Mediation Tips and Arbitration Bits

• Publication year: 2022
• Author: BY Hon. Michael D. Marcus (Ret.)

MEDIATION TIPS AND ARBITRATION BITS

BY Hon. Michael D. Marcus (Ret.)

Judge Michael D. Marcus (Ret.) is a mediator, arbitrator, and discovery referee at ADR Services, Inc. Prior to being a fulltime neutral, approximately 20 years ago, Judge Marcus was a trial lawyer, a law firm partner, and a judge at the California State Bar Court. Judge Marcus has also taught at law schools, is a legal author, and was a member of the Executive Committee of the Labor & Employment Law Section. He can be reached at (310) 201-0010 or christie@adrservices.com.

A MEDIATION CHECKLIST

Mediations, an essential part of civil litigation, require tactical and ethical considerations both before, during and after their conclusion. The following discusses those considerations.

TALK TO THE CLIENT ABOUT MEDIATION AND ITS BENEFITS AND NEGATIVES

The ABA's Section of Litigation, Guideline 3.1.1, provides: "A lawyer should consider and should discuss with the client, promptly after retention in a dispute, and thereafter, possible alternatives to conventional litigation, including settlement." Clients should also be told about the risks of litigation, including trial, mediation costs and the financial advantages and disadvantages of settling or going to trial. In discussing a mediation, provide the client beforehand, pursuant to Cal. Evid. Code § 1129, with a writing containing the confidentiality restrictions in § 1119, which the client shall provide the attorney with a written acknowledgment that the client has read and understands the confidentiality restrictions.

DECIDE WHEN THE MEDIATION SHOULD BE CONDUCTED

Should it be conducted pre-filing when neither party is completely knowledgeable about all of the factual circumstances and legal consequences; shortly after the complaint has been filed, which may result in a covered claim; or shortly before a dispositive motion shall be heard or just before the trial or arbitration, when many of the costs have been incurred?

CHOOSING THE MEDIATOR

Select a mediator whose knowledge of the applicable legal principles and style fits the needs of the case. It is also beneficial to work with a person with whom the lawyer has worked previously.

CONSIDER TALKING TO THE MEDIATOR BEFOREHAND

A pre-mediation conference may be helpful if the mediator should be told about attendance issues, factual or legal issues that cannot be adequately discussed in a brief or, for example, a client is unrealistic or difficult. Such discussions are confidential. See Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (2007), holding that mediation confidentiality applies to any writing or statement that would not have existed but for an impending mediation.

BE FAMILIAR WITH THE APPLICABLE LEGAL PRINCIPLES

Review the civil jury instructions for the elements of the applicable causes of action and the leading legal texts for additional relevant law. Review the standards and rules applicable to mediations, in particular, the requirement for court-ordered mediations in Cal. Rule of Court rule 3.874. Moreover, be aware that all communications in mediations and writings prepared expressly for those mediations are confidential. See Cal. Evid. Code §§ 1119-1129, Foxgate Homeowners Association, Inc. v. Bramalea California, Inc., 26 Cal. 4th 1 (2001), Rojas v. Superior Court. 33 Cal. 4th 403 (2004), and Cassel v. Superior Court, 51 Cal. 4th 113 (2011).

ANALYZE THE FACTUAL AND LEGAL STRENGTHS AND WEAKNESSES OF THE CASE

To better evaluate the strengths and weaknesses of the case, write out the elements of every cause of action and then, in adjoining grids, insert all of the admissible evidence in support of every element. Include, but give less weight, to evidence of questionable relevance. Be prepared to defend any cause of action that lacks evidentiary support or uses evidence that is arguably inadmissible.

PROVIDE AN INTERESTING AND TIMELY MEDIATION BRIEF

Provide a brief introduction which incorporates the theme of the case followed by a concise review of the pertinent facts. Do not rehash obvious or basic legal principles of which a knowledgeable and experienced mediator is aware. Discuss only those issues that are in conflict or are novel. Provide the trial or

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arbitration dates, and whether a dispositive motion has been filed or heard and the status of settlement discussions. Include exhibits that truly clarify or explain factual contentions.

DECIDE WHETHER OR NOT TO REVEAL A "SMOKING GUN"

Considerations in this regard are: Is the information case dispositive? Will it persuade the jury or arbitrator or is its value exaggerated? Will the information, in any event, be revealed in discovery? Is the information inadmissible and, thus, could never be used at a subsequent hearing? Is the financial cost of developing the issue at trial or arbitration prohibitive? And, in any event, will the...