Attorneys often say that pre-litigation or early-litigation mediation just doesn’t work for them or their clients. The client may be too angry at the outset to consider the concept of compromise. The lawyer may need to impress a potential client with his “pit bull” aggressiveness as a litigator. The client may insist on having his “day in court.” And, what about discovery? Shouldn’t a responsible lawyer conduct discovery before settling his client’s case? Why should the lawyer give a preview of his case to the other side?
Why did you decide to read this article? Perhaps you are about to write your first-ever mediation brief. Or maybe you’ve written hundreds of them before. I’ll bet you’re looking for something new to help get the best results possible.
Of course I can give you an objective list of items that are always helpful, but really pretty standard. And you know those already: (1) the operative facts of the case, (2) the parties’ legal positions, (3) the details of the relief sought, (4) the history of any settlement discussions, (5) copies of any key documents.
Do you and your business partner have a dispute? Is your company about to dissolve because of a conflict you can’t resolve? Is your business having trouble with a vendor, client, or customer?
Are you trying to resolve your dispute quickly, fairly, and inexpensively, without going to court?
Consider this: An impartial third person with experience in both litigation and pre-litigation dispute resolution can help you save your business and important income-generating relationships, even relationships in family business disputes.
On September 23, 2013, in the case of Swanson v. State Farm General Ins. Co. (Case No.B240016; LASC Case No. EC055177) the California Court of Appeal (Second District, Division Seven) held that when an insurance company withdraws all reservations of rights and coverage defenses that give rise to the right to retain Cumis counsel (San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358); Civil Code section 2860), it has no duty to continue to pay the insured’s Cumis counsel’s fees and can appoint counsel of its choice to defend the insured in a third party action. http://www.metnews.com/sos.cgi?0913//B240016
On September 20, 2013, in HM DG, Inc., et al. v. Amini and Beizai, etc., et al., Case No.B242540 (LASC Case No. BC475302), the California Court of Appeal (Second District, Division Three) held that, because the court has the power to appoint an arbitrator under Code of Civil Procedure section 1281.6, “neither the absence of a definite method, nor the presence of ‘alternative options’ for appointing an arbitrator renders an otherwise valid arbitration agreement unenforceable.” http://www.metnews.com/sos.cgi?0913//B242540.
Mediation is an informal business meeting that is focused on negotiating a mutually satisfactory solution to a dispute. The parties control the outcome and avoid the imposition of a result by a judge or jury who do not have the same interest in creative solutions as the parties do.
The parties and their lawyers have the best chance of ending the dispute on their own. If direct negotiations fail, or escalate into unproductive arguments, it’s time to bring in a skillful mediator. The mediator’s job is to patiently explore all involved parties’ interests, including their lawyers’ interests, and assist in developing solutions that will be in everyone’s best interests.
In the context of business mediation, I am often asked, “Who do you think are your clients?” This question cuts to the heart of competing and ethically challenging interests in a business mediation.
Lawyers in general face the potential conflict between their own monetary interests and their clients’ interests in having their problem fixed and settled as quickly and inexpensively as possible. They want repeat business from their clients, so they are sure to do what it takes to keep them happy. Mediation lawyers question whether arbitrators and mediators similarly feel beholden to those lawyers who, hopefully, will hire them again and again for business dispute resolution.
In a long-awaited decision on the interplay between California’s Unfair Competition Law (“UCL”) (Bus. & Prof. Code, § 17200 et seq.) and the Unfair Insurance Practices Act (“UIPA”) (Ins. Code, § 790 et seq.), the California Supreme Court today issued its ruling in Zhang v. Superior Court, Case No. S178542 (rev. granted 2/10/10). The opinion appears at the following link: Zhang v. Superior Court, Case No. S178542 (rev. granted 2/10/10)
The Supreme Court held that the case of Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 304, “does not preclude first party UCL actions based on grounds independent from section 790.03, even when the insurer’s conduct also violates section 790.03.” (Slip Op. p. 2) The decision is limited to the first party context. (Id., p. 2, fn. 2)
On July 23, 2013, in the case of Mon Chong Loong Trading Corp. v. Superior Court (2013 WL381168), the California Court of Appeal held that a voluntary dismissal without prejudice following a Section 998 offer that was not accepted triggers the cost-shifting provisions of California Code of Civil Procedure Section 998.
In this case, the plaintiff slipped and fell at a supermarket and sued for negligence and premises liability. Defendant made a Section 998 settlement offer. Plaintiff did not respond to the offer, did not appear for an independent medical exam, and did not exchange expert information. Just before trial, plaintiff filed a voluntary dismissal of the action without prejudice.
A July 3, 2013 decision from the California Court of Appeal holds that parties who prevail in petitioning for contractual arbitration will have to wait for the outcome of the arbitration to determine the “prevailing party” for purposes of awarding attorney fees and costs under Civil Code § 1717.
In Roberts v. Packard, Packard & Johnson, the Second Appellate District concluded that the trial court erred in awarding attorney fees and costs to defendants following a successful petition to compel arbitration under a contingency fee agreement that had a broad arbitration clause.