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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Picture It Settled Wows the UK Legal Industry

The Legal Insider has given rave reviews to our friend Don Philbin's settlement application - Picture It Settled. Here's the LI's report on the LegalTech 2013 conference where Don wowed the audience (as usual).

I do have to report that I encountered an application that did indeed tame “Big Data”. My definition of the term is a significant collection of “bits” of information that just form an amorphous mass, unless you have specific tools to mine them.

One such implement was Picture It Settled from the eponymous software company run by Don Pilbin that helps skilled practitioners in the all-important end of arbitration, which is the single day where you try and negotiate a settlement without either side blowing the deal. Different people adopt varying strategies, some open proceedings quite early in the day to allow time for many rounds of bargaining, others play games of financial “chicken” in an attempt to ramrod through their offers at the last possible minute.

Don’s team analysed all the “rounds” of negotiation across all the different courts in the US, for all the different states/jurisdictions, for the different types of litigation, well over 10,000 cases. They also called in psychologists to look at the behaviours people adopt when bartering to and fro. All of this combines into an application where you set up the initial parameters of venue and arbitration type, and the highs and lows of the settlement figure. As the bids flow, you key in the value and the time they were made.

You start with a grid of 8 hours on the vertical axis and money along the horizontal line, after a couple of rounds of bidding you start to see a V extending down (over the next 50 negotiating moves) towards the end of the day with a “fuzzy” intersection around an area of probable agreement. Not a substitute for experience and knowledge, but an aid that shows you the parameters you could work within and increase, (or reduce) the final settlement without “blowing” the deal. Only for US at the moment, but we discussed the UK implications for settlement negotiation, in say the volume businesses.

Check out this video on Picture it Settled Lite below.

Negotiation Law Blog Lives On and On and On at The Library Of Congress

The LOC describes this archive as a “selective collection of authoritative sites” associated with law schools, research institutes, think tanks, and other expertise-based organizations. “These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international,” the LOC says.
Despite what the description says, several practitioner blogs, not affiliated with any school or organization, are included in the archive. Among them are Marc Mayerson’s now-defunct Insurance Scrawl, Howard Bashman’s How Appealing, Curacao lawyer Karel Frielink’s Karel’s Legal Blog, Victoria Pynchon’s Settle it Now Negotiation Blog, Scott Greenfield’s Simple Justice, Ken Lammer’s CrimLaw, Diane Levin’s Mediation Channel, and Jeff Beard’s LawTech Guru.
In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”

No matter the fact that the joy of blogging is in the . . . . blogging, it's gratifying to be recognized as having contributed something valuable to the expansion of the law into more collaborative practicies. That's why I'm thrilled to learn (h/t Don Philbin) that the Settle It Now Negotiation Law Blog has been archived in the Library of Congress.

As Robert Ambrogi writes today on his Law Sites Blog not yet archived by the LOC,

several practitioner blogs, not affiliated with any school or organization, are included in the archive. Among them are Marc Mayerson’s now-defunct Insurance Scrawl, Howard Bashman’s How Appealing, Curacao lawyer Karel Frielink’s Karel’s Legal Blog, Victoria Pynchon’s Settle it Now Negotiation Blog, Scott Greenfield’s Simple Justice, Ken Lammer’s CrimLaw, Diane Levin’s [sadly abandoned but fortunately archived] Mediation Channel, and Jeff Beard’s LawTech Guru.

In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”

"Studied for years to come."


The LOC describes the archived law blogs as a selective collection of authoritative sites associated with law schools, research institutes, think tanks, and other expertise-based organizations. 

Even sweeter but hilarious to anyone who survived "intro week" in law school. The dictate then was as follows: First you cite Harvard and Yale. Or as my Yalie husband would correct, Yale, then Harvard. After that, you took a trip through the legal Ivy League. Only if you were truly desperate did you cite, say, the Constitutional law professor at Chapman who is the only ultra-conservative voice against SCOTUS' recent Constitutiuonal stamp of approval on modernity (think Prop 8, DOMA).

I'll add links to all these other great legal blogs anon. In the meantime, click on Ambrogi's post for all the links. And thanks to my colleague, Don Philbin, for emailing me the link with a note of congratulations. His ADR Toolbox is must-read for all ADR practioners, most particularly those who appear before mediators and arbitrators. 

As Colin Powell said, the most important information to gather in international diplomatic negotiations is "the other guy's decision cycle." And Don is the smartest ADR practitioner in the room. Know his decision cycle and your facilitated negotiations will deliver more than you ever dreamed they could.

Negotiating The Cost of Maternity: Just the Facts

Facts without links taken from the American Way of Birth article in today's New York Times.

Negotiating Enforceable Employment Arbitration Agreements

Even so luminary a firm as O'Melveny has been smacked down by the courts (here, the Ninth Circuit) when trying to enforce employee arbitration agreements.  California lawyers would therefore be well-advised to read the opinion covered at the California Employment Law Report this week:  Arbitration Agreement Upheld Despite Employee's Argument It Was Not Mutual And Adhesive

Here's the clause:

I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.

This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable.  I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause.  But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result. 

The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.  

Blawg Review #234

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third

My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games [8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) [9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  [11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.


Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.


As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist)

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate [19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  [23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  [24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple JusticeCharon QC also weighs in on the ABA Legal Rebels project here.


Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was namedMartin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.

[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.

[17]          The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."

 “When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.

 (Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.


California Courts May Not Require Parties to "Negotiate in Good Faith"

Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith."  As the Court in Vidrio v. Hernandez (2d DCA) explained today:

In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.

In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.

I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119.  Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions.  Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is to provide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.  


Pursuing a Divide and Conquer Negotiation Strategy? Don't Miss New California Case Law on Good Faith Settlement Findings

Challenges to good faith settlements that cut off the rights of non-settling defendants to seek indemnification and contribution from settling defendants are nearly always doomed to failure.  Trial courts are understandably eager to clear their dockets and there's no docket-clean-up pitcher like the first defendant to settle.  Deny the motion and bring a settled defendant and his trial-ready resources back in to the litigation when the first defendant-domino has just successfully toppled over?   Not likely, my friend. Not in the trial court at any rate.

These motions are so difficult to oppose that I've seen a target defendant threaten a marginal player (my client) with sanctions just for challenging the target's very low six-figure settlement in an eight-figure antitrust action.

It looks like low value settlements got just a little bit harder to defend yesterday when the Second District Court of Appeal reversed a trial court's good faith settlement finding in  Long Beach Memorial Medical Center v. Superior Court (Conners).

Best quotation:  "The hospital contends that the physicians‟ $200,000 settlement -- representing 2 percent of plaintiffs‟ $10 million damages estimate -- was so far out of the “ballpark” it was not even in the parking lot."  With a first runner-up to "If section 877.6 is to serve the ends of justice, it must prevent a party from purchasing protection from its indemnification obligation at bargain-basement prices."

The Court of Appeal relied upon the following "facts" in finding that the trial court abused its considerable discretion in granting a good faith motion to defendant physicians in light of defendant hospital's opposition.

  • payment of $200,000 in settlement for a $10 million claim, which the appellate court found to be "wholly disproportionate."  As the Court opined "[e]ven a slight probability of liability on [the settling doctor's] part would warrant a contribution more significant than 2 percent."
  •  the "evidence" supporting the court's finding that the settling physician's probable fault was "not de minimis,"  which appears to have been based upon Plaintiff's attorney's fault analysis (not generally known for its unbiased nature) and the physicians' counsel's candid (?) suggestion that his clients' contribution to a global settlement might be in the range of $1.5 million;
  • the availability of $2 million in coverage, which "militated against a good faith determination" because the settlement constituted only 10% of available policy limits [carrier alert here!];
  • the non-settling Hospital's contention that the physicians and their attorneys engaged in "bad faith tactics" during two mediation sessions -- a factor the appellate court acknowledged it was barred by mediation confidentiality from considering -- but which it neatly avoided by concentrating on post-mediation negotiations; /*
  • the timing of the physicians' settlement offer, which suggested to the appellate court that their "reason for entering into the settlement with plaintiffs was to cut off the hospital's . . .  right to indemnity from the physicians" (I thought that was a legitimate reason to settle litigation but see the Court's citation to Mattco Forge, stating that when a defendant  “enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” Mattco, supra (emphasis added); and,
  • a consideration I've never seen defeat a good faith motion before - that a settlment "dictated by the tactical advantage of removing a deep-pocket defendant . . . is not made in 'good faith' consideration of the relevant liability of all parties. . . ." (leading to the question whether we're now required to consider the interests of clients other than our own in entering into a settlement agreement on a contested claim)

If this case isn't depublished (an unfortunate California practice) or taken up for review, it will bear re-reading and deeper thinking about the stategy and tactics of breaking away from the mob to cut a separate deal beneficial to one's own client without "consider[ing] . . the relevant liability of all parties . . . "

Comments welcome!!



*/  This is a good place to note the importance of either indicating in the parties' post-mediation written negotiations that the mediation is continuing (hence the communications remain absolutely protected) or that the mediation has concluded (hence bringing those post-mediation settlement negotiations outside the scope of the strictly enforced mediation confidentiality restrictions).

No Review of Discretionary Stay by Arbitrator

Thanks LACBA for the daily case reports!

Trial court lacked authority to review discretionary, prehearing order by arbitrator, who imposed stay on arbitration of dispute concerning uninsured motorist policy until plaintiff--who was driving on work-related business in company car provided by employer when rear ended--pursued workers’ compensation benefits in light of Insurance Code Sec. 11580.2.

Briggs v. Resolution Remedies

Oops!! $6,000 in Attorney Sanctions for Failure to Notify Appellate Court Case Had Settled

Nothing irritates a court more than doing unnecessary work because counsel fails to comply with the local rules.  Here in Huschke v. Slater, the Court was sufficiently put out to order that the attorney "personally" pay the sanctions ("don't even think about asking your client to pay, buster!") and to order the opinion published for all the world to see.

Like that pesky appeal where the Court called my client a "school yard bully" for failing to stipulate to the genuine nature of the insurance policies at issue (and no I am not providing a link to that one).  Ordered it published too. Grrrrrrrr.

I'm filing this one under "Advice to Young Lawyers" in the hope that they do not have to learn how to ignite the appellate court's wrath the hard way.

Hey!  Let's all be careful out there!

Thottam Confidentiality: Just Follow the Statute; Don't Get Fancy













From the Los Angeles Daily Journal

November 21, 2008


LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.

Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.

 A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).

Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.

But the high court Wednesday denied review. 

Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case. 

"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.

The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.

"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.

Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.

Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.

Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."

Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.

The only difference: "There'll be one more piece of evidence," Kaplan said.


Will Dems Ban Mandatory Consumer/Employee Arbitration?

This just in on the same day I attended the AAA's Expedited Case training.  As an ADR practitioner I favor party "choice and voice" in all dispute resolution venues, meaning that I frown on adhesion contracts of all types, including those that are unfairly imposed upon consumers and employees.  The devil in the detail, of course, is the meaning of the term "unfairly."  I am unfamiliar with the proposed law subject of this article and neither support nor oppose it.  Just keeping my readers informed.

Democratic Party control could ban mandatory arbitration, expert says


Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

Click photo to enlarge
Photo by L. Brian Stauffer
Michael LeRoy, a professor of law and of labor and employment relations, says Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge.
CHAMPAIGN, Ill. — Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge, a University of Illinois labor law expert says.

Michael LeRoy predicts a bill sponsored by Democrats that would bar companies from imposing arbitration will likely be approved next year when Democrats take over the White House and add to their majorities in Congress.

The measure, introduced last year but stalled by the prospect of a Bush administration veto, would halt a shift that has grown since a 1991 U.S. Supreme Court ruling allowing firms to require arbitration rather than courts to resolve disputes, he said.
For full article click here.

Here's the summary of the bill courtesy of the Consumerist:

Arbitration Fairness Act of 2007 - Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of: (1) an employment, consumer, or franchise dispute, or (2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.

