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Posted on November 5th, 2013

As a mediator, I have seen parties and counsel dig in their heels over many things.  It is not always about money, though that is typically what it is about.  My job is to move them out of the predicament they have put themselves in.  The long view is that the case should be settled.  There are, in my view, very few cases that cannot be settled, if the parties and counsel are realistic about the merits of their own case and their adversary’s case.

Trouble can come in many forms.  Let’s consider the following: one party refuses to respond to an offer or demand, considering it an “insult” or so unrealistic that it is “pointless” to respond.  If this happens early on, I stress to the parties and counsel in private caucus the importance of remaining engaged in the negotiating process, as the mediation session is the best chance to resolve the case before significant additional costs are incurred.  Insisting that the other side “bid against itself”, by adjusting the offer or demand before a counter will be extended, can be a short cut to a failed mediation.

In the private caucus with the recipient of an “insulting” offer or demand I will urge the party to step back from the position.  This may take some time, depending on how committed to this position the party and counsel are.  It is important that I establish and maintain rapport with this party.  I will encourage the parties to vent about their views as to the “unreasonableness” of the other side.  This alone may be enough to cause the party to soften his or her fixed position.  It also gives me, as the mediator, insight into why the party is taking this hard line position.

After exploring with the party the reasons and motivations behind their position, I suggest that some sort of monetary response is the right thing to do.  The goal is to keep the dialogue going.  As long as the parties are talking, progress toward settlement can be made.  Key to my role in the process is to have the trust of both parties.  To have this trust it is necessary to treat all parties and counsel with respect and listen actively to everything that is said.  Ultimately, the counter offer I bring to party and counsel in the other caucus room will keep the dialogue going.

Mediation is an art, not a science.


Posted on November 5th, 2013

This question is one of the first things counsel (whether plaintiff or defendant) must consider at the beginning stage of a case.  In my 36 years of litigation practice I have faced this question thousands of times.  As a mediator for the last 17 years I have seen how important it is for counsel on both sides of litigation to effectively grapple with this issue.

There is no absolute right answer as both sides to case need sufficient information before mediation can take place.  How much information?  In a personal injury case, with clear liability and small to medium damages, early mediation is a good idea if the parties have shared documents pertaining to damages or are prepared to do so.  An experienced and skilled mediator can assist in closing the case.  This can work before suit is filed.

Where the case is more complex the parties might want to consider facilitating the other in focused discovery that addresses disputed issues.  Medical malpractice, legal malpractice, real estate, contract disputes and others with complex issues would fall into this group.  It is the wise attorney (plaintiff and defendant) who cooperates with the other side in obtaining documents and depositions so that mediation is fruitful.  Once the necessary discovery is done, then mediation can proceed.  This of course requires a level of trust between the sides.

In cases where attorney’s fees are mandated by contract or statute (employment, discrimination, etc.), an early mediation can facilitate a settlement before the attorney’s fees exceed the provable damages.  A plaintiff case that is heavily laden with costs and fees is more difficult for the plaintiff to settle than one where that is not the case.  This difficulty also burdens the defense.

Early mediation is probably not indicated in a case with huge damages or where one or both sides have genuine questions about the strengths and weaknesses of the other side’s case or are seeking to develop factual issues to improve their positions on liability, damages or credibility.  Here the parties may wish to engage in vigorous discovery to flesh out these issues before mediation.  Once the key discovery is completed and the parties have taken their measure of each other on the key issues, mediation can help.

There is another category of cases where mediation should be deferred.  There are many cases, especially the ones where damages are small to medium, in which counsel let the files drift.  Here it may take an imminent trial date or mediation deadline imposed by the court to get counsel’s attention.  Once counsel are jolted to attention, mediation can proceed after counsel have done what they need to do to inform themselves and the other side about the issues.

It is important for counsel on either side of the case to grasp when a particular file may be profitably mediated.  It is also important for counsel to determine to what extent the other side in a case is amenable to mediation.  A simple phone call to other counsel might suffice.  The more thought regarding when a file should be mediated that an attorney puts into his or her case the more likely the correct decision will be made on this topic.

Mediation is an art, not a science.

What is Early Neutral Evaluation and how does it work?

