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  • CADRe: From Conflict to Resolution: When to Negotiate the Litigated Case
    have applications of the mediation process all over the map The Next Generation of Dispute Resolution Following the lead of the family law arena civil litigators began to see the value of bringing in a neutral third party to assist or facilitate in the negotiation process While it took about 15 20 years to institutionalize the mediation system into our civil justice system it appears that it is here to stay as a viable option for litigators who want to settle their cases without going to court Following this second generation of dispute resolution options available to litigators we move forward until about ten years ago when another generation of options became available to settle cases out of court This third generation resulted from people wanting to tailor their mediation or arbitration process to match the particular dispute Now we have at least 25 other hybrid processes available ranging from baseball arbitration to mini maxi arbitration with various things in between including summary jury trials med arb and much more The current Continuum of Conflict takes on a dimension that is far broader than we saw 40 50 years ago The world has changed We are now beginning to reframe our choices so that the strategies we select to intervene in a dispute give us the best possible chance of achieving resolution at the least possible emotional and financial cost to our clients Negotiation is at the heart of the many choices we have to resolve cases Whether we use negotiation to actually settle a case or parlay a matter into another procedure which is less intrusive than court litigators must fundamentally rely on the negotiation process for everything they do Negotiation Defined Negotiation is generally defined as a communication process we use to put deals together or resolve conflict In negotiation litigators have control over both the outcome and the process of a dispute Procedurally the parties in negotiation are responsible for designing the process Similarly by definition the parties have control over the outcome This is in sharp contrast to arbitration or trial where power is clearly delegated In traditional litigated cases a litigator relinquishes the power over the outcome because decision making process is given to someone else All procedural decisions are taken from parties Like a cafeteria litigated cases require you put down a tray and select things from a menu such as which discovery processes or motions you might utilize to get an advantage over the other side Since it is a communication process like most things which require communication sometimes problems occur that end up causing the dispute to reach an impasse This is where civil litigators and even the court system have chosen to introduce Mediation as a preferred option for resolving disputes The reason that mediation has worked so well for litigators is that it is basically a facilitated negotiation While we have evolved beyond the years when family law practitioners preferred non lawyers to mediate their cases the current crop of litigators can choose from well respected retired judges and established trial lawyers to serve as mediators This gives the litigators a sense of comfort because the neutral has more than likely been in their shoes before and can speak the same language The neutral knows that the goal of the facilitated negotiation is to get the case closed which is something the litigator was unable to accomplish Top Ten Factors For Getting The Other Side To The Table The key to a successful facilitated negotiation is getting the other side to agree to mediate in the first place In order to set yourself up for success there are several factors to consider when convening a mediation 1 Never request mediation within two weeks after you ve lost any motion no matter how insignificant 2 The most profitable mediation on a great case generally occurs before expert discovery although it can happen closer to the trial date 3 The most profitable mediation on a so so case occurs close to the trial date assuming your experts have not betrayed you 4 The most profitable mediation on a bad case occurs before you file the lawsuit or as soon thereafter as you can manage with a straight face 5 Ask for mediation in a letter which accompanies a motion to compel discovery Offer to postpone the motion if the other party agrees to mediation 6 Where you have a belief in the merits of your case send out a letter demanding mediation and specify your good faith estimate of the value of the case Indicate that you will only agree to mediation if the other party fully understands and acknowledges your approximated value If you then show up at the mediation and the other party comes in substantially below that approximated value leave promptly 7 Allow the judge to propose mediation at the initial status conference 8 Mediation often works best for a defendant after a summary judgment motion has been filed but before the hearing and before plaintiff s opposition is due Mediations often work best for plaintiffs just after the summary judgment motion has been denied Schedule accordingly 9 Consider a cost basis analysis This means that for every month you have the case open the time you have committed to the case increases yet there is no guarantee that the value of the case goes up 10 Many provider organizations will take on the responsibility of contacting the other side about the prospect of mediating This can be effective since these organizations usually have people trained to sell the process in a way that doesn t make you look vulnerable Now That You re Coming To The Table What s Next Negotiating a litigated case depends upon the style of the mediator and the approach of the advocate Before beginning the mediation session ask the mediator to define his her style Some mediators choose an approach much like a messenger where they exchange numbers back and forth and actively