Declares, further, that the validity or enforceability of an agreement to arbitrate shall be determined by a court, under federal law, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.

Exempts arbitration provisions in collective bargaining agreements from this Act.

Fact that Class Settlement Was Reached in Mediation Does Not Prevent Objectors from Discovering Factual Basis for Mediated Terms

Excerpts from Kullar v. Foot Locker Retail, Inc. below.  Comment will follow.

[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.

[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 157-158.)

Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.

                           *                           *                      *

Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.

We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.

By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.

FEHA Attorney Fees Unavailable Under Cal Civil Code 998

Civil Procedure Sec. 998--which permits a defendant to shift costs to plaintiff if plaintiff rejects a settlement offer and then fails to obtain a more favorable judgment--does not eliminate substantive requirements for awarding attorney fees to a prevailing Fair Employment and Housing Act defendant; prevailing defendant in FEHA action is only entitled to recover fees if plaintiff rejects defendant's settlement offer, fails to obtain a more favorable judgment, and plaintiff's action was without any legal or factual foundation. Mangano v. Verity, Inc.

California Courts Let You Have it Your Way: Arbitrate and Appeal the Award

(while we're walking down memory lane anyway, "Have It Your Way" from 1976) 

When I ask litigators why they don't choose arbitration over litigation before unpredictable judges in a crowded court, their answer invariably is "because I can't appeal the ruling."   We cling to appellate review even though we appeal fewer cases than we try -- which is a very small percentage of our case load as it is. 

Not surprising, however, we litigators, as Max Kennerly recently noted, tend to be risk-averse, not risk-embracing (h/t Blawg Review # 174).  To give up that one last chance for our client to be vindicated and for us to be triumphant is generally just too much for us. 

Now we can have our arbitration cake and and follow it up with appellate ice cream.  Yesterday, the California Supreme Court in Cable Connection, Inc. v. DirecTV  held that arbitrating parties' agreement to seek appellate review of legal errors is enforceable in California State Courts despite its uneforceability in federal court.  As the Supreme Court explained:

On the first question, the United States Supreme Court has held that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) does not permit the parties to expand the scope of review by agreement. (Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) __ U.S. __ [128 S.Ct. 1396, 1404-1405] (Hall Street).)

However, the high court went on to say that federal law does not preclude “more searching review based on authority outside the [federal] statute,” including “state statutory or common law.” (Id. at p. __ [128 S.Ct. at p. 1406].) In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 (Moncharsh), this court reviewed the history of the California Arbitration Act (CAA; Code Civ. Proc., § 1280 et seq.).

We adhere to our holding in Moncharsh, recognizing that contractual limitations may  alter the usual scope of review.

The California rule is that the parties may obtain judicial review of the merits by express agreement. There is a statutory as well as a contractual basis for this rule; one of the grounds for review of an arbitration award is that “[t]he arbitrators  exceeded their powers.”  (§§ 1286.2, subd. (a)(4), 1286.6, subd. (b).)

Here, the parties agreed that “[t]he arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.” This contract provision is enforceable under state law, and we reverse the contrary ruling of the Court of Appeal.

Don't Like Mediation Confidentiality? Hold a Settlement Conference Instead



AUGUST 25, 2008 | FORUM

If You Know the Case Law, Litigation Doesn't Have to be Robotic

By Victoria Pynchon 

Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).

Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.

"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."

Why, indeed?

If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.

What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.

What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a "good faith" hearing.

Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.
If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.

Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?

Not so much.

If you have a DJ subscription, continue reading here.


Enforcement of Mediated Settlement Agreements in California - Get more Legal Forms

Trap for the Unwary in Appointment of Referees

In some cases -- complex construction litigation comes to mind -- fees for a referee can be one of the most substantial costs of litigation.  Yesterday, the Fifth District California Court of Appeal held that a stipulated judicial reference agreement under CCP 638 precludes recovery of prevailing party's fifty percent share of the referee's fees as an item of costs if the parties have agreed in the reference stipulation to split the referee fees.

Solution?  Include in your agreement a provision indicating that the prevailing party in the litigation will be entitled to recover its half of the referee's fees.

See Carr Business Enterprises, Inc. v. City of Chowchilla with gratitude to the Met News for briefing these cases for us and to LACBA for putting them in our in-box every evening.


Florida Insurance Carriers Barred from Requiring Policy Holders to Arbitrate Disputes

Florida Insurance Commissioner Praises Mandatory Arbitration Ban

Thanks to the LexisNexis Insurance Center Staff

TALLAHASSEE, Fla. -- Florida Insurance Commissioner Kevin McCarty welcomed the First District Court of Appeal's decision affirming the Office of Insurance Regulation's denial of United Insurance Company of America's request to include a mandatory arbitration clause in its life insurance contracts.

Arbitration would have forced disgruntled policyholders to bypass the legal system to settle disagreements. United appealed OIR's action and the court affirmed the denial.

"Policyholders have fewer rights and constitutional protections under the more restrictive arbitration process than they would have in a civil court proceeding," said McCarty. "I'm pleased that the Court made it clear that Florida consumers should not be shut out of the traditional legal system to press their grievances against insurance companies."

Although United argued that federal arbitration law superseded the Florida law that allows policyholders to use the courts for contractual disputes, the Court stated that the matter "specifically relates to the business of insurance" and was, therefore, exempt from being superseded by federal law

Employer Did Not Waive Right to Arbitrate by Telling Employee His Election to Arbitrate Was Premature

Not an earth-shaking opinion from the Ninth Circuit but a good one to keep around the next time you want to claim -- or resist a claim of -- waiver.  Thanks to the Met News for summarizing these opinions on a daily basis and to LACBA for putting them into my email box every night. 

What on earth would we do without them?

Where employment-related dispute arose between employer and employee who had executed employment agreement containing a mandatory arbitration clause, and employee wrote letter requesting arbitration to which employer responded by telling employee that it did not consider his claim ripe for arbitration, district court's order—after employee's termination—denying employer's motion to compel arbitration on ground that employer previously breached its agreement and waived right to arbitrate disputes was error because employee did not properly initiate arbitration under agreement's terms; district court improperly concluded employer waived arbitration where it was debatable whether employer acted inconsistently with right to arbitrate, employer initiated arbitration immediately upon learning of suit, and employer's actions did not prejudice employee.

Cox v. Ocean View Hotel Corporation - filed July 23, 2008

Missouri Employers Can't Lock Employees in Arbitration Chains

Thanks to ContractsProf Blog for the following: 

In late June, the Missouri Court of Appeals addressed the legal enforceability of a program adopted by Hallmark requiring employees to arbitrate employment disputes. The court held that Hallmark's ADR program did not constitute a contract and that there was no consideration to bind the employees to the promise to arbitrate claims.

The employer's arguments in favor of enforcement in this case were very much like those argued by O'Melveny & Myers here in California with the same result in the Ninth Circuit  --  the employee was not bound by an agreement by continuing to work after all employees were notified that their continued work for the company would constitute consent to being bound by the arbitration provision.

Check out the ContractsProf Blog analysis here.  We particularly like this comment by the Court:

The idea that an employer can create any legal contract it dares to create (based on a condition of at-will employment) cannot be sustained upon reflection. Imagine, for instance, an employer publishing a memo to employees stating that:

Anyone who continues to work for us through next Monday will be conclusively deemed to have agreed, as a condition of remaining in our employ through that date, that you will contribute twenty dollars per month over the next ten years to the National Association of Manufacturers (NAM), whether or not you remain employed here during that time. If you do not agree, you will need to resign your employment immediately, because by continuing to work, you are agreeing.

Yes, I did see the Beatles play the Hollywood Bowl in 1964, with an emphasis on SEE -- couldn't hear a thing!  Just a little nostalgia for my boomer readers.

Simmons v. Ghaderi: When the Legislature Said Mediation Was Confidential, It Meant What it Said

Today, the Supreme Court handed down a unanimous ruling in the long-awaited Simmons v. Ghaderi case about which I've commented on many occasions -- both on the importance of the confidentiality laws the Supreme Court held were air-tight today and on the process itself as a common example of a failed mediation proceeding.

Highlights from the opinion:

  • "The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process."
  • [T]he legislative history of the mediation confidentiality statutes as a whole reflects a desire that section 1115 et seq. be strictly followed in the interest of efficiency. By laying down clear rules, the Legislature intended to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation. (citation omitted).  Allowing courts to craft judicial exceptions to the statutory rules would run counter to that intent."
  • In Foxgate,  we reasoned we "were bound to respect the Legislature’s policy choice to protect mediation confidentiality rather than create a procedure that encouraged good faith participation in mediation. Thus, we held that evidence of a party’s bad faith during the mediation may not be admitted or considered." 

Here's the appellate decision that was reversed on nearly every ground raised in Justice Aldrich's compellingly well-reasoned dissent.

Here are our previous commentaries:

Take Steps to Ensure Mediation Agreements Can Be Enforced (co-authored by local arbitrator and mediator Deborah Rothman, first published in the Daily Journal)

You Say Waiver, I Say Estoppel, Let's Call the Whole Thing Wrong -- Another Look at Simmons v. Ghaderi  

If I Settle, It Will Mean that I Killed Her -- Anatomy of a Failed Medical Malpractice Mediation, at the National Institute for Advanced Conflict Resolution

Here's a veiw that opposes my own -- Kirk Pasich Replies:  the Mediation Privilege and Bad Faith Carrier Conduct.

Even if They're Just Hoops to Jump Through ADR Clauses are Worth Getting Right

Bob Hunt over at Realty Times has a nice consumer-friendly article entitled Californa Court Holds That Mediation Provision "Means What It Says".  /*

As Hunt writes, 

The standard residential purchase contract in California is produced by the California Association of Realtors® (CAR). It contains two sections that are easy to overlook or to take as “boilerplate”, but that can be very important if things go awry between the parties. One of those sections deals with attorney fees, providing that, in the event of any proceeding between buyer and seller, the prevailing party shall be entitled to attorney fees and costs from the non-prevailing party. The attorney fee section contains an exception, however, and that exception is spelled out in the portion of the contract referring to mediation. There it is said that, if either party initiates an action “without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees… .” [my emphasis] /*

When Mr. Thrifty and I purchased our house in '02, we were presented with one of these form contracts.  I'm a lazy form contract signator myself.  Negotiation training or not, I generally assume these contracts are "take it or leave it" and I sign them accordingly.  /**

Not Mr. Thrifty.

"What's the procedure?"  I recall him pressing our real estate agent.    "When is the demand for mediation supposed to be made and how are the parties supposed to conduct it and what happens if the parties can't reach agreement on the mediator to conduct the process?"

He was having none of it. 

"I'm crossing it out," he said, as blue ink flowed over the mediation provision and our agent let out of small gasp of dismay.

By that time, everyone was so "bought in" to the sale, that Mr. Thrifty's effort to strike  the form language prevailed.  No mediation necessary in this household!

Beware of Form Contract Language

As Bob Hunt explains, the Lange Court gave the back of its hand to the contention that it was "too difficult" to make the required demand for mediation.  

“If the [sellers] could be found and served with a lawsuit by mail, they could have been sent a mediation demand by mail[,]” [held the Court]  All that the plaintiff had to do was attempt to mediate before he filed suit; and he didn't. Quoting a related case, the court noted that the mediation provision “means what it says and will be enforced.” 

Though it's not surprising to find bare bones ADR provisions in industry form contracts -- bones so bear that their meaning must be litigated -- defeating the purpose of the summary proceedings provided for -- it is surprising to find attorneys continuing to paste form contract language into their client's negotiated agreements.  This is particularly troublesome when what's at stake -- the attorneys' fees -- makes the difference between bringing litigation or not or settling litigation or not.

