“Elements of Style”

Elements of Style

Last week I attended a memorial service for a 61-year-old businesswoman, wife, and mom. I didn’t know Tamara well, only through my chamber of commerce, but she touched me gently and deeply whenever I saw her. So much about the service, and her, was unforgettable.

It turns out that Tamara was a local icon of sorts, a business leader and visionary grounded with compassion, common sense, and humility. The speakers at the ceremony all hailed her many talents, but the funny thing was that there were so many stories about her fashion sense, or rather, her lack thereof.

As an owner of an in-home care service for seniors, Tamara wore a uniform of sorts – everywhere. Every speaker at the service described her regular outfit – a modest, crisply ironed button-down blue shirt with company logo and ¾ length sleeves, business slacks, and “sensible” shoes. Everyone, from the pastor to her colleagues to her family, couldn’t help but comment on Tamara’s lack of style.

One non-profit director told of dressing as Tamara’s twin for three monthly meetings in a row, but she lamented that her outfit never seemed to quite match up and nobody even noticed the joke.

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U.S. Department of Labor Sets New Rule for Handling ERISA Disability Claims

U.S. DOL Sets New Rule for Handling ERISA Disability Claims

DOL.12.16.Fact Sheet

Federal Register.ERISA.12.19.16

Like it or not, the new DOL Final Rule amending the disability claims handling and appeal procedure at 29 C.F.R. §2560.503-1 will work a significant change in the administration of ERISA-covered disability claims. The Department of Labor states that these procedures largely parallel those used for group health benefit claims under the Affordable Care Act. The Rule became effective on January 18, 2017 and applies to all disability claims filed on or after January 1, 2018.

The preamble to the rule – which is an interesting historical overview and summarizes many comments that were submitted in response to the first version of the rule – states:

“Even though fewer private-sector employees participate in disability plans than in group health and other types of plans, disability cases dominate the ERISA litigation landscape today. An empirical study of ERISA employee benefits litigation from 2006 to 2010 concluded that cases involving long-term disability claims accounted for 64.5% of benefits litigation whereas lawsuits involving health care plans and pension plans accounted for only 14.4% and 9.3%, respectively.”

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Short Lives. Rich Lives.

short-lives-rich-lives

Life is short. Some short lives are longer than others. Some short lives are full of love, good health, happiness, and fulfillment. Some short lives are troubled by countless struggles, tragedies, and suffering. Of course, most of our short lives are a mix of it all.

I visited Vancouver last week for a mediation conference. Every time I attend this particular conference, my world expands with greater knowledge and insight. The job of a mediator is to help people resolve conflicts. Conflicts are consuming – they eat up valuable chunks of our lives and business. And so we search for solutions that preserve resources and save time.

Which brings me back to my focus on our short lives, and how my first visit to Vancouver will forever influence my perspective on how I use my time and what I value.

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With All Due Respect, Your Honor, . . . (Mediators Are Available to Everyone. Los Angeles County Does Not Have a Two-Tiered Justice System.)

With All Due Respect.16.09.02

Yesterday, I read with great distress the Op-Ed piece written by Judge Michael Stern in the Los Angeles Times. The apparent purpose is to convince California legislators to appropriate more of its budget to the Los Angeles County court system. However, Judge Stern argues that the budget cutbacks have resulted in “a two-tiered judicial system; a speedy private one for the rich and a protracted public forum for the less advantaged.”

Playing the haves-and-have nots card is usually a reliable way to generate passion these days. But the picture Judge Stern has created is faulty – like a trompe l’oeil painting – because it is based on the questionable assumption that an adjudicated result is the only “fair” result and a fuzzy description of dispute resolution options available to the public at large.

I think everyone would probably agree that the Los Angeles County Court system is backed up and vital resources have been lost as a result of budget cuts. I completely disagree that the backup has created a good system for the rich and a bad system for the poor.

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Med-Arb: A Controversial Dispute Resolution Option

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 Is an “Action to Enforce the Governing Documents,” Providing Statutory Basis for Attorneys’ Fee Award

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 May Be Useful when Caring for Aging Family Members

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?

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

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 the Five-Year Mandatory Dismissal Period

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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