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  • CADRe: Preparing For A Personal Injury Mediation From the Plaintiff's Perspective
    that many of them are not discoverable ask your client for permission to allow the defense lawyer to see this information If you get permission write the defense lawyer and suggest that the parties agree that the defense can review all of the records but that plaintiff is not waiving plaintiff s right to object to the discoverability and or admissibility of these records Further suggest that if the defense disagrees about the admissibility of any of these records they will be submitted to the court for an in camera review This procedure will allow the defense to see all of the records while preserving the plaintiff s right to privacy Emphasize the Character of the Plaintiff v the Defendant Let the insurance representative know that your client will make an excellent witness Invite the insurance representative to meet your client If the defendant will be a bad witness this will increase the verdict value of your client s claim Thus to increase settlement value emphasize defendant s deficiencies This is especially effective in discrimination excessive force sexual harassment drunk driving and toxic tort cases The Mediation Brief Unfortunately most plaintiffs lawyers do not take the time to prepare a well reasoned and organized mediation brief I would encourage plaintiff s lawyers to take the time since by preparing the brief you are preparing yourself for the mediation Additionally although mediation briefs can be confidential you should consider sending copies of the brief to the insurance representative and defense lawyer far enough in advance of the mediation that they will have the opportunity to read the brief The brief should be based on all of the medical and special damage information which information needs to be given to the defendant s representatives in advance of the mediation so that they can evaluate your client s medical condition and other special damage claims Additionally if the size of the claim warrants it plaintiff lawyers should consider preparing documentary and or demonstrative evidence in binders using overhead projectors etc Insurance representatives will be impressed with well prepared presentations and such presentations can add value to the claim Pre Mediation Preparation Meet with your client before the mediation Explain the mediation process If the claim s representative has not met your client explain the importance of a good first impression In that regard do what it takes to make your client presentable Encourage your client to leave his her body piercings at home Cover up tattoos with a coat or band aids Explain to your client that he she will be asked to talk about the accident injuries etc at the mediation Have your client rehearse before the mediation If you do there is a chance that you will increase the case s value Finally prepare your client for mediation as if you were preparing him her for a deposition or trial I have mediated at least two injury cases in which the claims representative made the proverbial phone call for more after

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=43 (2016-02-13)
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  • CADRe: Hands Off Mediation Confidentiality!
    avoid the risk and cost of the litigation process So in the end we do not know anything with certainty that we did not know in the beginning The job of the courts however is to settle disputes not track patterns or hold investigations That is the job of the U S Consumer Product Safety Commission CPSC This independent Federal regulatory agency helps keep American families safe by reducing the risk of injury or death from consumer products If the product is a vehicle or vehicle part then the complaint should be directed to the National Highway Traffic Safety Administration NHTSA Alan Schoem Director of the Office of Compliance for CPCS explains There are two different reporting requirements Under 15 U S C 2064 companies must report if they have knowledge that they have a product that could present a substantial product hazard 15 U S C 2084 requires manufacturers to report defects in their products if they have been involved in three court judgments or private settlements in a two year period Schoem points out that companies do not have to give the amount of any settlement They are specifically not asked in order that they may protect the confidentiality of the specific process and settlement Any consumer can call the CPSC Hotline at 800 638 2772 or access their web site at www cpsc gov to report product safety information or to obtain recall information For vehicles child safety seats or vehicle parts NHTSA can be reached via the D O T Auto Safety Hotline at 800 424 9393 or on the web at www nhtsa dot gov A simple call to either of these hotlines can trigger an investigation leading to consumer warnings or product recalls What is needed rather than asking companies and private individuals to report the final settlement of their lawsuits is to enforce the law that is already in place and publicize the availability of the CPSC NHTSA The other thing that would help is to increase the deterrent against hiding the ball and entice manufacturers to report problems or face more stern financial consequences This is what the Defective Product Penalty Act would do This is the name of a new bill being drafted by Senator Dianne Feinstein D CA and Senator Kohl Not only would this Act dramatically increase manufacturers penalties for non reporting but it would also impose criminal penalties on those knowingly releasing dangerous and defective vehicles or vehicle parts The civil penalties for failure to recall a defective vehicle or part are currently 1 000 to 925 000 The proposed legislation would increase the penalty to a minimum of 10 000 per violation with no maximum Criminal penalties can result in sentences from five to 15 years There is one big problem with this bill While this sounds good so far the final provision in the proposed bill could prohibit federal courts from enforcing secrecy agreements In other words no longer would a company and plaintiff agree to keep quiet about a potential threat to public safety This is a good concept but is too vaguely worded While plaintiffs should be allowed and even encouraged to report potential defects or dangers to regulatory agencies and defendant companies must there needs to be an understanding that removing the confidentiality from the mediation process that brings about these settlements would render mediation nearly ineffective in resolving such matters This would only force people back into overcrowded courtrooms costing taxpayers more money If the clarification were made between reporting complaints versus reporting verdicts and settlements then the new bill would be well worth supporting If these other consumer advocates really want to serve the public s safety interests instead of trying to unlock mediation s confidentiality after cases have settled they would focus their energies on organizing interested volunteers and student interns to a promote these hotlines and web sites to heighten consumer education and awareness b help track product liability case filings and c work with the CPSC NHTSA to ensure self reporting and increase sanctions against those who do not comply The Times article almost a full page in size devotes only two paragraphs to Harvard law professor Arthur R Miller s argument that litigants do not give up their right to privacy when they voluntarily or involuntarily enter the courthouse door Miller is quoted as saying There s no doubt you don t want health and safety matters hidden from public view but you don t want to throw out the baby with the bathwater He went on to say You don t want to deter people from using the courts because they fear they would lose their privacy This is the whole point about mediation In a mediation people know that they can say things in an informal setting that may help to resolve the case These same people may be afraid to say these things under oath if they might negatively impact a judge or jury s perception of them or their case In mediation however they can admit things that the other side usually needs to hear For example I mediated a sexual harassment case in which the defendant asked if we could adjourn briefly to confer with his attorney after he heard the plaintiff s sincere and tearful opening statement When we reconvened and after being reassured of the confidentiality of the mediation process and that nothing he said here could be used against him later he bravely said I did it I did just what she said He proceeded to apologize to the couple explaining that he was totally unaware that his actions were having such an effect on their lives He explained that he only meant it all jokingly and never meant to hurt her From that point after months of litigation we were able to fully resolve this case in only 45 minutes Ideally this is how disputes should be resolved Had this defendant admitted his guilt in front of an