If it's worth putting a clause into your contract, it's worth spending the time to imagine what might happen if circumstances triggering that clause arise.  If you're practicing in a firm with both transactional and litigation attorneys, I highly recommend that the wordsmiths run the "standard" ADR, attorney fee, choice of law, and venue provisions by the litigators who have undoubtedly already tested these provisions in the fire of conflict.  You won't be sorry you did.       


*/  The case -- Lange v. Schilling -- was originally ordered not not to be published.  Had that Order stood, the case would not create precedent under California law.  As the reader of the linked opinion can see, however, it was subsequently ordered published and can be cited as authority. 

**/  The form contract language at issue reads as follows:

Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. . . . If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.

Insurers with Potential Coverage Must Personally Attend Mediation Sessions

Head's up insurance carriers and their counsel!

Noting the benefits of appellate mediation and the desirability of participants attending in person, a California appellate court warned insurers in Campagnone v. Enjoyable Pools & Spas that even the potential of coverage requires a representative with full settlement authority to attend court-ordered appellate mediations in person, unless excused in writing by the mediator. Further, the court warned parties and counsel that they may also face sanctions if they fail to notify insurers with potential coverage about appellate mediations. The court noted that California’s strict mediation confidentiality provisions prevent mediators from disclosing whether anyone fails to attend, but that an aggrieved party may do so in seeking sanctions from the court. The court withheld sanctions in this case only because no previous opinion had spelled out these requirements, even though the insurer was only liable for amounts in excess of $3 million and the judgment in the trial court was $2.4 million.

Campagnone v. Enjoyable Pools & Spas, No. C055050 (Cal. App.3d Dist., May 30, 2008)

Thanks to Keith Seat Mediation Newsletter for the case.

And thanks to arbitrator and mediator extraordinaire Deborah Rothman for passing this along to me.  (speaking of gender politics, Deborah graduated with the first class of women to be admitted to Yale University)

Dispute Resolution by Old White Men: Gender Prejudice Sinks Abriration Award

O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the  American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it." 

The Court opinion that triggered the headline and the recollections below is here.  The "executive summary" is as follows:  One of three arbitrators who cast the deciding vote on a plastic surgery malpractice case

  • failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.” 
  • The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
  • Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”

Back to My Own History as Descriptive of --  But No Excuse for -- My Own Biases

We all have biases that we hide from others and some that we successfully hide from ourselves.  

We live, I'm told, in a 200 year present.  That means that my early life affects your life today.  After all, I'm an old white woman, about whom you may well have biases.  If I sit on your arbitration panel, you're going to want to understand those biases.  That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.

  • the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
  • in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
  • women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."

  • it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • when I was in high school
  • when I  was practicing law (these all from the early '80s)
    • a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
    • a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
    • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
    • secretaries were allowed to refuse to be assigned to a woman attorney
    • the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues 
    • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"

I promise to work on my prejudices.  And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!

California Continues to Resist Preemptive Effect of Federal Arbitration Act

Just a quick note on a recent appellate case here holding that where the parties have agreed to conduct their arbitration in accordance with California law, the Federal Arbitration Act does not preempt state law on arbitrability.  

The case is Best Interiors, Inc. v. Millie and Severson, Inc., here.  This is a construction case.  As soon as I read it, I'll get back to you on whether there's anything of value to be said about drafting, enforcing or resisting the enforcement of arbitration clauses in construction contracts.   

The FAA Constrains Your Ability to Contract Your Own Arbitration Solution: Supreme Court Decides Hall v. Mattel

Here's the opinion.  Comment later.

Can't Compel Arbitration if You Deny the Contract's Existence

Check out California appellate attorney Greg May's post today -- A Dilemma for Some Defendants Who Seek to Arbitrate here.  Excerpt below.  

It’s a long-held rule in California that a defendant sued on a contract may recover attorney fees pursuant to a provision in the contract even if the defendant prevails on a theory that he was not a party to the contract or that the contract is nonexistent, inapplicable, invalid or unenforceable. The rule exists in order to further the purpose of Civil Code section 1717, which is to make unilateral fee provisions reciprocal. . . . . 

Consider now whether a similar rule should apply to arbitration provisions. . . . . Should a defendant be able to compel arbitration pursuant to a contractual arbitration provision in a contract alleged by plaintiff even if the defendant denies the existence of that contract?

The court of appeal says “no” in Brodke v. Alphatec Spine Inc., case no G038591 (4th Dist. Mar. 20, 2008). .......................

For the full post, click here.

Yet Another Arbitration Clause Bites the Dust

When we bought our house 6 years ago, Mr. Thrifty struck all ADR provisions from the sales contract.  He's come to respect ADR much more in the last few years.  Still, I believe he'd choose access to the justice system over its alternatives.

Though Mr. Thrifty -- a litigator -- was bold enough to alter a form contract, few other home buyers would be.  

Now it appears that the California courts will protect home buyers from arbitration agreements buried in the voluminous documents all home buyers sign when they purchase a house.  See Bruni v. Dideon, just decided by the Fourth Appellate District of California.  Summary below courtesy of the Metropolitan News-Enterprise

Where homebuyers alleged that arbitration clause was contained in preprinted and "voluminous" documents, there was no negotiation, they understood the documents were being presented to them on a "take it or leave it" basis, they [were] generally . . not familiar with real estate documents or with "legalese," were not told to read to read warranty--which contained arbitration provisions . . . .  and were not given enough time to read the warranty or any of the other documents [prior to signing, the] issue as to whether homebuyers knowingly agreed to arbitrate was subject to judicial determination regardless of provision requiring that issues regarding enforceability of arbitration clause be submitted to arbitration.

Where . . . plaintiffs had to accept arbitration provisions if they wanted to buy a house, [the]provisions were part of a preprinted form contract, any attempt to negotiate . . . . the terms of the warranty would have been fruitless, the provisions took up one page of a 30-page booklet that was buried in [a] "voluminous" stack of purchase and sale documents, and plaintiffs were never asked to read the arbitration provisions before signing, those provisions were adhesive and unconscionable, and trial court correctly exercised its discretion by refusing to enforce them.

Arbitrator Not Liable for Assault During Recess

Why do you think they call it recess?

When tempers flare to the boiling point, arbitrators who fail to prevent recess assaults are immune from suit according to the New Jersey appellate court, as detailed in this Law.com article, Arbitrator is Not Liable for Attorneys Alleged Assault here.  Excerpt below:

When fists fly at an arbitration proceeding, the arbitrator isn't liable for not averting the altercation, a New Jersey appeals court says in an interpretation of the model Arbitration Act.

The judges, in Malik v. Ruttenberg, A-6615-06, reversed a trial court's refusal to dismiss a suit charging an arbitrator knew of a lawyer's dangerous propensities yet did not remove him from the case, and an assault allegedly ensued when a recess was called.

The appeals court found that decisions relating to control of the arbitral forum are within the immunity accorded by the N.J. Arbitration Act, adopted from the model act devised by the National Conference of Commissioners on Uniform State Laws.

Eric Tuchman, the general counsel for the American Arbitration Association -- a defendant in the case -- says the ruling is the first in the nation to interpret the act's immunity provision.

The act has been adopted in 13 states, including New Jersey, and is under consideration in four others.

"Opinions like this really permit arbitrators and sponsoring organizations to preside over and administer cases in a way that is free and impartial," Tuchman says.

For remainder of article, click here.

And the Gutsy Arbitrator Award of the Decade Goes to . . . .

. . . the Honorable Sam Cianchetti, Los Angeles Superior Court Judge (ret.) for his decision awarding $8.4 million in punitive damages, for a total $9 million award, against Health Net In the Arbitration between Patsy Bates and Health Net, et al

Los Angeles Times article here and the opinion itself here.

UPDATE:  For coverage of this case within the industry see The National Underwriter post here.

Another Consumer Arbitration Agreement Bites the Dust

This one is Lowden v. T-Mobile USA decided today by the Ninth Circuit.

We conclude that the Washington State Supreme Court’s decision in Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile’s arbitration provision is substantively unconscionable and unenforceable under Washington state law, and that there is no federal preemption in light of our decision in Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976 (9th Cir. 2007).

Insurance Resolutions: Keep the Settlement Monies, Avoid the Release and Sue for Fraud

(right:  '94 quake damage)

Though I've participated (as co-mediator) in the settlement of some of these Northridge Earthquake cases, I'm going to let the insurance bloggers address the wisdom of this decision -- just sent down by the California Court of Appeal in Village Northridge Homeowners Association v. State Farm Fire and Casualty Co.

As the Court itself acknowledged, under its holding,   

a plaintiff could settle a disputed insurance claim, keep the money paid, and then sue for fraud (rather than on the released claim) if it was fraudulently induced to settle the claim by a misrepresentation of policy limits.

We must say we're surprised by this holding and imagine the insurance carriers are as well.  The "parade of horribles" raised by State Farm, however, was dismissed as exaggerated by the appellate court, stating that the

consequences of applying this principle are not dire. Indeed, to avoid them, the insurer need only avoid misrepresenting policy limits when it settles claims. We seriously doubt insureds who settle their claims can be expected thereafter to assert groundless claims of misrepresentation of policy limits on a routine basis.

Is this a case of bad facts making bad law?  Or am I missing something? 

I'd love to hear from Declarations and Exclusions blogger George Wallace on this one!  George?

Settlement Offer as to Claim No. 1 Admissible to Prove or Disprove Claim No. 2

Another reminder of the narrow scope of Evidence Code section 1152's protections has just come come down from California's Second District Court of Appeal in Zhou v. Unisource Worldwide, Inc. here

Before discussing the Zhou holding, we remind our readers that in California, at any rate, the differences in protections between mediated settlement communications (absolute protection from disclosure) and non-mediated settlement communications (limited protection) make it imperative that counsel clearly specify, in writing,  whether the settlement conference they are about to attend is a  "mediated" conference -- and hence protected by Evidence Code section 1119 -- or a "non-mediated" conference -- and hence protected only by Evidence Code section 1152.

Federal Practitioners should see the footnote below and read Irvine, California IP attorney Sheila Swaroop's excellent ABTL Newsletter article The Surprising Uses of Prior Settlement Negotiations under FRE 408 here.

Though I'm aware of no case law on the topic, I'll go so far as to say that an attorney's failure to make this distinction will likely be found to fall below the applicable standard of care in the event the client suffers harm as a result.  

The Zhou Holding

Briefly, Plaintiff, who was injured in two separate automobile accidents, sent the insurance carrier an offer to compromise -- which was just barely brought within section 1152's protections -- for Accident No. 2.  During the trial of Accident No. 1, the defense proferred into evidence the settlement offer made for Accident No. 2 to prove the invalidity of the claim arising from Accident No. 1. 

In holding that the trial court erroneously excluded that correspondence from evidence, the Court of Appeal explained:

[I]n this case Zhou’s letters to State Farm regarding his purported injuries
from the March 1, 2004 accident were not offered to disprove the merits of the claim under negotiation, but rather “to show the invalidity of a different claim.” *

The entire case is well worth reading as a refresher if you're about to send a settlement demand, attend an MSC or pursue mediation.


*   The Court also cites federal law to the same effect -- Broadcort Capital Corp. v. Summa Medical Corp. (10th Cir. 1992) 972 F.2d 1183, 1194 [federal rule barring admission of evidence relating to settlement discussions does not preclude evidence of settlement of different dispute; “the evidence was not admitted to prove the validity or amount of the ‘claim under negotiation’”]; Towerridge, Inc. v. T.A.O., Inc. (10th Cir. 1997) 111 F.3d 758, 770 [“[r]ule 408 does not require the
exclusion of evidence regarding the settlement of a claim different from the one litigated”].)

More Educated Tea Leaf Reading on Hall & Associates by Professor Sarah Cole at Indisputably.org

In her recent post Supreme Court Orders Additional Briefing in Hall Street, Moritz Law School Professor Professor Sarah Cole at Indisputably Dot Org worries that the Supreme Court might punt the issue squarely placed before it in Hall & Associates -- whether parties to an arbitration agreement may expand judicial review of arbitration awards -- and decide the issue on a narrow common law ground, thus creating more, rather than less, uncertainty for parties wishing to design the best conflict resolution vehicle for their particular dispute. 

