Rande

Med-Arb – A Controversial Dispute Resolution Option

“Alternative dispute resolution” traditionally has been viewed as any of a variety of dispute resolution methods that are alternative to the default of filing a lawsuit in court. Most people immediately think of arbitration as the main “alternative.” Mediation is now more commonly considered as well, at least in the United States.

However, there are many “alternatives,” including a hybrid concept that is getting more attention these days, known as “Med-Arb.” In this process, the parties agree to begin with mediation, but if they reach an impasse, will proceed to arbitration conducted by the same neutral who acted as the mediator. On the surface, this seems like a good idea, at least from the parties’ viewpoint. But when you start to think about it, in California at least, the process can be fraught with risk, especially for the mediator/arbitrator hired to do the job.

“Binding mediation” is another term for “mediation-arbitration.” For example, the parties can agree that if they reach impasse, then the mediator – who then effectively becomes arbitrator – can decide on a final settlement amount within an agreed-upon range. (There are lots of options here.) If a “binding mediation” provision of an agreement is not sufficiently clear and detailed, then it will not be enforced. Lindsay v. Lewandowski (2006) 139 Cal. App. 4th 1618, 1620-1625.

However, if the agreement demonstrates that the parties agreed to a “binding mediation” process that is clearly defined, and a constitutionally and statutorily permissible method of resolving their dispute without trial, it will be enforced. Bowers v. Raymond J. Lucia Cos., Inc. (2012) 206 Cal. App. 4th 724, 728-737. The mediation agreement and subsequent mediation award will be enforced as a settlement under Code of Civil Procedure Section 664.6, not as an arbitration award.

Normally, we mediators encourage as much creativity as possible in working with parties to find solutions through their own self-determination. The more they “own” the solution to the dispute, the more durable and sustainable it will be.

At its philosophical heart, the concept of “med-arb” is inherently contradictory, nullifying the voluntary nature of mediation. Essentially, the parties are saying, “We’ll do our best, but if we can’t agree, then we’ll let you, the mediator, decide how we should settle our dispute.” It may seem like a rush to give up.

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HOA Action to Enforce Mediated Settlement Agreement

It’s always about the attorneys’ fees, and who pays for them when legal disputes arise, isn’t it? Many statutory schemes are designed to treat negotiation and mediation as the primary mechanism to resolve disputes. The approach keeps costs down, and it also achieves quick resolution in many kinds of disputes, including those involving condominiums and other common interest developments. In California, these entities and their members depend on the dispute resolution provisions of the Davis-Stirling Common Interest Development Act, Civil Code §§ 5850-5985 (“Act”).

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Mediation when Caring for Aging Family Members

Last week I attended a fascinating seminar for adult children of aging parents given by my colleague Carlos Arcos, Esq., an elder care planning attorney. The need for this kind of advance planning became powerfully obvious in light of the countless legal issues, public benefits issues, insurance issues, real estate questions, and financial risks associated with natural decline and death in today’s world. Planning for your own care or care for a family member or friend when your health declines or you become physically or mentally incompetent to care for yourself can make the difference between preserving assets and losing everything.

Families are not always harmonious. This is one area in which the grass always seems greener in someone else’s family. Most families have some degree of discord, and money often brings out the worst in people. Family members often harbor lifetimes of resentment that tends to surface when aging parents need expensive or time-consuming care, when they may disagree about their competence, or when they die and leave assets in proportions their heirs consider to be unfair.

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Looking for a Great Mediator?

There are many factors that go into the selection of a mediator. In addition to objective qualifications such as track record and experience, there are personal qualities that can make a crucial difference between an effective mediation and a disappointing one.

I’ve spent a lot of time with other mediators lately. There have been conferences, social events, study groups, the ICC International Commercial Mediation Competition in Paris, partner presentations, and so forth. I’ve discovered a lot about the qualities of great mediators.

