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

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

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