(sorry for the run-on sentence grammarians)

The heart of Professor Cole's concerns is quoted below.  The questions from the Supreme Court giving rise to those concerns may be found in the linked post above.

(our earlier posts on the case -- which we referred to as the "Mattel" -- are here and here)

It may be that the[ Court is] considering whether substantive judicial review provisions contained in an agreement among parties transforms what the parties think is arbitration into a procedure governed by common law (contract law) rather than the FAA.

If that is the case, then the question becomes whether parties can ask courts to review their contracts on grounds that courts normally don’t use to review contracts. Then, the district court judge would have to look at whether he or she had authority to grant the parties’ request — in past cases, courts have used their inherent authority to grant or deny such non-traditional requests.

But, because courts’ inherent authority is discretionary, courts might reject the parties’ requests. That level of uncertainty might doom these kinds of agreements.

More Thoughts from a Labor Negotiator on the Hollywood Writers' Strike

(right:  Julia Louis-Dreyfus on the picket line)

When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.

Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.  

(for "live" WGA Strike Blogging from the Los Angeles Times, click here)

After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:

Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.

Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.

In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.

The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.

Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.

It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.

These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.

As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.

While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.

Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.

Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.

Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.

In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.

Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.



Some Great Thinking on the Mattel Case by My Personal Brain Trust

This post follows up yesterday's about questions asked by the Supreme Court Justices during oral argument in the Hall v. Mattel case.  For a more thorough analysis than I was capable of providing,  I put out a call to my arbitration law posse and was greatly rewarded by the following comments.

Eric van Ginkel writes from Amsterdam:

Courts and scholars have traditionally ignored the distinction between vacatur (as to which section 10 limits the grounds, and there should not be any additional, non-statutory grounds) and appeal, about which the FAA is silent (other than perhaps section 9 which conditions the confirmation of an award on whether the parties have agreed that judgment on the award can be entered, arguably leaving that until later if they have agreed on an appeal to a court or a panel of appeal Arbitrators).

Sadly, the petitioners have also ignored this distinction, so the chances are that the Supremes will come out against appeal. As I have pointed out in the past, the clearest example of appeal next to vacatur as two distinct remedies can be found in the English Arbitration Act of 1996

AAA arbitrator Jay McCauley, who teaches Arbitration Law at Pepperdine School of Law writes:

This case tests the limits of the power of contracting parties to curtail the power of their arbitrator. Section 10 of the Federal Arbitration Act (i.e., the provision stating the grounds for vacatur) already provides that an award may be vacated if the arbitrator exceeds his or her powers. The question before the Supreme Court is whether parties may contractually define those powers by specifying that the arbitrator exceeds them if he or she fails to base his or her decision on the law.

There appear to be five lines of argument supporting the proposition that such contracts should not be enforced:

1. Congress intended the grounds for vacatur to be limited to those expressly set forth in Section 10, and none of those permits vacatur based on the content of the award.

2. Part of the ethos of arbitration is that it shall be quick and efficient (not slow and accurate), regardless of what the contracting parties desire.

3. Contracting parties should not be able to dictate to courts what courts should do.

4. Allowing vacatur on the basis of the content of the award will put too big a burden on trial courts handling vacatur motions, who are not used to the reviewing function.

5. Judicial review is often not in the parties' interests. We need to prohibit review to save the parties from their own bad judgment.

I think each of these arguments is faulty. 

As to Argument 1: Congress expressly said Courts may vacate when the arbitrator exceeds his power.  It never prohibited the contracting parties from defining what those powers are. There is no reason to consider the four Section 10 grounds for vacatur as exclusive. As long ago as 1953, the Supreme Court itself added a content based non-statutory basis for vacatur ("manifest disregard of the law") without an excuse as great as we have here, i.e., that the parties asked for it.

The agreement at issue in Mattel calls for a deeper level of review than manifest disregard of the law. Nevertheless, the Supreme Court would be hard pressed to say that such a review would contravene Congressional intent.  The Court long ago broke that supposed barrier. In any event, what Congress said it intended was to put arbitration agreements "on the same footing" as all other agreements.  That should mean "carry out what the parties contracted for" so long as their contract is neither illegal nor contrary to public policy.

As to Argument 2: There is no ethos to Arbitration other than the ethos of parties' freedom to customize their own adjudication process in any way they see fit. There are many in the ADR community who think about, and advocate for, arbitration as if it were an institution that must conform to a Platonic ideal.  The largest arbitration provider in the world, the American Arbitration Association, filed an amicus brief in the Mattel case, arguing that the customized arbitration the parties contracted for in this case should not be permitted because, inter alia, it runs afoul of the ethos of arbitration (i.e., quick, efficient and un-litigation-like). I have no idea why AAA, a neutral provider, would put its oar in this water at all. Nor can I fathom why they did so to pull against the direction of contractual freedom.

As to Argument 3: It is the Courts that should not be able to dictate what they do or do not do. It is Congress that has that power.  And Congress already used that power to dictate to Courts what they should do in this instance: that is, "enforce the parties' agreement as written."

As to Argument 4: The best of the arguments against permitting the parties to include judicial review in their private dispute resolution process is the long recognized common law limitation on contractual freedom: impossibility or impracticability. The kind of judicial review called for here, however, is not onerous or novel. District courts have been conducting content based reviews of administrative decisions as a significant part of their ordinary duties since the 1930s. 

As to Argument 5: I am the first to admit that judicial review of an arbitration award is usually, maybe even almost always, a bad idea. But those who oppose enforcement of contracts calling for judicial review are saying something more: that it is always a bad idea, and that it is such a bad idea that parties themselves should not be able to decide for themselves just how bad an idea it is for them.

It turns out that this case is the very worst scenario for judicial paternalism. Not only were the parties sophisticated players engaged in a commercial dispute, they entered into the agreement after the dispute arose (i.e., it was a true "submission agreement"), so they had reason to know precisely what they were getting into.

Something extra to watch: Just as the U.S. Supreme Court is now reviewing the Mattel case, the California Supreme Court is reviewing the Crowell case.  The Crowell arbitration arose under the California Arbitration Act and raises the identical issue as that raised by Mattel.

But here is the real irony in California: One of the reasons trial courts are already experienced with vacating arbitration awards for legal error is that they have already been told to do so by the California Supreme Court in employment cases (Armendariz). They must do so even though the California vacatur statute (CCP section 1286.2) like the federal vacatur statute (FAA section 10), does not include legal error as a ground for vacatur.  

Under Armendariz, California courts are not permitted to enforce an arbitration agreement if it does not provide a mechanism for judicial review.  If California now prohibits private contracts requiring judicial review of commercial arbitration awards, it will be imposing two directly contrary limitations on contractual freedom: Parties may neither limit the power of commercial arbitrators (by requiring judicial review) nor expand the power of employment arbitrators (by failing to provide for judicial review).

Imposing both limitations would not be a contradiction -- they arise in different contexts. But such a decision would starkly elevate the policy of protecting employees over the policy in favor of the freedom to contract. That is, the California court would be saying that employee protection is a good enough reason to override all of the arguments against thejudicial review of arbitration awards, but freedom of contract is not.

Finally, AAA arbitrator Les J. Weinstein writes:

While some might argue that judicial review would add transparency to the arbitration process by opening up the private proceeding to public judicial review would fuel the notion of a tailored private system for the rich and powerful using public resources.

Suppose the parties contract for judicial review under seal; is that OK?

If we like contract so much, why not let the parties "rent" an appellate panel?  Maybe the Supreme Court will review arbitrations as well?

If we go down this road, we would need new rules as well as Congressional authority. 

Who will pay for this potential new burden on the appellate system?

I doubt that mere contract alone will cut it under the current law but I predicted a Gore victory and a Supreme Court abstention so what do I know?

There you have it.  Three lawyers.  Three very good opinions.  Don't you LOVE the law?

Supremes to Decide Whether Arbitrating Parties Can Agree to Judicial Review

(photo by Steve Rhodes)

Geek heaven!!  My two obscure specialties -- environmental insurance coverage and arbitration law -- have converged in a case to be decided by the U.S. Supreme Court this term.  To confirm my total nerd credentials, I give you the news not from the New York or L.A. times, but from Yahoo! News, excerpted with link below:

High Court Weighs Role of Judiciary in Arbitration Case Involving Toymaker Mattel

WASHINGTON (AP) -- The outcome of an environmental cleanup dispute now before the Supreme Court could determine the future of arbitration as an alternative to lawsuits.
Tens of thousands of disagreements in the business world are resolved through arbitration each year, a process often regarded by the business community as a cost-saving, time-saving substitute for going to court. 

The risk in arbitration is that the losing side cannot appeal to the judiciary except in limited circumstances. That's the subject of Supreme Court arguments on Wednesday.

The Supreme Court will consider whether the parties in arbitration can agree to take their cases to court for review of arbitration awards.

here's the link to the remainder of the article.

Aribitration Rises in Los Angeles Because of Mediation


Left, international commercial arbitrator, Eric Van Ginkel.

Right, AAA patent / commercial arbitrator, Les Weinstein.




The Los Angeles Legal Pad has been talking to our friend Michael Powell over at the AAA about the sixteen percent increase in the arbitrations in the greater Los Angeles area last year.

When asked "why the jump," Powell explained:  

The only thing we can put our fingers on is the increase in mediation.  We think all the attention put on ADR in California has made a difference in companies that are drafting contracts and including arbitration clauses.

The increase, Powell was reported as saying, was especially prevalent in the entertainment and health care industries.  

Getting Your Class Action Waiver Past the California Supreme Court Remains Challenging

(for our Canadian readers, our featured treatise is Litigating Conspiracy:  An Analysis of Competition Class Actions , Stephen G.A. Pitel, Ed.)

An excellent concise summary of Gentry v. Superior Court, where the California Supreme Court Questions Enforceability of Class Action Waiver on Public Policy Grounds is once again provided by the National Arbitration Forum, excerpt below.

By a 4-3 majority, the California Supreme Court reversed an order compelling arbitration and remanded the case to the trial court with instructions to use a multi-factor test in determining the enforceability of a class action waiver. The ultimate question for the trial court is whether class-wide proceedings would be “a significantly more effective practical means of vindicating the [statutory] rights” of the employees who belong to the putative class. Parties who prefer the simplicity of one-on-one arbitration should not be overly concerned by the majority holding because this decision has no application outside of the employment context.

For full text of NAF's summary, click here.

This pdf of the opinion comes to you courtesy of Jeffer Mangels Class Action Defense Blog with Jeffer's excellent case analysis from a defense perspective here.  

Another good and thorough analysis appears here.  Gentry v. Superior Court - California ruling on class action waiver in arbitration agreement.



It's not too late to join us and ALFA International for its Labor & Employment Practice Group Seminar entitled "Employer of the Year" or "the Office":  Which One Are You? at the Half Moon Bay Ritz-Carlton on October 3-5, 2007.

HOW COULD YOU RESIST? (photo:  Half Moon Bay Ritz-Carlton at right)

I'll be speaking with Joshua Frank, Senior Legal Counsel to DHL (moderated by James M. Peterson of San Diego's Higgs, Fletcher & Mack, LLP) on the Pro's and Con's of Employment Arbitration

You'll have to get up early for this one -- it's scheduled from 8:45-10:00 a.m. on October 3 -- but we promise you a lively debate and fresh perspectives on an issue that might make corporate and litigation counsel want to rip those arbitration clauses out of their and their clients' employment agreements.  Then again, you might just decide to rewrite those ADR Clauses altogether so that you get the best possible dispute resolution mechanism for your and your clients' work-force. 

Either way, the time is ripe for reconsidering and revising the way in which you and your clients handle disputes with their employees.