Posted on April 23rd, 2013

Early Neutral Evaluation (“ENE”) is a type of settlement conference. It generally takes place earlier than mediation or arbitration. The purpose of an ENE is for the parties to a dispute to hear a third person’s expert assessment of the case.

Unlike a mediator, the evaluator is not focused on bringing the parties to an immediate resolution of the case. Instead, the evaluator works with the parties to help bring them closer to potential settlement by helping them more clearly identify the issues which have otherwise prevented them from resolving their differences. The process allows the parties to agree to filter out the issues that are disputed from those that are not in dispute.

Typically an ENE is conducted in the following manner and generally is limited to two (2) hours :

  • Each party makes a 15-30 minute presentation of their case;
  • The presentation may include documents that support that party’s theory of liability and damages;
  • The evaluator asks questions during these presentations, but the parties are not allowed to interrupt one another during their  presentation nor ask questions themselves;
  • The evaluator then attempts to find agreement among the parties on given issues;
  • The evaluator then leaves the room and spends time to prepare a brief case evaluation. It contains the evaluator’s opinion of the strengths and weaknesses of the case for each party;
  • The evaluation contains an opinion of who the prevailing party will be based upon the presentation provided;
  • The evaluation is not yet disclosed to the parties. Instead, the evaluator offers the parties the opportunity to discuss settlement. If one party rejects the idea of settlement discussions at that point, then the evaluator discloses the case evaluation;
  • The ENE is confidential. It is not disclosed to the Court; and
  • The parties may use the evaluator to develop a plan on how to manage the case through the discovery process.

An ENE is beneficial in many ways:

  • It gives the parties a forum to exchange information in an early and efficient manner;
  • It allows the parties and their counsel the ability to clarify issues and realistically assess the strengths and weaknesses in their case;
  • The exchange between parties and obtaining an independent opinion encourages early settlements;
  • The evaluator’s opinion is not binding, but the parties can stipulate if they chose to;
  • It is less costly because a mediation  session is usually longer (four to eight hours);
  • It gives each side to the dispute the ability to learn quickly about the other party’s case;
  • It is a less adversarial venue;
  • It helps the parties identify issues they can and cannot agree upon and therefore helps the parties focus their discovery to only issues in dispute and thereby make  the litigation process less expensive;
  • The parties learn an independent assessment of the case from an unbiased third person; and  
  • Ultimately ENE helps the parties to re-evaluate their respective positions and set up the matter for resolution in mediation without having to spend time laying the ground work that was spent during the ENE.


Role of a Mediator: A moderator with no opinion, an evaluator of your case, or both?

Posted on April 23rd, 2013

You have retained a neutral to handle your next mediation. You hope that this neutral will help you during mediation “see the issues, the facts, the law and the evidence your way” to assist you to convince the other side of the merits of your case and thus help you justify your settlement position during the mediation process. Chances are your adversary is hoping for the same thing.

If a mediator sides with one party in the process, he or she loses neutrality. If one party believes the mediator lacks neutrality the mediation will fail. A mediator’s role is to make the case settle and not carry water for either side. Good mediators are active listeners and allow the parties to vent their frustrations during the mediation process. Mediators need to understand the issues from all perspectives while keeping in mind that the ultimate goal is to settle the dispute between the parties.

It is not uncommon during mediation for one or more parties to ask the mediator what the mediator thinks of the opponent’s case. If you want this “neutral” to express an opinion as to the merits of your side of the case, you should be aware before you select the mediator whether s/he is willing to do so. A careful mediator will not express an opinion on the merits at the outset. S/he needs to allow the parties to express themselves on these issues first. If your mediator  doesn’t do this, it is likely you need to find one who will be comfortable doing this.

If your intent is to have the neutral give an opinion as to the merits of liability, damages, credibility, likely jury reaction, etc., perhaps what you really want and need to have is an Early Neutral Evaluation (“ENE”) of your case instead of mediation.

So how does an ENE work and how is it different from mediation? This distinction follows in our next mediation tip series.

