give consent in the same manner so long as it meets either the in writing or orally on the record tests Elyaoudayan v Hoffman CA 2 2003 104 Cal App 4th 1421 held that in a multiparty action CCP section 664 6 does not require that all parties agree to a settlement orally or in writing in the same manner as long as all parties agree to the same material terms and

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=63 (2016-02-13)
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  • CADRe: Approaching Conflict Resolution: Mediators’ Perspectives on Effective Mediation Advocacy
    important to know your mediator s style in advance but Mr McIvers practice is that if there is something awkward to say to the attorney the attorney is taken aside for a private meeting Ms Rubenstein noticed that the least experienced attorneys appear to fear the most in a mediation setting In that case the mediator acts to educate the lawyers about the process and coach the negotiation Ms Warren reminded that it is often best to go with the other side s suggestion of a mediator you will know that they will have confidence in that person Mr McIvers also mentioned that sometimes fear is warranted and at that point it is prudent to call the mediator in advance and tell him or her what you want and don t want and or what the client wants needs to experience Judge Dodds emphasized that the more information that the mediator has the more he or she can help Approach In approaching mediation Ms Sterne stated simply Know a lot about your case and if you don t know something set the mediation down stream Ensure all discovery and preparation are done Ms Sterne echoed that you should consider talking with the mediator in advance of the mediation you may learn that there is something that needs to be evaluated or discovered to make the mediation more effective Ms Rubenstein explained that the attorney has to act as a counselor and probe to determine the true interests of the client She believed it was helpful to prepare your client to make an opening to say something to the other side and open the possibility of understanding perhaps by a sincere apology Ms Sterne cautioned though that the act of apology has to be handled delicately and appropriately it must be delivered honestly or it could backfire Ms Warren stated that she goes by the motto Mediate early and mediate often because the case may not settle in the first session It s helpful to mediate early to get clear about your case but don t harden your position it s important to come with an open mind and see what ensues Judge Dodds commented that the insurance adjuster has to be there Mr McIvers talked about managing expectations of the parties of the other side and your own client He proposed that well prior to the mediation several weeks in advance the attorneys should get some sense of the opening proposals and get those to their respective clients and or adjusters so key decision makers have an opportunity to evaluate the settlement proposals Mr McIvers also mentioned that it is important for the attorneys to share their briefs they have to convince the other side of their evidence and if something needs to be given confidentially to the mediator that can be done separately Judge Dodds agreed that getting your brief done early helps you to prepare for the conference Regarding what to include in your brief make it information

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=62 (2016-02-13)
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  • CADRe: REPORT FROM THE CADRe OFFICE
    a mediator to the case usually with input from the parties For those cases requesting or ordered to Limited Mediation as of September 1 the mediation will continue to be free of charge to the parties for the first three 3 hours and the court will continue to pay the mediator the 150 00 fee for this time period Thereafter the mediator will give the parties the option of continuing the mediation beyond that point If the parties wish to continue with their mediation efforts beyond the initial three hours or if they wish to return for any subsequent Limited Mediation sessions the mediator is now permitted to charge the parties an hourly rate not to exceed 125 00 per hour This change does not affect cases going to CADRe Mediation cases where the amount in controversy exceeds 50 000 00 and the parties are paying the mediator s market hourly rate Further per CRC 1580 1 b 2 all CADRe panelists agree to serve as an ADR neutral on a pro bono or modest means basis in at least one case per year not to exceed eight hours if requested by the court Please contact me at 805 568