Cal Supremes Forbid Discovery of Reinsurance Information to Assist Settlement Efforts in Clergy Abuse Cases

(right:  12 Angry Men because this post will end up being about depositions, settlement and trial and not simply -- yawn -- reinsurance)

Business Insurance reported yesterday that the California Supreme Court has Shield[ed] Reinsurance Details in Abuse Case.  As B.I. wrote,

In Catholic Mutual Relief Society et al. vs. The Superior Court . . . , victims sought to learn whether the nonprofit entity, which administers self-insurance funds for more than 300 archdioceses and other Roman Catholic entities in the United States and Canada, could meet its policy obligation should they enter into a settlement with the Archdiocese of San Diego.

In 2004, a Los Angeles County trial court judge said the victims could seek reinsurance information . . . A state Court of Appeal . . . rul[ed] that California law authorizing limited discovery of a defendant’s insurance coverage does not authorize pretrial discovery of reinsurance agreements with a “nonparty” liability insurer.

On Monday, the California Supreme Court agreed. It found that discovery of reinsurance is allowed when a reinsurer’s policy functions “in the same way as a liability policy (fronting arrangement), or where the reinsurance agreement is itself the subject matter of the litigation at hand.”

I'd just been musing on this issue (really! -- listen, only nerds blog) because I think attorneys should use discovery as much as possible to settle litigation as to try it. 

Conducting Discovery to Settle the Case

I'm just back from vacation so I haven't yet read this Supreme Court opinion.  I have, however, fought the reinsurance issue more times than I care to remember.  I also once sought to discover the extent of a privately owned corporation's ability to pay a sizable judgment only to be thwarted by the rule that discovery must be relevant to the subject matter of the action (etc.)

Still, I recommend that counsel find creative ways to learn facts that will assist them in settling the case during depositions (where "background" questions receive less scrutiny than interrogatories).

What information pertinent to settlement is useful to obtain other than the ability to fund an award?  Plenty! but since I'm still on Hawaiian time and in an Hawaiian mind, I'll provide only a few -- let your own imagination make far longer lists than the following.

  1. The identity of those making the settlement decision is question number one, not only to assure that you have the proper parties at your first settlement conference, but also because -- as McElhaney recently suggested -- you want to "hip" corporate deciders to some of the dangers of proceeding that the company's attorneys might not have mentioned (or couldn't stress strongly enough).  
  2. Where the corporate entity is split into operating divisions, which division is going to take the "hit" if the case settles.
  3. Whether there are any corporate acquisitions or mergers on the horizon -- or any major upheavals in management -- that might suggest that the executive team green-lighting the litigation is on its way out and less litigation-friendly management about to come on the scene.
  4. Whether other litigation on this same issue, product, financial practice, etc. is pending, making the possibility of bad precedent an issue for any eventual settlement "team."

How can you obtain answers to these questions during a deposition when none of them are relevant to the subject matter of the action or likely to lead to the discovery of admissible evidence?  The same way you do everything else in your legal practice -- with chutzpah, imagination, creativity, preparation and sheer good luck.  

I'd innocently sprinkle most of these questions into the background portion of the deposition when opposing counsel is generally less attentive than during "substantive" questioning.  You can also get away with "it's just background, counsel" when s/he begins to awake with his/her morning latte.  If it's a big case with less experienced attorneys assigned to less important depositions, I'd first ask these questions of low level corporate representatives who might be, shall we say, under-represented. 

Then there's always simple dumb luck.  When I was a first year taking one of my first depositions, opposing counsel fell asleep after lunch!  He was snoring while his client innocently waited for me to continue questioning him as if this were a normal event!

I genuinely didn't know what to do. Could I legitimately and ethically continue to question my opponent's client in his "absence"?  I suppose a more experienced or aggressive attorney might have done so.  But because it just didn't seem right to me, I woke him up before continuing with my line of questioning. 

Some defenders, however, might just as well be asleep.  As I teach my NITA students, you can do that which you can (ethically) get away with in a deposition.  And that is quite a lot if you are a skillful poker player who doesn't let on that the questions you're asking might be strategically beneficial even though entirely irrelevant to the substance of the litigation.

It's the beginning of a new "school" year.  Go get 'em!

Comment on the New California Cell Phone Arbitration Rulings from Business Week

(pictured:  an overdressed 1985 Motorola Cell Phone from Bulletz of Knowledge post Dress the Elderly Cell Phone)

For the business, rather than a strictly legal, analysis of the recent Ninth Circuit and other California rulings on the unconscionability of consumer arbitration clauses, see the excerpt and link to Business Week's article on the issue below.

Cell-Phone Contract Disputes Heat Up -- Court rulings in California could lead to changes in dispute clauses in wireless contracts and fuel class actions against carriers by Olga Kharif 

Read almost any cell-phone contract and you'll discover that the longest passage deals with dispute resolution. While seemingly important matters like billing get only one paragraph, Verizon Wireless devotes six paragraphs to dispute resolution. At AT&T (T), the dispute section takes up 10 fat paragraphs and states: "You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action."

The small print keeps expanding in response to an influx of court cases—at least 10 of them in California over the past few years—questioning a wireless carrier's right to block consumers from suing or filing class-action claims. In late June a California appeals court reaffirmed a lower court's order that (T-Mobile USA) could not enforce a clause requiring arbitration of disputes with customers. And on Aug. 17, the U.S. Court of Appeals for the Ninth Circuit in California ruled that AT&T's prohibition against subscribers banding together in class actions, "is unconscionable, and, thus, unenforceable."

Click here for the remainder of the article.

Federal Legislation Introduced to Bar Pre-Dispute Arbitration Provisions in Consumer Contracts

According to the ABA Journal Law News two Democratic lawmakers have introduced legislation that would prevent the inclusion of mandatory arbitration clauses in consumer contracts as well as those contracts implicating the consumer's civil rights. 

Though the parties could still agree to arbitrate their disputes after they arise, the bill would make unenforceable pre-dispute arbitration provisions within the scope of the legislation.  Article here and except below:

Two Democratic lawmakers have introduced legislation that would bar enforcement of some mandatory arbitration agreements.

The Arbitration Fairness Act would bar mandatory arbitration agreements involving employment, consumer rights, franchises or civil rights, according to a press release.

Agreements to arbitrate in these areas could be made after a dispute arises, but not before.

The law is designed to prevent consumers from being forced into arbitration.

To continue reading, click here.

Arbitration of Securities Disputes

(click on image to see consumer law attorneys Horwitz, Horwitz & Associates)

Financial Week reports today in SEC and Congress gang up on arbitration that "[l]egislation in Congress would block mandatory arbitration clauses" in all instances.  As the article notes,

Bills introduced by Sen. Russ Feingold (D-Wis.) and Rep. Hank Johnson (D-Ga.) would make pre-dispute arbitration agreements invalid and unenforceable. Mr. Johnson called mandatory arbitration an “albatross” for investors. “Despite what companies may say, it is not more affordable than going to court,” he said.

Zach Lowe, a spokesman for Mr. Feingold, said the legislation reflected concern over a push in the corporate world to allow mandatory arbitration and the overuse of such clauses in broker-dealer contracts. The Senate bill said that mandatory arbitration “undermines the development of public law for civil rights and consumer rights because there is no meaningful judicial review of arbitrators’ decisions.”

This legislation, if enacted, would affect so many powerful corporate instances that I wouldn't hold my breath for its passage any time during this century.  Still, it will be interesting to follow the debate.  

As I've often said here, I favor negotiated agreements, not obligations imposed by a party with superior bargaining power on a take it or leave it basis.  This is particularly true in consumer contracts where the print is fine, located only on web sites and/or imposed in the middle of a contract term by way of notice contained in a consumer's bill.  

Because self-regulation often follows Congressional regulatory trial-balloons, the best  consumers can likely hope for will be increasing attempts by service providers of all stripes to make arbitration a genuine choice for its customers.

And while you're over at Horwitz, check out their blog, particularly this post on frivolous lawsuits (my own post on frivolous lawsuits can be found here).

The Arbitration of Canadian Consumer Contracts

(photo:  Cohdra at MorgueFile)

Friday the thirteenth was (temporary) bad luck for Canadian consumers.  I say temporary because Ontario and Quebec have forbidden mandatory arbitration clauses and class action waivers.  The Canadian Supreme Court in the two cases discussed below held that in the cases before it those statutes could not be applied retroactively.

Though no Canadian Law expert (I was hipped to the Dell opinion by my Canadian buddy Michael Webster of the Due Diligence and Misleading Advertising Blog) it appears that a Dell mandatory arbitration and class action waiver clause is not against Canadian public policy (referred to by the Court as not against "public order.")  See the Canadian "The Court" Blog's article, "Is the Class Action a Public Order Institution," excerpted below.

Ironically, when the Dell and Rogers cases are placed in a larger social context, the public’s interest in securing the class action as a vital aspect of the public justice system could hardly have been rendered clearer. The Rogers case received much less of the court’s attention, having been carried through on Dell’s slipstream; however it is the features of Rogers’ mandatory arbitration/class action waivers on its consumer contracts that highlight the hollowness of off-the-bench judicial laments about access to justice for ordinary Canadians.

Both cases turned on the sublimely procedural question of whether an arbitrator or a Quebec superior court judge should have first kick at the can in deciding whether a mandatory arbitration clause on a consumer contract was enforceable or not. Such clauses preclude consumers from pursuing corporations in any kind of court action, including class action.

In both Ontario and Quebec the question has been rendered moot by amendments to consumer protection legislation which prohibit such clauses, underlining the public order aspect of the class action.

Read the rest of the article here (emphasis added).

More on Arbitration Agreements in Cell Phone Contracts

(photo by Vilanova, MorgueFile)

In this federal case, the Ninth Circuit held that the addition of an arbitration clause to the cell phone service contract, imposed by way of the posting of a revised contract on its website with no pre-existing notice to its subscribers was unenforceable.  The class action plaintiffs were therefore not required to arbitrate their claims and the class action waiver (also imposed upon subscribers in this same manner) was unenforceable.  Douglas v. United States District Court for the Central District of California

Washington State High Court Refuses to Enforce Class Action Waivers in Cell Phone Contracts

from Slash Dot we learn that the Washington Supreme Court has held that

[c]lass action waivers included in cell phone companies' contracts with customers are invalid in Washington State because they violate the state's Consumer Protection Act . . . .

Five plaintiffs accused Cingular of overcharging customers between $1 and $40 per month in roaming and hidden charges.

Cingular had an arbitration clause that required individual arbitration and prohibited class action litigation or class action arbitration.

We keep track of these class action waivers in consumer contracts because they are always coupled with an arbitration clause and must therefore overcome the strong federal preference for arbitration and the Federal Arbitration Act's preemption of most state laws that might restrict a party's "right" to compel private binding dispute resolution. 

See our previous posts on Sprint's arbitration clause here and here.


Cinderella Loses to Step-Mother in Wrongful Death Case

(photo by Kim Sobanski

In apportioning wrongful death settlement proceeds among the plaintiffs under CCP 377.61, the Court is not limited to the evidence produced in the action nor that upon which defendant relied in caluclating the settlement sum.  The evidence in this case, however, did not  justify an allocation of settlement proceeds 90 percent to the daughter and 10 percent to her step-mother even though the daughter's witnesses testified that her father intended to divorce his wife.   

Corder v. Corder   2007 SOS 4351 

Another Arbitration Provision Bites the Dust

Greg May at the California Blog of Appeal writes Great Lawyers Can Write Unenforceable Arbitration Agreements. 

A little over a month ago, the Ninth Circuit ruled in Davis v. O’Melveny & Myers, case no. 04-56039 (9th Cir. May 14, 2007) that the arbitration provision in the employment contract of a prominent, powerful L.A.-based law firm was unenforceable. Not just unenforceable, but “shock the conscience” unenforceable. .  .  

