Alert: Mandatory notification of mediation

Posted February 25th by Dave Smullin

There is a new requirement for all California attorneys who might use mediation. SB 954 of the 2017-2018 California legislative session, effective January 1, 2019, amended existing California Evidence Code section 1122 and created new Evidence Code section 1129. The new law requires that attorneys who wish to mediate a case on behalf of a client first give the client notification of the confidentiality of mediation and matters in preparation for mediation and receive back an acknowledgement that the client has read and understood that notification. The notice must meet font and layout requirements and be printed on a single page that is not attached to any other document. Section 1129(d) includes a recommended "Mediation Disclosure Notification and Acknowledgement" form.

The California Supreme Court in Cassel v. Superior Court (2011) 51 Cal.4th 113 declared communications in mediation as confidential under the Evidence Code.  Its opinions led to inclusion in AB 98 ((Wagner, Chapter 108, Statutes of 2012) of a new topic for study by the California Law Revision Commission (CLRC). In December 2017, the Commission issued its final recommendation: to create an exception to mediation confidentiality for evidence relevant to prove or disprove an allegation that an attorney breached a professional obligation when representing a client in the context of a mediation or a mediation consultation.  As reported by the Legislative Counsel, this led to extensive criticism by "a wide array of stakeholders" while receiving "very little support" from those advocating for the CLRC proposal.

SB 954 furthers this directive by ensuring that clients are fully informed of the limitations on disclosures created by the confidentiality of mediation and matters associated with it and that they so acknowledge in writing. The new law also provides a limited safe-harbor provision in Section 1129(e), which states that non-compliance with the new requirements "is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation." 

Posted in Litigation, Mediation Practice, Attorneys, California, Mediation Policy, Law

The Best Time to Mediate

Posted December 4th by Dave Smullin

Some months ago I read an interesting essay entitled, “4 Things You Should Know About Civil Mediation” by Chris McHallam. Though some points in the essay may be familiar, McHallam’s assessment of the meaning of a court decision bears repeating: “A court decision is a retrospective snapshot judgment based upon law and judicial perspective, not a carefully constructed resolution tailored to the parties’ present and future interests.”

McHallam also notes “There is no universal right time to mediate.” One maxim is that the best time to mediate is when the attorneys know 85% of the facts and have done 15% of the work. Another is “as soon as possible.” Client emotions and the cost of maintaining a law practice are normal temptations to litigate. Moreover, it is easy to forget that a reputation for solving problems quickly and fairly is the most valuable asset an attorney can have.

As McHallam notes, attorneys often are concerned that suggesting mediation may be perceived as a sign of weakness. While such concerns should lead to careful consideration of how to suggest mediation, they do not obviate the advantages of ascertaining the facts when they are fresher, getting parties to the table when they are less entrenched and minimizing fees when they are still relatively small and less challenging to the account needed to pay any settlement.

Pre­complaint mediations can sometimes take a little more time. However, in every case, once clients understand the significance of their choices and the cost of a litigation budget, they are at least as likely to prefer to end the litigation as to prefer to continue it.

Posted in Litigation, Mediation Practice

Preparing for Mediation

Posted October 4th by Dave Smullin

In her blog, Phyllis Pollack extolls the need for preparation. I have the following suggestions for what that means. First, start early! Do so by identifying jury instructions applicable to your case. These are explicit guides to what you need to prove and where mediators may focus. Then identify local jury verdicts which demonstrate how juries have responded to similar cases.

Identify the sources of the proof you need. Analyze not just how each will be presented, but what objections you may encounter. A “smoking gun” document will do you no good if you have no way of introducing it into evidence, or if a motion ad limine will prevent you from doing so.

Focus on neutral witnesses and the potential credibility they would have to a mediator or to the other side. Write your mediation statements sparingly, focusing on your strengths and the other side’s vulnerabilities. Above all, tell your client’s story. The law is interesting, but stories are more so. Address your obvious weaknesses thoughtfully, but avoid exaggeration.

Look for opportunities to seek agreement on relatively minor matters. Outside career counseling or agreed-upon responses to pre-employment inquiries are not only inherently valuable, agreement on them creates investment in the process and the momentum which regularly leads to a complete settlement. Prepare your client. Take time to explain what mediation is, how the process works and how to respond to the mediator’s questions. Have a plan for your offers or demands. Each mediation has a focus and flow of its own, so prepare your client for the unexpected. Plan for you and your client to work late; doing so does not guarantee a settlement, but it makes it more likely.

Posted in Mediation Preparation, Emotion in Mediation, Mediation Practice

The Advantages of Mediation in Today’s Workplace Environment

Posted September 19th by Dave Smullin

Mediation is confidential, deliberative, quick and private. Today, employers and their supervisors have an intense interest in avoiding media attention. Mediation focuses on facts and their significance at trial, not on allegations. A mediation date can be arranged in weeks versus a realistic trial date usually over a year later. Mediation participants are limited to the parties, their lawyers and the mediator rather than a courtroom full of staff, potential jurors and the general public.

The swift and seemingly indiscriminate termination of some accused of harassment is generating fear of invalid allegations in managers and their families. They are in jeopardy now in a way that victims usually have been. What matters is that parties to allegations deserve the opportunity to explore what happened, what should have happened and what needs to happen, quickly and in confidence. For example, it may be true as in a mediation that I conducted, that an adulterous relationship was originally consensual. However, when that relationship ended, the accused continued to force his attentions on his former lover in ways that were clearly unwelcome. Pre-complaint mediation provided a quick, confidential way of resolving this uncomfortable, embarrassing situation. For the above reasons, mediation can be a valuable process, both pre- and post-complaint.

Posted in Workplace Employment, Sexual Harassment, Pre-compaint Mediation, Confidentiality 

Compassion in the Practice of Mediation

Posted August 3 by Dave Smullin

I read an essay, recently, on the "Wisdom of Native Americans" as applied to mediation. The author discusses fundamentals like “listening” and “respect” as well as less recognized values such as “compassion.” That analysis reminded me of a recent mediation where compassion transformed deep differences into a satisfying settlement.

The case involved a retail driver plaintiff who advised her employer that she had visited the Labor Commissioner in pursuit of overtime and expense reimbursements, including for some expenses which had not yet been submitted. She was then fired in part for insisting on payment before completing her work assignments. Thereafter, she sued for the overtime, unreimbursed expenses and wrongful termination.

The parties were far apart prior to the mediation, in part because the employer could not understand how it could be liable for overtime or expenses for which no documentation had been provided. The first three hours of mediation involved little progress. However, by focusing on what the plaintiff’s work life was like as her working relationship deteriorated, I learned that she had some personal experiences which were horrific. Suddenly her behavior appeared more understandable. In caucuses with the employer, while maintaining confidentiality about the facts, I shifted the tone of how I referenced the plaintiff’s behavior. Negotiations then substantially improved, resulting in an agreement on all issues. It was another example of the expression “The parties do not care about what you (the mediator) know, until they know how much you care.” Compassion had provided a major breakthrough.

Posted in Workplace Employment