Cost Cutting In California Severely Impacts The Court and ADR Systems

Posted on April 23rd, 2013

The ADR program for the Los Angeles Superior Court officially closes its doors June 28, 2013 after 20 years.  The bulk of the civil dispute cases handled by the Court’s ADR system over those years customarily involved matters with exposure of $50,000 or less.  So what now?  Well clients and counsel will need to utilize private mediation more than ever. The incentive to mediate cases earlier and more often will also be the direct result of significant changes in the way Southern California courts do business.

For those of you who litigate civil cases in Los Angeles County (defined as personal injury cases connected with products, medical malpractice and auto collisions) the following information is significant to you:

  • There will only be a total of thirty one (31) trial courts in the County! According to Wikipedia, the Superior Court of Los Angeles County has nearly 600 courtrooms throughout the county.
  • Ten (10) of those trial courts will be in the Central District and there will no longer be independent courtroom assignments. All such matters will be handled by a master calendar department in downtown LA.
  • The remaining twenty one (21) trial courts will be located in the following cities: Chatsworth (1), Pomona (1), Pasadena (2), Long Beach (2), Torrance (3), Santa Monica (5) and Van Nuys (7).
  • If you cannot settle your landlord-tenant dispute by mediating your matter, be aware that all Unlawful Detainer actions in LA County will now be heard only in Santa Monica, Pasadena and Long Beach.
  • Say that you are a creditor and you have a debt collection problem and you need to go to court, your matter will be handled in Chatsworth, CA.
  • What? A family member, client, friend has died without a will or a trust ….your probate matter must now be heard at the Stanley Mosk Central District Courthouse.
  • Your case is important and you wish to make certain that all that is said in the courtroom is reported? Well, open your check book, as the LA Court System will no longer provide court reporters…you must hire your own well in advance of your hearing.
  • Are you filing a new personal injury lawsuit in LA County? Well, there will only be five (5) judges who can draw for your case: Hon. Elia Weinbach, Hon. Teresa Beaudet, Hon. Rafael Ongkeko, Hon. Steve Kleified and Hon. Rita Miller. These judges will hear all such matters that are not deemed to be “complicated”.  The term “complicated” has not yet been clearly defined. However, it appears that most medical malpractice cases will not be deemed complicated. The standard on whether a case is “complicated” will likely be what a judge’s gut feeling tells him.
  • Although the Courts promise to give parties a firm trial date 18 months from the date of filing their lawsuit, the new rules provide that you can file a motion for failure to prosecute the case after three (3) years plus one (1) day following the filing date of the Complaint.  I guess the Courts fully expect to have cases hanging around right up against that three (3) year rule.
  • If this was not enough, consider that you will only be given a one-time opportunity to challenge your assigned judge. So use it wisely. If you ding a judge who is set to hear an important motion of yours, consider that down the road you are stuck with whatever judge you are assigned for trial.
  • Do these rules apply to other Southern California Counties?  Well, no formal announcement has been made by other counties, but the word on the street is that both Riverside and San Bernardino counties are having the same issues and we may see a formal pronouncement soon.

So what does all this mean to parties who cannot resolve their dispute without filing lawsuits in LA County?  It means that the Courts will not be able to handle the congested calendars, trials will be backed up and lawyers who think they are going to trial and prepare will likely be called back again and again until they finally get a courtroom. 

It will be difficult for anyone to really know when a case will go to trial,  your trial judge  and what your jury pool make up will be.

Given the back-end costs associated with trial preparation and waiting time to get to court, private mediation and perhaps even arbitration will increase in popularity. Private neutrals will throw their hats in this arena and vie for your business. It will become even more important for you to evaluate your case early, seek out the best neutral for your case and resolve the matter on your own ….otherwise, you may find yourself sitting on those courtroom steps waiting a very long time for your day in court.







Mediation 101: Finding The Right Mediator For Your Case

Posted on April 23rd, 2013

You hope to find a quick, efficient, and cost-effective way to reach resolution to your case especially because recent budget cuts within California’s court system will result in your case hanging around for a minimum of three(3) years. While there are many who tout their abilities to mediate successfully, including former judges, not all mediators are alike and right for your particular case. Yes, basic knowledge of principles of law applicable to your case is a must, but then again that should be a given since most mediators have law degrees and have practiced law during their careers. However, apart from knowing the law, and how evidence will work favorably or unfavorably to your particular case, it is important for you to do some homework of your own before you select that mediator who has the right combination of skill, knowledge, and temperament for your case.

