Do Arbitrators and Mediators Have “Clients?”

Do Arbitrators and Mediators Have Clients PDF

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. Continue reading

California Supreme Court Holds that a UCL Action May Be Based on Conduct that Allegedly Violates Both the UIPA and Other Statutes or Common Law

California Supreme Court Holds that a UCL Action May Be Based on Conduct that Allegedly Violates Both the UIPA and Other Statutes or Common Law PDF

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) Continue reading

Voluntary Dismissal without Prejudice Triggers Trial Court Discretion to Award Expert Witness Fees under C.C.P. Section 998

Voluntary Dismissal without Prejudice Triggers Trial Court Discretion to Award Expert Witness Fees under C.C.P. Section 998 PDF

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. Continue reading

New Decision on Attorney Fees on Petition to Compel Arbitration

New Decision on Attorney Fees on Petition to Compel Arbitration PDF

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. Continue reading

Problem Solving

Problem Solving PDF

When is the last time you thought everything was perfect? Never, right? Inevitably, things don’t always go your way. Or, there are always obstacles to be overcome. Or, people just don’t see things as you do, and, of course, they’re wrong. Why don’t they just see things the right way?

It has taken me a lifetime to learn how to see things from all angles. Most of those different perspectives are simply reflections of people’s differing agendas, especially when people don’t even believe that they have agendas, or, in reality, needs. Continue reading

Communication Creates Power

Communication Creates Power PDF

Have you ever listened to a phone conversation between two individuals and wondered, “How long will it take these people to figure out that they are talking about totally different things?”

In this day of expanded communication, it seems that more than ever, people do not communicate effectively, often leading to misunderstanding and conflict. I suspect it is a matter of hearing what you want or expect to hear, and acting and reacting accordingly. Sometimes, people simply do not understand each other, and for one reason or another, do not seek clarification. Continue reading

Take Another Look at Early Mediation

Take Another Look at Early Mediation PDF

The lawyers who practice in California’s civil courts are already seeing the substantial delays that have resulted from budget cuts in the court system. Parties and lawyers need to take a closer look at the advantages of mediation early in the life of a case.

 

Most clients think that filing a lawsuit is a last resort, and that they have exhausted all efforts to resolve a conflict by that time. It’s no small change to fork over $435 to file a lawsuit in state court, or $435 to answer one, for that matter. However, filing a lawsuit can be a valuable first step in the next phase of resolving your conflict. Continue reading

How to Get Value from Your ERISA Mediation

How to Get Value from Your ERISA Mediation PDF

ERISA benefits litigation is by and large a streamlined form of litigation that involves an expeditious trial usually based on the administrative record, with no witnesses. Lawyers who do this kind of work are sensitive to the factual nuances of ERISA benefits cases and the risks posed by taking chances before the district or magistrate judge.

Most of these cases are either settled by the lawyers themselves or in mediation. The lawyers and parties are usually very well prepared, but it is usually the plaintiff’s first and probably only experience with the process. Therefore, the process must address the discomfort that the individual plaintiffs experience, even if the setting is much more informal than the courtroom. Continue reading

Mediator Sotomayor Expands Practice, Saves Litigants Time and Money

Mediator Sotomayor Expands Practice, Saves Litigants Time and Money PDF

With court and litigation costs rising to astronomical levels, and increasing delays in getting matters before a judge, Rande Sotomayor continues to offer mediation as a more economical and faster approach to the problem.

“With over 25 years of legal experience under my belt, my mediation practice is a welcome addition to the business community. People need to settle disputes in a reasonably efficient and cost-effective way,” notes Mrs. Sotomayor. Continue reading

What Is the Difference between Mediation and Arbitration?

What Is the Difference between Mediation and Arbitration PDF

People often ask me what the difference is between mediation and arbitration. Both are among the most common forms of alternative dispute resolution. These “alternatives” avoid the more expensive and time-consuming method of resolving disputes in court.

 

Mediation is an informal proceeding in which a third party neutral, the mediator, works with the parties, and their attorneys if they have them, to facilitate a settlement of the dispute. The mediator does not make any decisions about the case. Continue reading