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How to Prepare for Mediation

You’ve selected your mediator, and the mediation session is scheduled for next month. Preparing for mediation as thoroughly as possible is the key to achieving the best possible outcome. Where to begin?

1. You need a mediation plan. The plan will help you organize your preparation and deepen your understanding of the case. Your plan should consist of:
a. Determining your client’s and your own goals and objectives.
b. Identifying your client’s and your own true interests underlying the goals and objectives.
c. Developing a strategy for achieving those goals and objectives. Distinguish between needs and wants.
d. Considering various approaches at the mediation, both procedurally and substantively.
e. Realistically determining your alternatives if you cannot reach an agreement through mediation.
f. Considering the other party’s and counsel’s likely true interests as well as the other party’s likely      alternatives if no agreement is reached.

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Stipulated Mediation Stay Does Not Toll Five Year Mandatory Dismissal Period

California litigators know that cases must be brought to trial within five years or face mandatory dismissal. (C.C.P. Section 583.310). Time periods when “prosecution or trial of the action was stayed” or when bringing the action to trial was “impossible, impracticable, or futile” are excluded from the five-year calculation under C.C.P. Section 583.340.

In another decision throwing parties’ efforts to mediate under the wheels of the five-year rule, the California Supreme Court decided that a trial court order striking a trial date and staying the action following the plaintiff’s agreement to the defendants’ request to engage in mediation and complete outstanding discovery did not operate to toll the running of the five-year period. According to the majority, the “mediation stay” did not amount to a sufficiently complete stay or render the prosecution of the case impossible, impracticable, or futile to effect tolling. Gaines v. Fidelity National Title Insurance Company, et al., S215990 (filed 2/25/16)

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Power Play in Mediation and Negotiation

The ICC International Commercial Mediation Competition in Paris showcased many different approaches to business mediation and negotiation even within the predetermined format and criteria for performance. Even when cultural differences were insignificant, the mediations often turned in unpredictable directions depending on different personalities and negotiation techniques. This was an excellent demonstration of the many permutations of power play.

The ICC Competition Final at the Maison du Barreau was the perfect example of power play at work. The auditorium was huge, the stage bathed in spotlight. Hundreds of spectators anxiously awaited the final match between the University of New South Wales (Australia) and the University of Auckland (New Zealand). There were no significant cultural differences between the teams.

All of the spectators had access to the details of the conflict – a dispute between a celebrity baker and party planner-to-the-stars over a wedding cake disaster that occurred when the industry-changing icing jointly developed by the two slid off of the cake at the party planner’s daughter’s wedding. Both parties’ reputations, businesses, and cash flow were in trouble. Each sought money damages from the other.

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Differing Attitudes and Processes in Mediation around the World PDF

Many of us often get caught up in our own way of doing things. In Southern California mediation practice, while there are often differences in process determined by counsel, party, or mediator preferences, most participants follow a pretty regular road to mediation in the first place. That’s because the prevailing experience at home is that either courts or a contract “force” everyone into mediation, with the effect of allowing all of the players to remain stalwart in their positions, at least at the outset.

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Report from the 2016 ICC International Commercial Mediation Competition in Paris – How Can There Be A “Competition” in Mediation?

Mediation is supposed to be a “win-win” proposition, right? You never think of there being a winner or a loser in the process. In fact, avoiding a “win-lose” outcome is fundamental to the procedure. So how in the world can there be a construct such as an international commercial mediation “competition,” such as the extraordinary event I am currently attending in Paris?

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Danger Zone in California Civil Trial Courts – Private Mediation Does Not Toll the Five-Year Period for Bringing a Case to Trial PDF

It’s back. That risky zone in which a case can sneak past you and be subject to mandatory dismissal for the plaintiff’s failure to bring it to trial within five years. California Code of Civil Procedure § 583.310. Most of us never thought we would see the return of that pesky problem after the Los Angeles County Superior Court instituted the one-judge-one-case approach that created tremendous efficiencies in case management and got most parties through trial in under two years.

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