Here are a few things to consider the next time you head down the mediator selection path:

  • Why not pick up the phone and speak directly with the mediator before you retain him. Do not just rely on a resume and the word of counsel. Much can be learned by that personal contact. As long as the mediator offers equal access to pre-mediation discussions to all potential parties, take advantage of this process. You may save yourself time and money in the long run.
  • In general mediators schedule half-day and full-day sessions, but do you really need that many hours of mediation? Well, while it may depend in part on the complexity of your case, this decision may also depend on whether your mediator has received, well in advance, all requested briefs and documents that you wish to provide and has actually read them beforehand. Up to that point, only you know whether the parties in your case have been cooperative or contentious. This fact may further dictate how much mediation time will be necessary for the mediator to help break down any barriers that may exist between counsel and the parties maybe just because of differences in personalities and party temperament.
  • Get to know the parties’ and counsel’s cultural and ethnic backgrounds when picking out the right mediator. In a diverse society, especially in California, is your mediator equipped to relate to ethnic, gender, and cultural differences of the parties and their counsel? The right mediator may recognize both the spoken and unspoken differences and be sensitive to those differences which will help during the negotiation process.
  • Finally, for particular cases do you want a mediator to give you at some point in mediation a “neutral evaluation of the case”? Not all mediators will shift their role as a facilitator mid-stream during mediation. Parties often walk away unhappy because a mediator announced that he was unwilling to provide an independent analysis of the case. The issue of whether the neutral in your next case is willing to use a mixed facilitative and evaluative approach to resolve your case is rarely discussed with the neutral prior to hiring him. Avoid being unhappy and find out if the neutral you wish to retain can and will offer this service if you desire it.  

One thing is for certain, if you put in the up-front time and energy to carefully interview and select the right neutral for you on a particular case, you will probably be much happier with the results. Stay tuned for further tips from the EA Mediation Forum Blog.



Welcome to the Ericksen Arbuthnot ADR Blog

Posted on April 23rd, 2013

Welcome to the launch of Ericksen Arbuthnot’s Mediation Forum Blog where we offer you, the reader, the opportunity to get the inside track on mediation techniques, strategies, pitfalls, and mediation styles. Our goal is to provide valuable information, those pearls of wisdom, to assist you in getting your case settled and using the mediator’s services as effectively as possible. In time, our Blog will have a comments section for you to weigh in on the topic discussed.

EA attorneys from each of our offices who offer mediation services and have training and experience shall contribute their own tips.

Meet Your Bloggers

Roger Allen, Partner

Roger Allen is the Co-Chair of the Alternative Dispute Resolution practice group and is AV® Peer Review Rated by Martindale-Hubbell. Roger has practiced law for more than 30 years in the areas of defense of civil litigation, mediation and arbitration. He has mediated in excess of 300 cases in all fields of civil litigation and currently serves as an independent neutral arbitrator on cases between Kaiser Health Foundation and its members. Over the past 20 years, he has arbitrated more than 200 cases for the courts and private parties.

In addition, Roger has tried 13 jury trials to verdict in the fields of construction site accidents, automobile accidents, trip and fall, inverse condemnation, fire loss and general negligence. In addition, he has had principal responsibility for hundreds of construction defect, products liability, public entity defense, insurance and professional negligence cases.

Roger is resident in the firm’s Oakland office and can be reached at 510.832.7770 and rallen@ericksenarbuthnot.com.

George Hernandez, Partner

In addition to being the Assistant Managing Partner of the Los Angeles office, George is the Southern California team leader for the Alternative Dispute Resolution practice. George is AV® Peer Review Rated by Martindale-Hubbell. He has extensive trial experience and has taken courses at the prestigious Strauss Institute for Mediation at Pepperdine Law School and is a practicing mediator.  He was also a voluntary settlement officer for the Ventura county courts from 1994-1996.

George has practiced law for 30 years and his practice includes professional liability, real estate agents and brokers, employment and labor law, construction defect law, toxic/environmental torts, premises liability, products liability, and a range of general civil liability and business litigation matters.

George can be reached at 213.489.4411 and ghernandez@ericksenarbuthnot.com.