Just as you’re asking yourself, “If a high-powered law firm can’t draft an enforceable arbitration provision for its own contracts, then who can?” comes Gatton v. T-Mobile USA, Inc., case no. A112082 (June 22, 2007), in which the arbitration provision in T-Mobile’s customer agreement gets similar treatment in California state court. The First District Court of Appeal holds that T-Mobile’s arbitration provision in its customer agreements is unenforceable because of the minimal degree of procedural unconscionability arising from its adhesive nature and the “high degree of unconscionability arising from the class action waiver.”

I’m going to go out on a limb and say that T-Mobile probably had pretty good lawyers draft its agreement, and that the lawyers who drafted the provision for O’Melveny were no slouches, either. Who will fall next?

Mediation Confidentiality Trumps Malpractice . . . Barely

by Michael D. Young, whose recently posted Mediation Gone Wild Document Repository Web Pages you absolutely MUST SEE!

Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California's strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to the law. Luckily, in the recently-penned decision in Wimsatt v. Superior Court (Kausch) (Cal. App. No. B196903), the appellate court fixed things up...although it was clearly not happy about it.

Wimsatt involves a legal malpractice action against a prominent plaintiff's personal injury firm. In the trial court, the former client and malpractice plaintiff claimed that the law firm "breached its fiduciary duty by significantly lowering [the client's] settlement demand without his knowledge or consent." The client claimed he first learned of this fact from the confidential mediation brief that was provided to the mediator. You can see the public policy conflict already, can't you?

In the malpractice action, the client reasonably enough wants to obtain and introduce the smoking gun mediation brief, the one on which his entire case rests. However, as California practitioners should know by now, there is a slight problem with the plaintiff's wish: Evidence Code Sections 1115 et seq., and in particular Section 1119. California is serious, and rightfully so, about protecting the very cornerstone of mediation -- confidentiality. Under Section 1119, no mediation communications, including mediation briefs, are admissible in court. This has been reaffirmed time and time again by the Supreme Court (go reread Foxgate and Rojas if you don't believe me).

So what happened in the Wimsatt case? According to the opinion, in the underlying personal injury lawsuit, the client's lawyer made a comment to the personal injury defense counsel that it might be more appropriate to discuss settlement in the $1.5 million range rather than the $3.5 million range they had been discussing before. Because of this comment, claimed the client, he was forced to settle his personal injury case at mediation for an amount that was much less than the case was worth. Despite agreeing to the mediated settlement, the client brought a malpractice claim against his attorneys claiming he could have done better if only....

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State and Federal Mediation Protections in "Bad Faith" Hearings

(photo:  Silence is Golden by Memme)

Just when you say the mediation privilege would prevent the parties from disclosing such matters as settlement authority and the activities of party representatives, along comes an out-of-state federal opinion that makes you glad you live and practice in California.

Although the District Court in Bauerlein v. Equity Residential Properties Management Corp.Slip Copy, 2007 WL 1521606D.Ariz.,2007.May 22, 2007 refused to award the costs of an unsuccessful mediation against parties whose representatives left the mediation "early" there was nary a word spoken about confidentiality of the proceedings.

Arizona and Federal Protections for Confidential Mediation Communications  

It's not that Arizona doesn't have such a privilege.  We understand that A.R.S. § 12-2238 recognizes as privileged and confidential "[c]ommunications made, materials created for or used and acts occurring during a mediation." (emphasis added).

Nor do the federal courts lack protections for mediation communications.  Under 28 U.S.C.A. § 652(d), mediations conducted pursuant to federal court ADR programs are required to be protected by local rules, which "provide for the confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications." 

Therefore, whether protected by federal or state law, you would have expected that the parties accused of conducting themselves in "bad faith' would have objected to the introduction into evidence of one or all of the following mediation communications and activities:  

  • the identity of carrier representatives attending;
  • when and why those representatives left the mediation; 
  • the mediator's or the parties' explanation of the reason for the representatives departures, i.e., because there was a "vast divergence of the estimates of the value of the claims"
  • why one party put no money whatsoever on the table (because it was essentially judgment proof as a Taiwanese corporation without any U.S. holdings")
  • the mediator's statement to at least one of the carrier representatives that the case would not settle "based on the parties' individual evaluations of the claims because they were too far apart and had too divergent estimates of the value of their claims"
  • the mediator's approval of the carrier representatives leaving the mediation so long as counsel was left with authority to settle the claims.

Mediator Predictions

I don't know what shocks me more.  That these disclosures were made with no objection or that the mediator "predicted" the case would not settle before the parties "officially" reached impasse.  These predictions invariably affect the negotiations and should be made rarely if at all.  

Just as importantly, attorneys mediating their disputes should familiarize themselves with the laws applicable to the confidentiality of the proceedings -- particularly when they're in federal court where the applicable law is not as certain as it is in the state courts.  See the following commentaries on the federal Northern District of California Olam opinion (largely disapproved in California) here and here.   

It's my experience that most attorneys are completely unaware of the scope and nature of the mediation privilege under which they are operating.  If we don't want this inexpensive "alternative" procedure to become a breeding ground for litigation over party mediation tactics, then we should make sure we learn, and follow, the applicable mediation protections, privileges and guidelines less we stumble into disclosures that need not be made.   See Disputing Irony, a Systematic Look at Litigation about Mediation

Sanctions for "Bad Faith" Failure to Attend Mediation?

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Thanks to Diana Skaggs of the Kentucky Divorce Law Journal for alerting us to the Kentucky Law Blog's post Court of Appeal Affirms Trial Court's Award of Mediation Fees for Party Failing to Attend

Here in California, and I suspect in many other states, the Court cannot sanction "bad faith" negotiations because all of the parties' communications at a mediation are confidential.

I've often had attorneys ask me, however, whether they can bring to the Court's attention the fact that a claims adjuster, for instance, did not "show" at the mediation.  Can't they seek sanctions for that "bad faith" they ask.    

This is the question the Ky Law Blog asks and answers today under Louisiana law as interpreted in a nonpublished appellate opinion, Sullivan v. Anderson.  In that case, writes attorney and blogger Michael Stevens,

the defendant's attorney . . . arranged for the date, time, location, and mediator and notifed the pro se litigant who did nothing.

[A]ffirming [the trial court] . . . a Jefferson Circuit Court . . . held that although a party was not obligated to attend the "agreed" upon mediation, he was obligated to notify the other side he would not attend so as not to waste the mediator's time. . . [The appellate court opined]

We agree with [the pro per plaintiff] Sullivan and the trial court that Sullivan was not obligated to attend the mediation since it was not ordered by the court. However, [defense counsel] did not have any reason to know that the parties had not agreed on mediation since Sullivan did not inform her that he did not agree to the arranged mediator and mediation date. [*]

 A Kentucky court “may invoke its inherent power to impose attorney's fees and related expenses on a party as a sanction for bad faith conduct, regardless of the existence of statutory authority or remedial rules.” (citations omitted).

The Parade of "Bad Faith" Mediation Horribles

Mr. Stevens justifiably marches out the following parade of horribles that this opinion could lead to, such as awards of sanctions when:   

    • the insurance defense lawyer shows up at mediation without the adjuster or the insured and rel[ies] upon the adjuster's attendance by telephone[;]
    • the adjuster in attendance . . . not hav[ing] settlement authority extending to the policy limits[;]
    • the adjuster ha[ving] to leave early[; and,]
    • the adjuster with higher authority [not being] available by phone, or . . . delays in contacting the adjuster by telephone[.]

Are Sanctions Available in California for "Bad Faith" Mediation Practices?

California's mediation privilege is codified in Evidence Code sections 1115 et seq.  As most California practitioners are well aware, our Supreme Court has strictly construed these provisions.     

Because Evidence Code section 1120 expressly exempts any "agreement to mediate a dispute" from the protections of section 1119, a California court could presumably sanction a party for failing to appear at an agreed upon (or court ordered) mediation.  

Here in California, however, an award of such sanctions presumably could not include all or part of the mediator's fee because our Supreme Court has held that a party may not be ordered to pay a private mediator in the first instance.     

Moreoever, a party''s mediation conduct, such as a defendant's failure to bring a claims adjuster or the plaintiff's attorneys failure to bring his client, would not likely subject either party to sanctions.  

Section  1119(c) prohibits a party from disclosing "[a]ll . . . negotiations . . by and between the participants in the course of a mediation or a mediation consultation."  Interpreting this section broadly and strictly as our Supreme Court requires would likely result in the denial of sanctions because the choice of individuals to represent party interests is an integral part of the "negotiation" between the parties.  **     

Finally, section 1119(a) most certainly forecloses an award of sanctions based upon offers made or not made during -- or authority possessed or not possessed at -- a mediation.  Those facts could only be learned as a result of something "said . . . for the purpose of, in the course of, or pursuant to a mediation" and therefore fall squarely within section 1119(a).    


**  We find this one of the strangest and most illogical formulations we've heard from any appellate court anytime, anywhere -- a dangerous one at that -- and contrary to the law of contracts.  Since when does an agreement exist when party A proposes X to party B, who does not respond?  Since when is an agreement formed when party B neither accepts nor rejects it?   

*** The American Heritage Dictionary (2000) defines the verb "to negotiate" to mean and include, inter alia, "[t]o arrange or settle by discussion and mutual agreement: negotiate a contract."    

9th Circuit: "No" to O'Melveny Dispute Resolution Plan

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When it comes to employment arbitration agreements, it seems like the more bases you try to cover, the less likely a Court is to enforce them.    

Even the highly respected Los Angeles-based international law firm of O'Melveny & Myers has proved itself unable to draft an employment arbitration agreement that satisfies California's procedural and substantive conscionability requirements.    

Just today, the Ninth Circuit Court of Appeal in Davis v. O'Melveny & Myers  held that the law firm's attempt to impose an arbitration agreement upon existing employees with a three-month notice period was both procedurally and substantively unconscionable.  (For a criticism of the opinion, click here).

In finding that O'Melveny's attempted imposition of the agreement on its employees was procedurally unconscionable, the Court stressed the firm's "overwhelming bargaining power" and the "take-it-or-leave-it" basis upon which the agreement was proffered.  Although the Court distinguished provisions that might permit an employee to negotiate a different deal, given its characterization of  O'Melveny's bargaining power, we don't imagine this Court would have read such a clause as anything other than illusory.      

As the Ninth Circuit stressed, however, a procedurally unconscionable agreement must be "analyzed in proportion to evidence of substantive unconscionability."  It thereupon went on to find four provisions substantively unconscionable:  the “notice,” confidentiality and, “business justification” provisions, as well as the limitation on initiation of administrative actions.

The challenged notice provision required the aggrieved employee to "give . . . notice of a Claim [within the year it arose] along with a demand for mediation" or it would be "lost forever."  Quoting Richards v. CH2M Hill, Inc., the Court held this provision substantively unconscionable because it would deprive the employee of the right to assert the "continuing violation doctrine available in FEHA suits" a benefit that flows only to the employer.  

The challenged confidentiality provision -- prohibiting mention of the mediation or arbitration "to anyone not directly involved" - was also found to be unduly favorable O'Melveny.  As the Court explained:

Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. . . It might even chill enforcement  of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.

The challenged exemption for alleged breaches of  confidentiality was also found to be unenforceable.  "As written," held the Court, the provision permitting a "non-mutual exception allowing [O'Melveny] a judicial remedy to protect confidential information" was “one-sided and thus substantively unconscionable.” 

Finally, the Court held that the agreement's preclusion of employee complaints to agencies charged with the well-being of California's citizens such as the Department of Labor, was contrary to public policy and therefore substantively unconscionable as a matter of law.  

There you have it.  One of the best law firms in the country was unable to draft an employment arbitration agreement that could pass public policy muster.  

Would anyone else like to give it a try?

Proving Up Your Mediated Settlement Agreement: More on Simmons v. Ghaderi

We've been following the case of Simmons v. Ghaderi since the opinion appeared in October of last year.  The case went up to the California Supreme Court for review in December '06. The issue, as defined by Dr. Ghaderi is:     

whether there can be an enforceable settlement agreement when all evidence upon which it is based is inadmissible under the mediation statutes. 