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=61 (2016-02-13)
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  • CADRe: Some Random Thoughts and Ideas About Making Your Mediation Successful
    the case it is not realistic to have the person present clear it with the mediator and the other side before you get to the mediation Be prepared to assure everyone that you are coming to participate in good faith that you as counsel will have the authority to settle the case and that the person who cannot be there will be available by phone Remember not having the decision maker there may hurt the chances at settlement Make sure you have set aside enough time for the mediation Often parties and counsel are anxious to know bottom line demands and offers immediately after opening statements and after the first caucus It is important to let the mediation process play out The process is there to help change people s minds about strongly held beliefs It takes and deserves time Remember you may have to allow things to get messy before you know what needs to be cleaned up Prepare yourself and your client for what to expect at the mediation Your client needs to be conditioned to the fact that at the mediation they are the ultimate decision makers Mediation is probably the only process available to them in which the parties to the dispute can control the outcome of their case With a trial or arbitration some third person or jury will make the decision about the outcome for them The process is confidential and confidentiality makes for candor at least with the mediator Candor at the negotiation table gets cases settled Call the mediator before the mediation and ask how that mediator conducts the mediations Ask about their style of mediation Ask what they expect of you The mediator is allowed to have ex parte communications with counsel and those communications are confidential Put yourself in the shoes of your opposition and anticipate what they may view as the resolution they would be satisfied with What is motivating them What are their strengths What are their weaknesses Before the mediation explore with your client the strengths and weaknesses of the case ranges for settlement and costs of continued litigation Find out what your client really wants and why Better to get them acclimated to these issues before the mediation because you can bet they will be explored at the mediation Be prepared for rough and tumble negotiation Negotiation is a demanding and frustrating dance The psychological importance of negotiation to the parties cannot be underestimated When resolution is reached the parties need to feel they have reached a value that is fair and that they are leaving nothing on the table That happens through the give and take of the negotiation process Don t short circuit the process with the take it or leave it move or get discouraged at the other side s failure to make an early significant concession Each move communicates information beyond the number conveyed Listen carefully to the moves and they will communicate where and how far the other side will go

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=60 (2016-02-13)
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  • CADRe: REPORT FROM THE CADRe OFFICE
    process evaluations CADRe s statistical reports are available on the CADRe website in PDF format at www sbcadre org cadre stats htm Look for updates around the first of every month A recent addition to the statistics section already generating some interest is a sheet listing the agreement rates for individual CADRe mediators for both the Limited Mediation and CADRe Mediation cases You can review this data yourself on the CADRe website at www sbcadre org cadre docs MediatorAgr pdf It s also available in the CADRe offices There s also a new site map up on the CADRe website to try to make navigation as easy as possible for users of the site The CADRe Mediation panel now numbers 63 Recent enrollees on the CADRe panels include Greg Lowe and Ann G Anderson of Santa Barbara Hon Etta Gillivan ret of Camarillo Carolyn Beaver of Port Hueneme Hon Warren Conklin ret of Atascadero Lucille Fontaine of Marina del Rey and Janet R Fields of Calabasas As many of you know I m up in the Santa Maria office on Tuesdays and Wednesdays now so the Santa Barbara office is closed on these days You can reach me in Santa

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=59 (2016-02-13)
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  • CADRe: What Determines Success in Negotiating? How to Improve as a Negotiator and Mediator
    eventually reached about what the parties have decided they will or will not do What we seek from an interest based negotiation is an agreement which does all of the following Is better than our best ALTERNATIVE to a negotiated agreement BATNA Satisfies our INTERESTS Is the best of the many OPTIONS we have identified or generated Is legitimate in terms of being supported by objectively fair CRITERIA Identifies COMMITMENTS that are clear and realistic Strengthens or at least does not harm the RELATIONSHIP Reflects productive and appropriate COMMUNICATION Here is a very elementary example to illustrate the above My brother Richard has fourteen and sixteen year old daughters Merideth and Megan There is one orange left in the kitchen and both want it They race down the stairs and the fourteen year old Merideth grabs it Richard appears and they both turn to him to solve the problem What is the natural response What does he do The ALTERNATIVES For Merideth run out with the orange so she gets it all share it with Megan ask for money and take the time to go to the store and buy another For Megan use force and grab the orange away so she gets it all share it with Merideth ask for money and take the time The INTERESTS Keep dad happy avoid more conflict and potential for violence keep sister happy because they need each other from time to time avoid taking the time to go to the store a showing by dad they are loved and respected get one up on their sister get the orange The CRITERIA Merideth I got it first Megan always gets more than me it s my turn to have dad favor me etc Megan I m the oldest I m on a diet and need it more than Merideth etc The COMMUNICATION Through face to face discussion beginning in a heated fashion The RELATIONSHIP Sisters and father The OPTIONS Divide orange or Can more options be developed Options need to be generated or identified by examining and learning the interests of the parties When it became known that Megan wanted to eat the orange and Merideth wanted to use the peel to make a cake it was discovered each could have all they wanted from the orange The COMMITMENT To divide the orange by Megan getting the orange and Merideth getting the peel The same principles apply in complex disputes with a great deal at stake and a seemingly hopeless end in terms of an amicable resolution Moving up a step in complexity here are two recent examples where the principles were applied successfully A negative turned positive The parties were embroiled in litigation over the leasing of farmland The owner asserted he charged a lower lease rate because it had been understood the lessee would be using the owner s services in handling the farmer s crop when harvested However the farmer retained another firm for these services The owner who lost