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=51 (2016-02-13)
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  • CADRe: The "Starbucks" of Alternative Dispute Resolution
    example and then mediate damages These processes still allow for the creative outcomes in mediation but with guaranteed closure The next batch are all hybrids of arbitration Judicial Arbitration a non binding process is administered by the court however 95 of the decisions are de novo d by one side Binding Arbitration is the most similar to trial but without a jury and typically presented in a less formal setting Hi Lo Arbitration allows the parties to cap the lowest and the highest the payment will be if the arbitrator s decision is outside either parameter Baseball Arbitration is best utilized when there are extreme differences and the parties don t want the outcome compromised or the baby split Both parties present the arbitrator with their pre chosen figure and the arbitrator has to pick between the two figures This forces the parties to value their cases very realistically Night Baseball Arbitration is a similar approach except that the arbitrator is kept in the dark about the figures as he or she renders their award Whichever pre chosen figure is closer to the award wins Again this forces parties to present more likely outcomes but without feeling that they are biasing the arbitrator by presenting their figures before the hearing Tri Panel Arbitration 3 Arbitrators can be more costly but gives the parties a system of checks and balances and assures them that the outcome is not just in one person s control Some parties go to the extent of hiring a mock jury and a private judge to hear their case so that they can benefit from the feedback of these sources This can help lawyers focus on their trial strategy realize where they might need to do more homework what witnesses were and were not effective and obtain a range of case value Others go full force to set up a Private Mini Trial so that they can choose their judge and the dates in which they will present their case The advantages are similar to that of binding arbitration knowing the style of the judge having guaranteed dates having the undivided attention of the judge avoiding competition with the crowded court docket and possibly having the case heard years earlier than in the traditional court system So now that we have a better flavor of the ADR process choices one still has the immense responsibility of choosing the right neutral for that process There are many difficulties associated with the selection process of a third party neutral The most common are lack of familiarity relying solely on bench reputation lack of objective referrals and being influenced by isolated experiences or by different process experiences i e judging what the mediator would be like based on their style in arbitration Parties have many neutrals to select from in this competitive industry and should take advantage of that luxury by educating themselves before agreeing to a particular person Many of the above challenges can be overcome by several underutilized

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=50 (2016-02-13)
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  • CADRe: REPORT FROM THE CADRe OFFICEApril 25, 2001
    on January 1 2001 and will apply to cases filed after June 30 2001 Specifically the plaintiff should receive a packet from the court containing information about available ADR options and an ADR stipulation form The plaintiff should serve this material on all other parties I invite you to review these changes on the CADRe website at http www sbcadre org rules califrules1580 htm I m working on a revision to the CADRe Program Information handout that will conform with the new requirements We have also been working on a revision of Local Rule 1102 to make it conform with the timing guidelines in CRC 212 and to make the language of the rule better reflect the actual referral process into the program I expect this revision to take effect on July 1 The Case Management Conference Memo form is newly revised and in circulation now We have changed the forms section of the CADRe website so that all forms used in the program can now be edited online using either the Adobe Acrobat Reader 4 0 program that can be downloaded for free if it isn t already installed on your computer OR the complete Adobe Acrobat 4 0 application software All the forms and instructions are available on the CADRe website at http www sbcadre org forms ct forms htm Early reports from users are positive but please let me know ASAP if you have any problems using these new versions of the forms I m up in the Santa Maria office on Tuesdays and Wednesdays now so the Santa Barbara office is closed on these days I can be reached in Santa Maria at 346 7404 but you can always leave a message for me at the Santa Barbara number 568 3124 I check the voicemail system

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=49 (2016-02-13)
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  • CADRe: Mediation Advocacy in Elder Abuse Cases
