I have conducted numerous mediations over the past twenty years, working with what used to be called the JASOP program in state court, and also serving as a member of the Central District Bankruptcy Court mediation panel, the Central District Court panel, and the Los Angeles County Superior Court panel. I also handle private mediations. In 2014 I served as president of the Southern California Mediation Association. I have taken over 200 hours of courses and seminars on mediation, and do a lot of reading and writing on the subject. I have been a practicing civil trial lawyer for more than thirty years, and continue to maintain an active trial practice, so I have a good sense of what parties are facing if they do not settle.
As should be the case with mediation, fees are negotiable, depending on the size and nature of the case. My standard rate is $225 per side per hour. Mediation sessions can also be scheduled for half-day or full-day sessions for a flat rate.
I tend to be more facilitative than evaluative, but I also believe in doing whatever is likely to work in a particular case. I encourage parties to talk to each other directly if possible, and I encourage open communication and the exchange of briefs prior to mediation, but I also understand the need for confidentiality in many cases. I think that listening is the essence of mediation. Allowing parties a chance to express and have their concerns heard and appreciated by the other side, is what creates an opportunity for resolution. I believe that the attorneys are an essential part of the process, and I encourage the parties to consider carefully their own attorney’s (as well as opposing counsel’s) evaluations of the case, as the parties’ attorneys are obviously more familiar with the applicable facts and law than I am.
Because of the extremely varied nature of my civil litigation practice, I have handled most kinds of civil litigation, and have represented both plaintiffs and defendants. Most of my practice involves commercial disputes, but I have also handled some personal injury cases. I have substantial familiarity with corporate and partnership disputes; commercial sales and other business transactions; intellectual property including trials of patent, trademark and copyright cases; employment law including most kinds of discrimination cases and wage and hour cases; bankruptcy litigation; real estate transactions including landlord-tenant and other property disputes; professional malpractice; and entertainment litigation. I have had some tangential relationships with family law and probate matters as well. I do not think it is essential in any event that a mediator have an intimate familiarity with the area of law involved in a particular case, but I do think it can save a lot of time if the mediator knows what the parties and their attorneys are talking about.
An arbitrator actually decides the case for the parties, using simplified rules and allowing very little recourse for the losing party. That means that the arbitrator usually will not reveal his thinking about the case in advance of decision, usually will not try to avoid a hearing, and need not strictly follow the law. A mediator assists the parties in resolving the case for themselves. A mediator may freely express his views, will keep information confidential, and can consider any information that the parties think is relevant or important.
Mediation works by allowing parties to understand the other side’s point of view, sometimes directly and sometimes filtered through the mediator. Mediation encourages parties to work together constructively to solve their common problem (the dispute). Mediation helps clarify the parties’ choices, so that they can fairly evaluate the costs and benefits of settlement vs. the costs and benefits of perpetuating the conflict. Mediation allows the parties to envision the possibility of putting their conflict behind them. Mediation provides clarity as to the costs and risks of each side’s alternatives. Once these goals are met, the parties are usually able to explore solutions. The groundwork must be laid properly for the negotiating phase to work, and the negotiating phase itself cannot be unduly rushed.
Nothing that is said in the course of a mediation may be admitted into court in the case being mediated. Nothing agreed to or admitted in mediation is enforceable unless the parties sign a written document indicating that their agreement is enforceable. The parties may also withhold information from the other side during the course of a mediation, but the ground rules for that need to be discussed with the mediator.
I wonder that myself sometimes, but I object to being characterized as a burnt-out litigator. I still maintain an active trial practice, and I still enjoy writing a brief, building a case, arguing a motion, or examining a witness, as much as any trial lawyer. (I am not quite as enthusiastic about discovery motions as I was years ago, however.) I still think there is an important place for trials in the system, and not all cases should be settled. But I came to the conclusion a long time ago that most litigation activity is wasteful and unproductive for the parties and most cases should be settled. I enjoy bringing the parties together to help them work out a better solution than either or both of them can achieve in court, and I am good at it.
I did a series of posts on the pros and cons of using various types of mediators. To summarize and over-generalize, judge mediators may be the best if the parties need an authority figure to tell them what to do. Non-lawyers may be best at dealing with psychological and other issues that may be preventing resolution. And lawyers may be best at relating to the parties’ concerns about litigation, and arguing each side’s case to the other side. But whatever the background of the mediator, they generally need to learn additional skills to be the best all-around mediator they can be. I enjoy doing mediation, not only for the satisfaction of solving problems for people, but also because mediation brings to bear all of the skills I have learned in more than 30 years of practicing law, plus it continually requires me to keep learning additional skills that are helpful for solving problems in many different contexts.
I generally use a combination of both, the length of which depends entirely on the case and the parties. I encourage participation in joint sessions, but I discourage their use for the purpose of practicing each side’s opening statement or closing argument. Instead we use joint sessions to share information and to enable each side to listen and better understand the perspective of the other. Another reason joint sessions can be productive is that they allow more efficient communication of information directly to the other side, rather than transmitting information through the mediator. But I have done mediations in which the parties never talk to each other directly, and I have also done mediations in which the parties remained in the same room throughout the entire process.
For some mediations, the rules may require a brief, but I am not fussy about timing or format. It is helpful to have some form of brief summary of the issues before the mediation, however. I also encourage the parties to exchange briefs prior to mediation, although it is not required. For more tips on mediation briefs, see this post.
All parties need to send a representative in person with full authority to settle the case, unless other arrangements have been made in advance with the consent of the mediator and the other parties.
Mediation is not trial, or even a rehearsal for trial. So it may not be the time to make opening statements or summarize expected testimony in support of each side’s position, especially if the other side is already familiar with this material. Instead, it is the time to work with the other side and the mediator to design a solution to the dispute that avoids going to trial. On the other hand, in order to reach such a solution, it is often necessary to lay out for the other side what might be expected to happen with the case if it does not settle. To do that, you may need to show the other side the documents and describe the evidence that supports your claims, if they have not already been exposed to or processed this information. Being prepared to support factual claims with well-organized charts and documents, and to support legal claims with citations, does not hurt, and may be essential to changing the perspective of the other side. (See my blog post on preparation.) Parties should also think about their negotiating strategy in advance. Not so much to agree on a “bottom line,” but instead to plan their moves in response to the other side’s moves, so as to obtain the maximum amount of concessions they can gain from the other side.