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=42 (2016-02-13)
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  • CADRe: Baseball Arbitration I
    see if the dispute parties is ripe for the mediation process Usually always the parties can never be ordered to negotiate in good faith it just doesn t happen Some may be of the belief that parties must have an incentive real or perceived to commence the mediation process This thought emanates from the notion that mediation is voluntary and the parties always remain in control of the outcome But how can the negotiating atmosphere or ADR process be designed or structured to provide that incentive for the parties If one views this topic from what may be at the end or conclusion what do the parties see Litigation arbitration or some other form of binding ADR as an option Even with confidentiality in the unsuccessful mediation process what do the parties look forward to expense time and ultimately litigation However there is nothing firm as to the potential outcome Some ADR system designs may have numerous non binding steps in the process in order to encourage parties to voluntary resolve the matter but sometimes they do not work Even if the parties settle on the eve of trial arbitration there may have been tremendous expense incurred in preparation for that trial arbitration And if it evolves into litigation someone loses with an adverse judgment and the parties lose as to the expense involved including the demise of that usually all important relationship Where there is a special relationship e g friends neighbors customers and suppliers the parties may want to explore an old remedy for this old problem Perhaps viewed from the end the best alternative is knowing that the final resolution is within a range of possibilities or knowing that the ultimate resolution will only be one possibility or another i e an either or resolution This may assist in getting the parties to the dance but will they dance In more cases than not they do participate Specifically a modified form of baseball arbitration whereby the parties elect early on to utilize this form of ADR to resolve their dispute if they come to an impasse Briefly this usually involves one arbitrator being empowered to determine the resolution of the dispute but within a set of parameters that the parties have stipulated in their ADR agreement clause This has been in use for several years in the sport of baseball as a methodology to arrive at owner player salaries and resulting in fewer and fewer arbitrations Depending upon the exact form of baseball arbitration designed selected the parties will know what the end is Briefly one form of baseball arbitration is where the arbitrator is required to make an award by selecting only the final offer from either party no splitting the baby Another hybrid usually referred to as nighttime baseball is where the arbitrator will not know how the parties have finally decided to structure the resolution of the dispute but the arbitrator s post hearing decision that is closest to the undisclosed party s last