    case to be sure your opponent is ready and to agree on who will personally attend the mediation The Timing of Mediation Mediation has become so commonplace that some attorneys give little thought to the timing of the mediation If another lawyer or the court suggests it many lawyers just get a date from an agency and go forward A more deliberate approach is recommended At what point in the development of the case should the parties engage in a mediated negotiation session The answer is only when the essential preparation has been done You must be well prepared to impress your opponent and your client with your mastery of the case and your ability to persuasively present it Few plaintiffs will significantly compromise on the death or suffering of a loved one and no defendant will pay large sums of money without persuasive reasons to do so Attorneys will not have the client s trust and client control needed to guide a negotiation if the opposition is better prepared and makes a stronger presentation at mediation Use the mediator to help the parties agree on appropriate timing for the negotiating session A mediation that is commenced prematurely will usually fail at the initial session resulting in client aggravation and reducing the chances for settlement Preparation Preparation Preparation As with trial there is no substitute Some lawyers waltz into mediation barely knowing the facts stumbling over party names and having engaged in no risk analysis with their clients before the hearing It is hard for a mediator to be supportive of an attorney s performance before the client when this occurs Good preparation should include the following 1 All essential evidence must be known You do not need to take every deposition before mediating but should be aware of the key evidence The essential facts should be known key documents obtained from the facility and investigating agency and important witness statements or depositions taken before mediating an Elder Abuse case Most attorneys will informally share evidence if there is an understanding that all sides are working toward mediation Expert analysis should be obtained before the mediation The stakes are high and the choice to spend perhaps 10 000 to 25 000 on an early expert work up will more than pay for itself where medical causation or standard of care issues are hotly disputed 2 Prepare your client to participate This means explaining the mediation process and preparing the client to hear unpleasant things from the opposition Let the client know that it is best to hear these things now in a more cooperative and informal setting where they can be evaluated and put in proper context Also explain that the other lawyer has a duty even in mediation to be a zealous advocate and may feel duty bound to argue unpleasant points which may have little bearing on the negotiation Prepare your plaintiff client to speak at the mediation if you have a client that can do so effectively Letting the plaintiff family speak in front of management doctors and even insurance representatives can be a tremendous catharsis without which some plaintiffs do not feel that they have been heard It also allows defense decision makers to evaluate first hand the jury appeal of the plaintiffs Constructive and sincere comments from the defense can diffuse tension and help plaintiffs understand the full picture Prepare the defense client to participate in something more than zealous advocacy Even if liability is hotly contested plaintiffs grief and unspoken guilt are usually genuine A little conciliation from the defense may help plaintiffs to make a tough settlement decision If there are to be apologies or expressions of sympathy they must be genuine and should not immediately precede or follow strident advocacy by counsel I find that they are best expressed informally at breaks or before a session begins However beware of confidentiality issues see below 3 Analyze the case for your client before mediation while encouraging the client to have an open mind to learn new information and to hear the perspective of other knowledgeable people If a client is hearing about a significant risk for the first time in mediation it may arouse anger or be hard to factor that into the client s settlement expectations With insurance carrier involvement the defense has typically done the analysis before mediation What the defense decision makers may not have assessed are the sincerity and credibility of plaintiffs This factor is often more important than any other in evaluating jury verdict potential Encourage your insurance clients to keep an open mind on critical issues and to use the neutral to gain a disinterested perspective on how the jury may perceive the plaintiffs Finally remind your insurance clients that new information is learned in virtually every mediation even after extensive discovery 4 Be prepared to handle monetary issues This will often involve having a structured settlement broker present or available by telephone For the defense a realistic assessment and committee process should precede mediation with the understanding that the defense must be flexible up or down based on what is learned at mediation 5 Exchange settlement proposals well in advance of the negotiation session I strongly recommend that parties exchange realistic monetary proposals before mediation If neither side has a clue about the general range under discussion initial attempts to negotiate at mediation will go nowhere Plaintiff expectations must be managed Corporate defendants and carriers can not generate six and seven figure authority without lead time If a multi step process is used proposals may be exchanged after the initial session s but well in advance of the negotiation session If the pre mediation proposals are dramatically apart even allowing for posturing you may wish to bring the mediator into the discussion to narrow the gap or assess what further sharing of information is needed to get close enough for a fruitful negotiation 6 Bring the real decision makers This point is mentioned under preparation because