As our previous commentary on this case indicates, we believe this accurately states the matter at issue and the source of the lower court's error.   That commentary, along with a mediation analysis using the Simmons' facts as a hypothetical, can be found here, here and here.  

I'm supplying you with the reply brief only.  (and adding the recently posted CDRC Amicus Brief here)

Once upon a time (at least 20 years ago) a Superior Court Judge confided in me that if s/he were overwhelmed with work and facing a calendar call, s/he would read the reply brief only "because it contained all the arguments." 


This did considerably alter my briefing habits. 

Here the Reply covers most of the arguments in the Opening Brief and the responses to the Opposition, which I haven't seen.  If anyone wants to send it along to me, I'll post it too.


Arbitrator May Use Successive Awards to Finally Decide All Issues

Thank you to our friend Alicia Freundlich, a Straus LL.M candidate, for passing along this case summary copied verbatim from the Newsletter of the Business Law Section of the State Bar of California.  

(right)  More serious balloon popping by the ever popular Charles Fincher of LawComix.com, who every so graciously lets me use these fabulous lawyer cartoons for free.  Do support him by paying cold hard cash for a signed copy, or better yet, a custom-made print for your favorite partner, judge, client, administrator, legal assistant, or associate.


Roehl v. Ritchie

2007 DJDAR 1480, 2007 Cal App LEXIS 125  (Ct. App. 4TH Dist. 1/31/2007)

This case arose from a dispute between the sons of a decedent and his second wife over distribution of the estate. The dispute was arbitrated and the arbitrator issued an award on March 1, 2004 concerning most of the issues in controversy. Among other things, he ruled that the wife had a 75% interest in the decedent’s home and that the sons had a 25% interest, which should be distributed to them because the wife was still living in the home.. The arbitrator indicated that the home was valued at $575,000 based on a November 2003 appraisal which covered the home and some other assets. He ruled that the appraisal would be the basis for distribution “unless the trustee determines that changes will be needed…if…in light of new developments since [November 2003], a somewhat different distribution of assets would benefit the estate” and he offered to work with the trustee to ”review any questions he may have concerning the orders and findings made by the arbitrator”.

The wife died one week after the award was issued. The wife’s niece, her successor in interest, successfully moved to confirm the award and that decision was affirmed on appeal in an unpublished decision. While the appeal was pending, the trustee petitioned the arbitrator for instructions on several issues, including whether to value the home as of the time of the award or as of the time of the distribution of the estate assets. In October 2005, the arbitrator issued a second award in which he, inter alia, valued the home at $1,050,000. Because this would lead to a larger distribution to the sons, the wife’s niece opposed confirmation of the award on the ground that this was a correction or amendment of the original award and thus beyond the arbitrator’s power because it occurred long after the time allowed to correct or amend.

The trial court confirmed the award, the niece appealed, and the Court of Appeal affirmed. It ruled that the arbitrator, by allowing for an opportunity by the trustee to amend the valuation, plainly left the matter of the value of the home up for future consideration if the trustee determined that changes were needed.

Note: It can sometimes be difficult for a party to discern whether an arbitrator is correcting an award, amending it, or issuing an incremental or successive award and that is what happened in this case. Code of Civil Procedure 1284 provides that a party must apply to the arbitrator for correction of an award no later than ten days after service of a signed copy of the award on the applicant, other parties must object within ten days after the application is delivered or mailed to them, and the arbitrator must issue any corrected award not later than thirty days after service of a signed copy of the award on the applicant.

But, in Delaney v. Dahl, 99 Cal App 4th 647, 659 (2002), the Court of Appeal held that an arbitrator may amend the award at any time prior to confirmation of the award so long as the amendment is consistent with other findings on the merits of the controversy and does not cause demonstrable prejudice to the interests of a party. And in Hightower v Superior Court, 86 Cal App 4th 1415, 1431 (2001), the Court of Appeal affirmed an arbitrator’s ability to use “a multiple incremental or successive award process as a means, in an appropriate case, of finally deciding all submitted issues”.

(emphasis my own)

Proposed Legislation Prohibiting Arbitration for Credit Counselor Agreements


Thanks to the National Arbitration Forum for this update on proposed legislation governing debt settlement and management service providers and credit counselors.

Verbatim:  Enacts the Uniform Debt Settlement Services Act, the Debt Management Act, and the Credit Counselors Law to provide for the licensure and regulation of providers of debt settlement and debt management services. Relating to arbitration, the bill states:

 Except as permitted by the California Arbitration Act (Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure), [the agreement shall not] contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than as provided in this division.

The bill would also forbid agreements from containing a choice of law provision other than California or applicable federal law.

Arbitration gurus?  How would this square with Greentree, etc.?

Walking on Eggs: Retiring Judges and ADR Services

This is taken straight from the Met News.  I will read this case and provide my analysis at the beginning of the coming week.

Where it was discovered after arbitration that the judge who granted order compelling arbitration had, prior to granting such order, engaged in discussions concerning possible employment as a dispute resolution neutral, it was proper to disqualify judge who granted the order compelling arbitration and vacate that order, but it was premature to vacate arbitration award. Where order compelling arbitration is void because judge was disqualified from granting it but is not set aside until after arbitration is concluded, award may stand if newly assigned judge makes a de novo determination that the parties were contractually bound to arbitrate, that acts of disqualified judge did not taint the arbitration, and that no other grounds exist to vacate the award.

Rossco Holdings v. Bank of America


Maryland Encourages Lawyers to Emphasize ADR




by Justin Kelly, ADRWorld.com

Maryland's highest court has approved an amendment to the state's Rules of Procedure that encourages lawyers to inform clients of alternative dispute resolution options when a new case is likely to be headed to court.

[T] Hon. Joseph F. Murphy, Jr. . . . said that the change would "highlight for counsel what they should be doing if ADR could work in their case," explaining . . . . the comment . . . that "where ADR is appropriate, lawyers should advise their clients of that fact." 

                                               *                             *                          *

Rule 2.1, which addresses the lawyer's role as a counselor, states, "In representing a client, a lawyer should exercise independent judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."

                                          *                                  *                                        *

The amendment adds the following new sentence to Comment 5: "[W]hen a matter is likely to involve litigation, and in the opinion of the lawyer, one or more forms of alternative dispute resolution are reasonable alternatives to litigation, the lawyer should advise the client about those reasonable alternatives." 

"The amended Comment is intended to encourage informed discourse between the lawyer and client whenever ADR may be an appropriate option," the Reporter's Note says.

An earlier proposal to amend Comment 5 had suggested requiring lawyers to inform clients about ADR options. But a mandatory requirement was dropped out of concern that it would lead to litigation by clients against their attorneys.

Murphy noted that Comment 5 says that attorneys "should advise," instead of "shall advise," and that this was a "compromise." He said that as revised, Comment 5 imposes no "automatic" requirement to inform clients about ADR options.

Some other states have ADR-related provisions in their rules of professional conduct. Vermont has the "shall advise" language, while Alaska, Colorado, Hawaii, Massachusetts, Tennessee, and Virginia have the "should advise" language.

The change in Comment 5 will take effect July 1, 2007.

More New Law on the Enforcement of Mediated Settlement Agreements

Appellate opinions concerning the enforceability of mediated settlement agreements are coming fast and furious.

If you haven't prepared your form term sheets and memoranda of understanding by now,  you might end up litigating the settlement whose purpose it was to stop the litigation. 

Oh the irony!    

Today's case Irvine v. Regents of University of California (4th Dist. 2007) was decided on a narrow procedural ground, leaving at large the questions of fraud, duress and mistake alleged by the Plaintiff as a bar to enforcement of her mediated settlement agreement.

The narrow issue here was whether a party could be excused from meeting the deadlines imposed by California Rule of Court 3.1385 simply by asserting that the challegned settlement agreement was uneforceable. 

The Irvine Court, reversing the trial court's Rule 3.1385 dismissal, answered the question in the affirmative, explaining: 

The only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list. By alleging a dispute over whether the parties reached a binding settlement, plaintiff demonstrated good cause to restore the case to the civil active list. In reaching this conclusion, we have not considered whether any of plaintiff's contentions have merit.

There you have it.  Now the parties will be litigating the compromise they reached to avoid litigation.  Don't let this happen to you.  Start (but do not finish) here, where I have provided articles and case law bearing upon the enforceability of mediated settlement agreements. 

If you want your agreements to be durable take the time to read the case law, check the statutory provisions and, yes, even read the Rules, like 3.1385 here, which requires that an action be dismissed within 45 days after the Court receives notice of settlement unless good cause is shown why the case should not be dismissed.


The Wages of Mediation Coercion in Title VII Cases

We've talked before about complaints that mediators sometimes use time- authority- and fear-pressure tactics to wrest agreement from the parties. 

If a client can prove she was coerced into settling a Title VII case, the Federal District Court for the Northern District of California has a remedy for her -- rescission.  

As reported last year by the National Arbitration Forum, the Court In Ryles v. Palace Hotel, rescinded a mediated settlement agreement as violative of federal law governing the release of Title VII claims.  The release of such claims must be “voluntary, deliberate, and informed.”

As the National Arbitration Forum article explained

In applying that standard, courts must consider the “totality of the circumstances.” The factors to be considered include the clarity of the agreement, the claimant’s education and business experience, whether the atmosphere for the execution of the agreement was coercive, and whether the plaintiff had the benefit of counsel.

All but one of those factors favored enforcement. However, one of the factors – whether the atmosphere for the execution of the agreement was coercive – weighed heavily against enforcement because of the “intense pressure” applied by Ryles’ attorney. Based on that factor, the Court held that Ryles could rescind the settlement agreement.

In reaching its holding, the Court cited Ryles’ letter to the Court as bolstering her credibility. Moreover, the Court rejected Palace Hotel’s argument that California law required coercion by the other party to the contract, noting that the release of Title VII claims is governed by federal law.

More on mediation "duress" soon.

Employee Bound by Arbitration Agreement Not Permitted to Cross-Complain in EEOC Enforcement Action

In the recent case of Equal Employment Opportunity Commission v. Woodmen of the World Life Insurance Society, 2007 WL 702758 (C.A.8 (Neb.)) ("Woodmen"), the U.S. Court of Appeals for the Eighth Circuit held that an employee bound by an arbitration agreement may not seek damages against her employer as an intervenor in an EEOC enforcement action.  

On appeal from the district court's refusal to grant the employer's motion to compel arbitration, the Eighth Circuit reasoned that requiring Ms. Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action.  The appellate court  also rejected claimant's argument that the arbitration agreement was preempted by the enforcement action under Waffle House.

The Court explained:

Had the Supreme Court intended to preclude an employee from asserting claims in arbitration against the employer concurrently with the EEOC enforcement action . . . , it would not have had occasion or need to discuss the possible ramifications of an arbitration award [in its Waffle House decision].

The Woodmen court concluded that neither Title VII nor Waffle House precluded Ms. Rollins from arbitrating all of the cross-claims she asserted as an intervenor in the EEOC's enforcement action.  In fact, the FAA compelled her to do so. 

Subcontractors, Developers and Insurers, Oh My!

Anyone representing contractors, developers, sub-contractors or insurance carriers in construction defect or coverage actions should read the most recent California case law on the duty to pay defense costs for complex construction defect cases.  

By "complex," I mean those cases where the HOA sues the developer who sues the general who sues the sub's, all of whom seek coverage from their carriers.  As any player in these 15-ring circuses knows, defense costs are often paid by an additional insured endorsement contained in the policies of one or two of the sub-contractors.    

That's what happened here.  The Court does a great job of clearly explaining the difference between equitable contribution and subrogation where the policies at issue provide potential coverage for some but not all of the causes of action.  The additional twist here involves excess carriers.