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=41 (2016-02-13)
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  • CADRe: MEDIATION: Maintaining Integrity in the Process
    the impression they are negotiating in good faith but actually using the opportunity to gather information that they may not have been able to obtain through discovery 2 The Set Up In addition to obtaining information that the other side would not have given up except for their desire to reach agreement the offending party will play along until they believe they have gotten the other side to concede as much as possible in hopes of obtaining a settlement They will then end the mediation Later they will bring up the last offer made by the other side to begin another negotiation usually at a mandatory settlement conference This criticism is not directed at all parties who continue negotiations after a mediation fails We know that settlements are not reached at every mediation The reason the tactic described above is untoward is that the offending party is hiding the fact they have not intended to act in good faith They have unfairly exploited the other side by feigning a true interest in early resolution of the dispute This tactic is particularly offensive in that the mediator becomes an unwitting tool in this fraud if not aware of what is going on Mediators should be watchful of this situation and guard against it as it will erode the integrity of the mediation process similar to the way in which Judicial Arbitration has been viewed in some respects 3 Without Full Authority Another similar tactic is used by some who also come to the mediation absent the intent to settle Their purpose is to drive the other side to significant compromise and then abruptly end the mediation by announcing they have reached the extent of the authority given to them to settle Despite that may have become apparent during the negotiation that a greater compromise on their part is appropriate they will offer no more compromise asserting their hands are tied This is similar to the circumstance described in the preceding section The fact is the party did not arrive with the intention to settle but to grind the other side to reach the greatest compromise possible at that point only to use this later on Again it s not the hard negotiation that is offensive it is the fraudulent nature of the activity and the use of the mediation in the scheme that is distasteful 4 Increasing the Cost to the Other Side There are cases in which the tactic of one side is to drive the other out of the suit by escalating the cost of the litigation This is one in which no stone is left unturned when it comes to discovery motions and other processes that increase the cost of the litigation A tactic to be aware of with respect to mediation is where this same party agrees to mediation but has no intention of attending with a desire to settle Their intent is to incorporate one more process into the action to drive up the cost of

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=40 (2016-02-13)
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  • CADRe: Should Mediators Have Subject Matter Expertise in CADRe Mediations
    they should also be useful and informative for all For example Standard IV addresses Competence wherein A Mediator Shall Mediate Only When the Mediator Has the Necessary Qualifications to Satisfy the Reasonable Expectations of the Parties Re read that Standard What does it mean to you What does it mean to customers of the mediation process The Comments under that Standard touch on types of mediator information that should be made available to the parties and includes relevant training education and experience and when appointed by a court or institution the appointing agency shall make reasonable efforts to ensure that each mediator is qualified for the particular mediation While other Standards address distinct and equally important topics including impartiality in conducting mediations as well as conflict of interest obligations the focus herein is on qualifications Consistent with the premise that a settlement belongs to the parties self determination the Model Standards also establish that the parties have the freedom to select the mediator the principle of a customer user party driven process has been embedded in those Standards However the parties must be satisfied as to his or her qualifications What are the parties expectation in this regard What do the parties expect in training education and experience A mediator must be able to satisfy the parties expectations that she or he has the competency to mediate effectively An effective mediation is emphasized and that is part of the important key to finding the answer to the question the parties expect mediators to have the requisite level of competency to mediate effectively i e to facilitate the resolution of the dispute Accordingly a mediator must clearly possess the facilitation skills necessary to satisfy the parties i e customer expectations toward the goal of achieving a voluntary settlement And this may suggest expertise in the subject matter in that dispute For example if a mediator is to be called upon to do any or all of the following situations in an effective manner should subject matter expertise be at the forefront Provide that remedial dose of reality check for the parties by going to the strengths weaknesses Assistance in identifying and understanding each of parties underlying interests and views Being an effective communicator during the course of the mediation Explore new creative and innovative alternatives through options or opportunities as settlement possibilities Structured mediations Technical proprietary information is critical to the process Trade professional and or legal aspects are important Long term historically based issues Multitude of substantive variables in reaching a settlement Multiparty complex mediations Strategic and global disputes Finally recent data from a regional office of a major mediation provider reflects that ninety five percent of the mediations filed resulted in a request for a list of mediators with subject matter expertise as a prerequisite This is what the customer or parties want Consequently the mediator biographical information data on file with mediation providers should be continuously reviewed by mediators in order it reflects the current subject matter experience