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=48 (2016-02-13)
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  • CADRe: Preparing For A Personal Injury Mediation from the Defendant’s Perspective
    the plaintiff will see that you are prepared to try the case if it is not settled Meet with the claims rep before the mediation to discuss the case Find out if the claims rep has enough settlement authority as per your evaluation of the case If not encourage the claims rep to obtain more authority Provide the mediator with a brief that candidly discusses both plaintiff and defendant s strengths and weaknesses Include the IME report and copies of plaintiff s medical records The Mediation Sometimes Having To Say I m Sorry The mediation may be your claim rep s first opportunity to meet and evaluate the plaintiff in person After the plaintiff has concluded his her opening remarks take the opportunity or have your claims rep take the opportunity to I Say I m sorry to the plaintiff These words do not weaken your case and may very well result in the plaintiff being more receptive to settling the claim For example Mr Plaintiff on behalf of my client and XYZ insurance company I want to tell you how sorry we are that the accident happened pregnant pause however After the however you can then explain that you believe that the trier of fact will learn that 1 the force of the impact if this is an auto case was such that they may be hard pressed to believe that the collision caused any or all of plaintiff s injuries 2 the medical treatment was not totally reasonable and necessary 3 the IME doctor concluded that plaintiff was not seriously injured 4 the lost income claim is not supported by the documentary evidence 5 etc II Explain to the plaintiff that if the case does not settle you will be filing a summary judgment motion and then explain why you believe that the judge will grant the summary judgment motion III Explain to the plaintiff that if the case does not settle you will be serving a CCP 998 offer before trial and if the plaintiff does not accept the offer and if the verdict is less than the offer your client will seek to recover costs of suit Describe the type and estimated amount of these costs This may be the first time a plaintiff learns that he she may not only lose at trial but also be out of pocket thousands of dollars IV Have your claims rep talk about his her experience in the venue where the case is filed Plaintiff lawyers new millennium clarion call is still to try their good cases and settle the others However the new definition of a good case is a case that has favorable liability serious injuries and a favorable venue Let the plaintiff know if the case s venue is not plaintiff friendly and or V Keep egos out of the mediation process If you do some or all of the above during the joint session you have provided the mediator with reality check ammunition when the

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=47 (2016-02-13)
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  • CADRe: Santa Barbara CADRe Performance Statistics
    program Nine of these cases selected Early Neutral Evaluation with 5 of these cases ending in resolution One case opted for Binding Arbitration though the case eventually settled prior to any further ADR proceedings One case elected to use a Special Master though the parties subsequently took the case to mediation which ended in agreement 118 cases opted for Limited Mediation available where the amount in controversy does not exceed 50 000 00 and CADRe assigns a mediator to the case at no cost to the parties As of December 1 a total of 82 of these mediations had been completed with 45 of these ending in agreement for a respectable 54 87 agreement rate Keep in mind that this figure doesn t include an additional 18 cases that settled prior to the scheduled mediation Of the 37 mediations that ended in non agreement 11 of the cases settled within 60 days after the mediation 104 cases opted for CADRe Mediation where the amount in controversy exceeds 50 000 00 the parties select their mediator and pay the mediator s market rate As of December 1 a total of 84 of these mediations have been completed with 58 of these ending in agreement for an impressive 69 04 agreement rate An additional 5 cases settled prior to the scheduled mediation Of the 26 mediations that ended in non agreement 4 of the cases settled within 60 days after the mediation How is the program performing in North County While the overall number of cases coming into the program is lower both the opt in and the resolution rates are a little higher As of December 1 2000 a total of 164 cases have been referred to CADRe from the North County Judges with 120 of these cases opting into the

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=46 (2016-02-13)
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  • CADRe: Creating Certainty for Your Client: Using Mediation in Estate Planning