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=58 (2016-02-13)
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  • CADRe: Mediation and Sanctions: Road to Distrust
    the Bramalea entities I indicated to plaintiff attorney that it would not occur and it was up to him and his experts to prove their case That in fact is what caused the plaintiff attorney to cancel the mediation since he was not prepared to address this with his own experts However by the time the motion was filed and heard as well as the appeal the factual scenario changed and suddenly I and my clients were made out to be the bad guys This is even with the declarations on file and part of the record by Jonathon Sher the other counsel that appeared on behalf of the insurance carrier With this factual scenario we were still ordered to pay sanctions not because of anything done wrong but rather in the words of Judge Curry because we had been a little too hard on Judge Smith on the recusal issue Unfortunately given the present status of our judiciary it is frightening what the courts can and will do to accomplish their ends A perfect exemplification is the tangent that the Appellate Court took to create an exception to the Confidentiality rules Fortunately the Supreme Court brought the Appellate Court back into the realm of reality At least for the moment Mediation and sanctions are like fire and water They are not compatible Mediation is to be a forum to bring parties together to seek resolution With the possibility that a party may be sanctioned at the whim of the court because counsel didn t like the way opposing counsel acted during the mediation defeats the purpose of mediation Suddenly mediation is nothing more than another litigious meeting in the staircase to trial Actions must be taken to preclude the possibility of sanctions from occurring in the mediation context This should be a safe haven for the parties their attorneys and the participants One might argue that it is like seeking sanctuary in the churches in the Middle Ages Courts and counsel have been presented too many opportunities to seek sanctions for so many other things that one out of every two motions now filed in the court carry with it a sanctions request Mediation involvement should not be part of the sanctions checklist If the courts wish to control the settlement process keep the cases in the Settlement Conference context where there are specific rules to control the settlement process with appropriate financial penalties for failing to comply with the rules There are no rules for mediation Mediation happens based on the ebb and flow of events which make up the dynamics of the mediation process This process is helped or harmed by the mediator This ability to help requires more than minimal qualifications of a mediator and is a real necessity Being a judge a lawyer doctor or Indian chief does not make a mediator A good supervisor in a hard working industrial setting is a far better mediator than a judge retiring from the bench with 20

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=57 (2016-02-13)
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  • CADRe: Santa Barbara Judges Say Yes to CADRe
    the best sense of the word If the service is there use it they say Their goal is to refer all cases to CADRe They believe that any case could benefit from the process of the attorneys sitting down with the CADRe administrator and discussing their case They refer virtually all of their cases to CADRe at the first CMC unless there is serious objection Both believe that judges should encourage the parties to talk and as early as possible CADRe says Judge deBellefeuille is a gift It has changed the way cases are settled enormously She sets her MSC s conferences a month before trial and finds that most cases have been settled by then She usually has only about four MSC s on the calendar per week In stark contrast Judge McLafferty and Judge Anderle are very selective about the cases they refer to CADRe Judge McLafferty describes his own style well He likes to closely administrate his case management following his basic instinct about what a case needs He says that he suggests CADRe at every CMC but finds that a lot of attorneys have their own mediators they want to use But if a case is not ready yet for mediation he will assign another CMC date a month or two hence Both Judge McLafferty and Judge Anderle use an Early MSC conference to assist their case management and assist with settlement They will set an MSC three months or six months after the CMC unlike the other judges who set MSC s two to three weeks before trial Their goal is also to get the parties talking earlier rather than later As one of Judge McLafferty s Settlement Officers I know that he utilizes the talents of many attorney mediators in Santa Barbara to assist him on his loaded MSC s afternoons A case could come back for MSC many times before it is set for trial If a case does not settle at MSC at either three months or six months he will set it for trial or he will send to CADRe and then set it for another MSC three months hence In this way he keeps control of the case He keeps track of the case to put pressure on the attorneys to meet and confer to try to settle the case until there seems to be no hope the case will settle He challenges attorneys at the MSC stage to show him or his settlement officer what is blocking settlement or what is so difficult about this case and encourages attorneys to find a way to get through that barrier Judge McLafferty refers only a quarter of the number of cases that Judges Brown and deBellefeuille refer but as a result of his selectivity a much higher percentage of the cases actually opt into one of the ADR processes offered by CADRe According to recent statistics about 90 of Judge McLafferty s cases actually opt into CADRe once they are referred

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=56 (2016-02-13)
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