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=39 (2016-02-13)
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  • CADRe: CADRe Shows Measurable Results!
    of 36 and 28 respectively By comparison the Santa Barbara CADRe program is showing itself to be a huge success Most of you know by now that CADRe offers two different mediation programs Limited Mediation and CADRe Mediation The Limited program is for cases where the amount in controversy is 50 000 and under The court offers it free of charge to litigants and the CADRe office assigns the mediator to each case The CADRe Mediation program is for cases over 50 000 and the attorneys have the opportunity to investigate and select their mediator from our market rate CADRe Mediation Panel The breakdown between these programs is very interesting The Limited Mediation program looks like this 77 cases have opted in or were judicially ordered in rare cases 62 cases have been mediated to date 37 cases resolved yielding a 60 resolution rate The CADRe Mediation program looks like this 81 cases have opted in by stipulation of the parties 56 cases have been mediated to date 39 cases resolved yielding a 70 resolution rate One strong hypothesis for the higher resolution rate among the larger cases is that when the parties agree to pay for a mediator s time those parties tend to take the process more seriously and prepare better Some say that when a process costs them nothing some participants won t feel as invested in it and may not make preparing for it a priority Other variables between the programs include the ability to choose a familiar and trusted mediator in the CADRe program and the fact that while many of the CADRe mediators make themselves available for Limited Mediations the fact is that the qualifications to become a CADRe mediator are higher than those for the Limited Mediation panel In several cases that were under 50 000 the parties still opted to move up into the CADRe program and select their own mediator and agreed to pay that mediator s fees in order to have more control over the process While these statistics tell us much about one measurable index of the CADRe program there is much more to the success of such a program than simply asking Did it resolve the case The Court believes as do many mediators that the satisfaction level of those who participate in the process is as important as the end result For example one can participate in a mediation and reach agreement but if that agreement was made reluctantly because that participant felt there was no other way out or was pressured or coerced into agreeing to it that mediation may have done more harm than good On the other hand there have been many cases where the mediator has done such a great job that the attorneys for both sides have called the CADRe office to report on what a fantastic mediator they had even though the case did not resolve It is for this reason that the CADRe program asks all participants at the table

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=38 (2016-02-13)
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  • CADRe: CADRe Mediation, a Choice Not an Echo
    However no mediation will be effective unless the parties are prepared to mediate A RAND study of settlement efforts in Federal District Courts concluded that settlement efforts were not effective in these courts because the parties were simply not prepared to settle because they had not done the discovery needed to evaluate their cases PRE MEDIATION DISCOVERY More often than not you need to complete enough discovery so that you can fully evaluate your cases One way for you to do this is to stipulate with the other lawyer s about what discovery will be completed before mediation Additionally you and the other lawyer s can agree to informally give each other information in preparation for mediation Finally Code of Civil Procedure 2019 c allows the court to order staged discovery in certain circumstances PRE MEDIATION CLIENT PREPARATION Always meet with your clients before the mediation Find out what the client most wants out of the mediation Find out what the client is willing to give in return Explain the claim s strengths and weaknesses to your client Explain the risks of trial the potential delay in getting a case to trial and the uncertainties of the process Explain the costs to try the case and the possibility that the client may pay some or all of the other party s costs if the client loses at trial BRIEFS Some mediators ask for mediation briefs some do not I feel that briefs are helpful in filling in the factual blanks and in explaining the law Additionally by taking the time to prepare informative briefs you will be better able to evaluate your client s claims THE MEDIATION 1 The Joint Session This is not the forum for aggressive advocacy Start out by being cooperative You can always retaliate later if the other side is not cooperating You should also make sure that the decision maker participates especially if he she is not a party to the lawsuit The decision maker may well be a spouse religious advisor or friend He she should be at the mediation so that settlement decisions can be made It is vital that the parties actively participate in the mediation The parties should be allowed to tell their stories during the joint session If the parties feel that they are getting the opportunity to have their day in court they are much more likely to want to settle Everybody gets the chance to talk during the joint session but listen to what others say and do not interrupt As lawyers we are conditioned to be advocates We tend to interrupt when someone says something with which we disagree In mediation you need to bite your tongue until it is your turn to speak You also need to let your client know that listening is as important if not more important than talking since it may give you and your client clues which will help you settle the case 2 Caucus This forum gives the parties the

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=37 (2016-02-13)
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  • CADRe: CADRe and the Evolution of the Administration of Justice
    in a variety of ways which best meet their needs This is in keeping with the evolution of thought about ADR no longer are mediation arbitration or neutral evaluation seen simply as alternatives to trial Instead there are several dispute resolution processes available to the parties any one or more of which may be appropriate in meeting the disputants needs Those processes include mediation arbitration and neutral evaluation among others as adjuncts to litigation and trial not as lesser alternatives Hence the term ADR has come to mean Appropriate Dispute Resolution Thus the CADRe program illustrates the ability of the courts to enhance the quality of justice by providing litigants with education and resources concerning the power they have to control the timing expense and outcome of lawsuits The development of the CADRe program coincides with a change in the way lawyers serve their clients More attorneys now accept a range of Appropriate Dispute Resolution processes including mediation as a means of meeting the needs of their clients in a timely and cost effective manner The bench and bar have therefore fulfilled their historic mission of improving access to and the quality of justice by adopting the CADRe program This does not mean however that the CADRe program will make litigation and trials a thing of the past What it does mean is that litigation and trial are reserved for those admittedly rare cases in which other means of appropriately resolving the dispute meet the parties needs less effectively The statistics have always suggested that over 90 of all civil actions filed are resolved prior to trial There is no reason those cases should be resolved after unnecessary time expense and aggravation have been incurred by the parties The CADRe program assists the parties in taking control of that 90

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=36 (2016-02-13)
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