    the road The battle between family members creates uncertainty increased cost loss of control and increased acrimony The trust and estate attorney to avoid these pitfalls can use mediation as a tool Traditionally a client meets in private with their attorney It is only when the client becomes incapacitated or dies that the rest of the family learns of the plan that has been created Because the plan was created in secret the attorney is often provided incomplete or erroneous information This leads to plans based on flawed assumptions For example husband and wife come in together to see you They have a family business and several adult children One of the spouses won t bring up issues that they know are upsetting to the other such as the capacities and wishes of the children As a result the attorney may draft a plan that does not take into account that the children s wants or abilities to care for the business The children may have different views about both parents and each other based upon long standing emotions None of this surfaces until it is too late to do anything about it The testator has made major decisions while isolated from the rest of the family The traditional planning process lends itself to the use of the plan as a way to punish or reward past conduct whether real or imagined The nature of the process engenders mistrust between the beneficiaries and fear that someone else has unfairly influenced the testator Not surprisingly traditional methods often lead to bitter and protracted feuds among the beneficiaries If we recommend the involvement of the entire family in these issues we are creating the opportunity to carry out our clients wishes in a manner that minimizes the likelihood of litigation and increased acrimony while maximizing the estate planning values The use of mediation also provides the possibility of benefits not previously available in the traditional process The benefits of using a family conferencing method facilitated by a mediator are not the same in every case We have listed some of the benefits in the box to the right BENEFITS OF USING MEDIATION IN ESTATE PLANNING creating peace of mind in the testator in knowing their family is getting along improving family relations while the testator is still alive increased financial well being opportunity to promote maturity and responsibility between and by the beneficiaries creating a plan that is both realistic and responsible creating opportunities for partnership affording beneficiaries the opportunity to honor the testator s memory increased likelihood in certainty decrease in administrative costs if no litigation Let s look at a hypothetical case which you might get as an estate planning attorney Father your client is quite frail and elderly He has three children adults all living out of town He is married to his second wife not the mother of his children There has always been distrust between the siblings and the stepmother especially between the elder daughter and the

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=45 (2016-02-13)
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  • CADRe: Outside the Box: Alternative Formats in Employment Mediation
    had been employed by the bank for 18 years The bank claimed her performance was suffering and that she left because she did not appreciate her new manager s suggestions to improve her work The attorneys agreed the case should be mediated and selected a mediator The mediator arranged individual premediation calls with both counsel The mediator learned from the plaintiff s counsel that plaintiff would need an opportunity during the mediation to tell the defendant representative how inappropriate the bank s conduct had been The plaintiff s counsel stated that until his client had a chance to tell her story he did not think she would be ready to talk about resolution The mediator learned from the defendant s counsel that the defendant felt the plaintiff was a complainer talked incessantly and probably should have been counseled years before Defense counsel planned to bring to the mediation the person who managed plaintiff s new supervisor Counsel disclosed that this individual had put up with plaintiff for years and would likely not have the patience to sit through an opening session where plaintiff was given unlimited license to vent It was clear that a traditional mediation model would not be the most efficient method of resolving this case The plaintiff needed an opportunity to unload some of her frustrations but the mediator sensed that the defendant would become more settlement resistant if the plaintiff were permitted to state her grievances directly to him The mediator held a conference call with both attorneys and suggested that the first sessions with the plaintiff and defendant occur before the formal mediation session The mediator arranged to meet plaintiff and her counsel office for three hours in the morning and to meet with defendant for an hour in the afternoon The mediation would occur the following day Both sides agreed to the format and the allocation of time The defendant realized the plaintiff needed time to talk and was pleased he was not forced to sit in a room and wait while this process unfolded Both sessions went well The mediator worked with the plaintiff to sketch out the major points she wanted to share directly with the defendant helping her practice a statement to be made during the joint session The plaintiff agreed to limit her remarks to five minutes The mediator sought and obtained permission to share the substance of plaintiff s intended remarks with the defendant During the session with the defendant the mediator was able to prepare the defendant for the short statement the plaintiff would make during the joint session and helped the defendant formulate a response that would communicate to the plaintiff that he heard her not that he agreed with her and that he was interested in resolving the dispute On the day of the real mediation the joint session went exactly as planned The mediator met with plaintiff and her counsel in caucus after the joint session and found the plaintiff quite ready to begin discussing

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=44 (2016-02-13)
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