Attorney Negotiation Tactics – “Puffing” vs. Misrepresentation

California attorneys, and attorneys everywhere, must be aware of and avoid the dangerous pitfalls of overzealous representation. The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a proposed formal opinion regarding the following question: “When an attorney is engaged in negotiations on behalf of a client, what conduct constitutes permissible “puffing” and what conduct constitutes improper false statements of material fact?” The Committee interprets Rule 3- 700(B)(2) of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code sections 6068(b), (c), and (d), 6106 and 6128. Continue reading

Word to the Wise – Confidentiality Clauses in Settlement Agreements WILL Be Enforced!

Attention parents! When warning your kids not to expose private information on Facebook or other social media, remember that the same guidelines apply to YOU in many different contexts. As in, when you promise to keep something confidential, you had better do so, or pay the consequences – at least according to the District Court of Appeal of Florida in an opinion filed on February 26, 2014 in Gulliver Schools, Inc., etc., et al. v. Patrick Snay (Case No. 3D13-1952).

Patrick Snay reached a settlement of an employment discrimination lawsuit against his former employer, and the settlement agreement contained a detailed confidentiality provision, which read in part as follows: Continue reading

U.C. Davis Study Reveals How Civil Litigants Want to Resolve Their Lawsuits

With the elimination of state court ADR programs, the shrinking of available courtrooms for civil trials, and the consequent delay in getting cases to trial and resolution, California attorneys must analyze and counsel their clients about how to obtain faster resolution of their disputes.

University of California Davis law professor Donna Shestowsky conducted a multi-jurisdictional study of civil litigants’ attitudes – at the beginning of litigation – toward procedural options to resolve their disputes. In “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” 99 Iowa L. Rev. 637 (2014), Professor Shestowsky concludes that litigants prefer mediation to all other procedures except for the judge trial and the procedure where attorneys negotiate with clients present. As between mediation and non-binding arbitration, mediation was a clear favorite. Continue reading

Is Pre-Litigation Mediation Too Early?

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? Continue reading

How to Draft a Really Useful Mediation Brief

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. Continue reading

b2b – Commercial Mediation

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. Continue reading

Insurance Company that Withdraws Cumis – Triggering Reservation of Rights Need Not Continue to Pay Cumis Counsel’s Fees

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 Continue reading

Arbitration Agreement Is Enforceable in the Absence of Agreed Method or Alternative Options for Appointing Arbitrator

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. Continue reading

Practical Advice for Getting Results in Business Mediation

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. Continue reading

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

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

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

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

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

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

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

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

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?

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