I'm not going to brief this case here (relying on my insurance blogging colleagues to do so).  I do want to alert attorneys for the HOAs, developers, contractors, and insurance carriers for whom I mediate construction defect and coverage cases to this important contribution to the most pressing question at any construction defect settlement conference  -- "whose got the money to settle this thing?" 

The case is Transcontinental Insurance Company v. Insurance Company of the State of Pennsylvania, filed on February 28, 2007 and published on March 27, 2007 by the Fourth District, Div. Three.

Minor Entitled to Disaffirm Contract and Arbitration Award

(pictured:  garden diety of children)

Arbitration award is unenforceable against party who was a minor entitled to disaffirm the underlying agreement.  His minority status coupled with the absence of the appointment of a guardian ad litem entitled him to disaffirm the award and judgment even after statutory deadline for moving to vacate the award had passed.

Disaffirmance by the minor did not, however, affect the enforceability of the underlying agreement or of arbitration award against the parent who agreed to be personally liable for the minor’s obligations under the contract.
Berg v. Traylor - filed March 19, 2007, Second District, Div. Two, 2007 SOS 1269

Error to Dismiss Action as Sanction for Failing to Finalize Settlement

(photo, a member of the Warlocks)

Yesterday's ruling in Levitz v. the Warlocks is important to practitioners primarily as a reminder that an "agreement in principle" may not be an agreement at all; and, if the parties do reach a "conditional settlement" whose terms won't be performed within 45 days after agreement is reached: 

  1. they must file a notice of conditional settlement with the Court;
  2. the notice must specify the date by which dismissal is to be filed; and,
  3. the plaintiff must serve and file a request for dismissal within 45 days after the date that the notice specifies for performance.

If the plaintiff does not file the required request for dismissal within the 45 day period, the Court "must dismiss the entire case unless good cause is shown why the case should not be dismissed.” Id. citing Cal. Rules of Court, rule 225(c) -- now Rule 3.185.

We do not expect to see many cases similar to Levitz where both plaintiff and defendants sought to re-schedule the matter for trial after they failed to reach an agreement "relating to complex rights relating to royalties and publishing in the music business," despite everyone's best efforts to do so. 

The lesson here is more for judges than for lawyers.  The record (detailed in the extended entry below) chronicles the events causing the trial court's justifiable frustration with predictions by counsel that settlement was "only a day away."     

Nevertheless, the Court of Appeal stressed that the trial court is not authorized by any Rule of Court or other authority, to dismiss an action as a sanction for the parties' failure to explain why their settlement negotiations failed to bear fruit.   

The appellate court explained its reversal of the trial court's dismissal as follows:    

 In their first communication with the court about their tentative settlement, the parties notified it they had a settlement “in principle,” meaning they had yet to fix its exact terms. A settlement with open material terms is not a “conditional settlement” [and therefore not subject to Rule 225 - now 3.185].  

To the contrary, it is not a settlement at all because, like all contracts, it is not binding until the settling parties agree on all its material terms. (citation omitted).  . . . A “conditional settlement” . . . involves a complete meeting of the minds but with some portion of it requiring more than 45 days for its performance.

Because the parties never entered into a binding settlement, rule 225 [now 3.185] did not apply. The court thus acted beyond its authority when it relied on [that rule] and we therefore reverse the dismissal and order the action’s reinstatement. "

Id. (emphasis added).  

The appellate court concludes its opinion by warning that a dismissal could never be ordered as a sanction against both parties because it harms only one -- the plaintiff.    

For the full text of the case, see Levitz v. The Warlocks - 2007 SOS 1195 and for the case chronology leading to the trial court's decision, see the extended entry below.  

Continue Reading

Attorney-Client Pre-Dispute Arbitration Clause Valid?

I am not certain I would read the recent EC&J v. Kessel case as broadly as did the The Institute for Conflict Management's ADR Blogger, but I haven't had time to carefully read the opinion myself (which I will do, and report to you within the week). 

So that you're alert to the opinion, I refer you to the ICM's ADR post, Court Rules Pre-Dispute Arbitration Clauses Valid in Fee Disputes.

The ICM blogger explains: 

A California appeals court has opened the door to the enforcement of pre-dispute arbitration agreements between attorneys and their clients, ruling that once a client waives the right to non-binding arbitration under the state’s Mandatory Fee Arbitration Act, a court may compel binding arbitration based on the agreement of the parties.

California’s Second Appellate District rejected the notion that language in the MFAA requiring a post-dispute binding agreement to arbitrate bars enforcement of a pre-dispute binding arbitration agreement, ruling that the statutory language only prohibits enforcement of pre-dispute arbitration agreements governed by the MFAA ( Ervin, Cohen & Jessup, LLP v. Steven H. Kassel et al., No. 191761, 2/14/2007).

For the remainder of the article, click here and for the opinion itself, click here.

Class Action Ban in Arbitration Rider Unconscionable in Oregon

Thanks to Blawgletter for reporting arbitration case law updates in Oregon with an eye for the literary as follows:

Striking down as unconscionable a ban on class actions in an "arbitration rider" to a loan agreement, the court in Vasquez-Lopez v. Beneficial Oregon, Inc., No. A125270 (Ore. Ct. App. Jan. 31, 2007), rejected the lender's argument that the ban favored neither side:

We are reminded of the observation by a character in an Anatole France novel that "the majestic equality of the laws * * * forbid[s] rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." Anatole France, The Red Lily, 95 (Winifred Stephens trans., Frederic Chapman Ed. 1894). Although the arbitration rider with majestic equality forbids lenders as well as borrowers from bringing class actions, the likelihood of the lender seeking to do so against its own customers is as likely as the rich seeking to sleep under bridges.

Cal Supremes Take Up Mediation Confidentiality Issue in Simmons v. Ghaderi

The Supreme Court has defined the issue before it in Simmons v. Ghaderi after its December 20, 2006, grant of review as follows:   

This case presents the following issue: In an action to determine whether a valid oral settlement agreement was formed during mediation, was one party estopped to claim confidentiality for the mediation proceedings (Evid. Code, sections 1115-1124) because she had voluntarily declared the facts to be true, stipulated that she did not dispute them, submitted evidence of them, and litigated their effect for more than a year?

See our own previous commentary on this case here, here and here.


U.S. Supremes: Arbitrator Must Decide Challenge to Contract Containing Arbitration Clause

The National Arbitration Forum in its 2006 Law and Policy Year in Review Reminds Us of last year's United States Supreme Court Ruling that a challenge to the validity of a contract containing an arbitration clause must be decided by the arbitrator.  

The NAF's usual excellent case summary of the Buckeye Check Cashing, Inc. v. Cardegna (2006) 126 S. Ct. 1204 case can be found here. 

NAF's conclusion -- "this 7-1 Buckeye decision is clear, convincing, and conclusive support for arbitration by this country's highest court. The Supreme Court Justices trust the judgment of arbitrators to decide disputes, and more and more parties and their lawyers will similarly entrust arbitrators to do justice."

Court May Not Order Parties to Attend and Pay for Mediation in a Complex Case

The California Court of Appeal for the Fourth District held in Jeld-Wen v. Superior Court today that parties may not be ordered to attend and pay for the private mediation of complex litigation.

After a thorough review of the law applicable to the appointment (and pay) of referees for the purpose of settlement conferences and discovery disputes, the Fourth District held

While trial courts may try to cajole the parties in complex actions into stipulating to private mediation (see Super. Ct. San Diego County, Local Rules, rule 2.3.7), they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation. In any event, we suspect that in a large majority of complex cases most parties will agree to private mediation; as such, we foresee no apocalyptic consequences from this decision.

The case is worth reading for its coverage of the differences between mandatory settlement conferences and mediation, as well as the scope of the Court's authority to require the parties to pay a retired judge or mediator for the proceedings.


Cal Supremes: Expressly Provide that Mediated Settlement "Term Sheet" is Enforceable

 The California Supreme Court held in Fair v. Bahktiari last week that parties to a mediated settlement agreement must include an express provision that they intend to be bound by any written term sheet memorializing their settlement.

If you do not, the trial court will not enforce your settlement agreement even when, as here, you've prepared a relatively detailed deal memo including an arbitration clause.

As we've recommended before, you should prepare your term sheets in advance (or better yet, bring a laptop with your form settlement agreement on it --  many of my clients do, along with a portable printer or a jump drive to plug into a local PC). 

Being prepared to draw up the settlement agreement at the mediation is not only "a stitch in time" but shows admirable optimism.  Optimism that does, believe it or not, have a real and substantial effect on the settlement proceedings.   

For tips on ways to insure that your mediated settlement agreements are enforceable (or to resist the enforcement of an "agreement" that you don't concede was actually reached) see Deborah Rothman's and my Daily Journal article on the topic here.

Continue Reading

The Mediation Privilege and World AIDS Day

(left:  Bansky! as shot by Goatgirl:  it says:   . . . for silence is a fragile thing . . . )

Silence (confidentiality) in mediation is what makes mediation possible; what permits the parties to take time out from the battlefield where everything we say and every move we make can and will be used against us.   

Private, confidential mediation time is a time when the parties can come together as people rather than as combatants.  And this is true no matter how many zeros follow the first number by which they identify the "value" of their dispute (it could be land or women or rubies; furs or hunting grounds; fishing rights or that most evanescent of properties  -- the product of the creative human spirit -- music, poetry, film, video, web cam.) 

Mediation time is a time when the law allows people to recognize that they share a mutual problem, one that yokes them together.  It is a time when they can give up carrying the conflict's burden alone and recognize that by drilling a hole in the other guy's side of the boat, they will sink their own.

On the other hand, silence and secrets are death to the spirit.  The terrible tragedy of the evangelical minister who was finally unable to keep his sexual preference silent is a good example for World AIDS Day.  The magnitude of the tragedy following his public "outing" makes the word "preference" seem weak and far too, well, preferential, as if one were ordering a meal in a restaurant or choosing a new suit of clothes.  We are, I hear, only as sick as our secrets.

But the digression seems to have become the entire post.  I nevertheless stick with my original plan to pass along, from the ADR Forum, the holding of the below-referenced appellate opinion on the mediation privilege in the context of an arbitration For the World AIDS Day page, click here.  For the (red) campaign and a video message from Bono, click here

from the National Arbitration Forum 

Confidentiality Protections Apply to Hybrid Procedure Consisting of Arbitration and Mediation
Society of Lloyd's v. Moore, No. 1:06-CV-286, 2006 WL 3167735 (S.D. Ohio Nov. 1, 2006)

A federal district court in Ohio ruled that the confidentiality protections of the Uniform Mediation Act applied to an email sent during the mediation phase of a hybrid dispute resolution procedure that first started with arbitration.

In Society of Lloyd's v. Moore, No. 1:06-CV-286, 2006 WL 3167735 (S.D. Ohio Nov. 1, 2006), Lloyd's sued Moore for alleged fraud. After the Court granted partial summary judgment, the parties agreed to submit the remaining matters to arbitration and mediation...Full Story  

Subscribe to the Free ADR Law & Policy Update here.

Cal Supremes Reverse Internet Defamation Decision

This just in from the Wall Street Journal Law Blog

The California Supreme Court today reversed an appeals court decision in a much-watched Internet case, ruling that individuals are generally immune from liability for transmitting over the Internet content that was authored by someone else.

Legal experts say the decision is in line with prior court rulings on immunity for transmitting content online originating from someone else, who themselves may still be held liable for defamation or other claims. The California court ruling came in the case of Stephen J. Barrett et al. v. Ilena Rosenthal (click here for the 41-page ruling). The case concerned an article Rosenthal received via email and posted on two Web newsgroups that the plaintiffs argued was defamatory.

“This opinion reinforces the broad reach of federal statutory immunization for content published by third-parties online,” said Eric Goldman, Assistant Professor at Santa Clara University School of Law and author of the author of the Technology and Marketing Law Blog. “This case is significant because it shuts down all of the workarounds people have been trying to find.”

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