Achieving Your Goals Through Successful Mediation(A Nuts & Bolts Primer)

Hon. Michael LatinWestlake Village. Torrance.

Hon. Patricia CollinsTorrance.

Scott Dickinson, Esq.Irvine.

Hon. Joe HilbermanIrvine.

Steven Pearl, Esq.Westlake Village. Downtown-LA.

Hon. Victor PersónDowntown-LA.

Speakers

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Association of Corporate Counsel: ACC-Socal Chapter

Selecting a Mediator

• Facilitative• Evaluative• Empathetic• Candid / Blunt• Favored by the other side• Gender / Ethnicity / Bilingual• Area of Expertise: legal and technical• Judge or Lawyer

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Determining How Much Time to Schedule

• Single Party / Multiparty• Complexity• Frailties of Participants

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Preparing the Settlement Agreement

• Prepare before mediation• Identify all of the issues to be resolved• Determine the necessary signatory• Discuss with company decision-maker

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Who to Bring?(and who not to bring)

• BRING: Person with authority to sign the agreement• BRING: Person who can legally bind the parties

• CONSIDER: Significant percipient witnesses or those intimately familiar with the facts

• CONSIDER: Transactional Counsel?• CONSIDER: Litigation Counsel?• CONSIDER: Only Outside Counsel?

• LEAVE BEHIND: People who will impede settlement (ie: people with more at stake in vindication than resolution)

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

What to Bring?

• Significant exhibits• Deposition testimony – electronic or hardcopy• All evidence that exists electronically• Evidence that refutes arguments in

opponent’s brief or anticipated arguments• Consider bringing food• Would a site visit be helpful?• Photographs and diagrams to assist mediator

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Premediation Meeting• Monetary ranges• Material goals• Estimate costs of litigation• Recoverability of attorneys fees• Discuss significance of CCP §998 offer• Discuss ranges of outcomes• Discuss appellate rights and costs• Consider whether company’s decision-maker should hear the

negatives first from counsel or first from mediator• Review facts and evidence• Discuss compromise, diplomacy, tact and tone• Discuss Mediator’s role

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

The Mediation Brief

• Exchange with Opposing Side: Before or During Mediation?

• Any confidential facts can be included in a separate cover letter or side brief

• Include legal analysis of key issues• Include discovery status and procedural posture• Include prior settlement discussions• Attach significant exhibits

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Contacting the Mediator in Advance

• Give the Mediator a “head’s up” on particular sensitive or personality issues

• If mediator has read other side’s brief, ask mediator what issues you will need to be prepared to focus on

• Ask if Mediator wants you to bring anything in particular (if the briefs have been read)

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Negotiation, Tactics, and Posturing; Effective Styles

• Know your opposition• Know your mediator• Your Style may be dictated or influenced by

your company decision-maker’s style or their emotional involvement

• Think outside the box and consider external factors that impel settlement

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

IMPASSE

• Consider impasse an opportunity to reassess• Impasse is part of the process• Consider alternative compensation or resolution• Realty check time for company?• Mediator’s Proposal• Bracketing• Discuss future in the absence of settlement• Take a break/Go for a walk

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Wage and Hour, Class Action• Different considerations at Different Stages

– Pre-Litigation or Early in Litigation:• Likelihood of compelling class or individual arbitration: application of AT&T Mobility

v. Conception and subsequent developments– Pre-Certification:

• Likelihood of class certification: application of Wal-Mart v. Dukes and subsequent developments

• State v. Federal Court– Post-Certification:

• Likelihood of decertification• Potential Outcomes at Trial

• Value of Class-Wide Releases• Discuss attorneys fees in conjunctions with damages or after

resolving damages number

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Binding Arbitration

• Consider binding arbitration as a settlement option or contractual requirement

• Hi-Low Arbitration Alternative

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Cost-Effective Binding Arbitration

• Skype: allow witnesses to appear over video conference

• Stipulations• Deposition transcripts rather than live

witnesses• Resolution of ancillary or undisputed issues

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Benefits of Mediation• A Cautionary Tale: Duran v. US Bank*• Eliminates risk• Less costly• Provides certainty• Eliminates opportunity costs• Decision is in your hands, not judge or jury• Obtain relief not available in litigation• Speedy resolution• Potentially less stressful• Maintain confidentiality and keeps dispute outside public domain

Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco

Please feel free to contact us if you have any questions…

Six State-Wide Locations to Serve YouCentury City

1900 Avenue of the Stars, Suite 250

Los Angeles, CA 90067(310) 201-0010

Downtown-LA915 Wilshire Boulevard,

Suite 1900Los Angeles, CA 90017

(213) 683-1600

Irvine19000 MacArthur

Boulevard, Suite 550Irvine, CA 92612(949) 863-9800

San Diego225 Broadway,

Suite 1400San Diego, CA 92101

(619) 233-1323

Silicon Valley153 North 3rd Street,

Suite 603San Jose, CA 95112

(408) 293-1113

San Francisco50 Fremont Street,

Suite 2110San Francisco, CA 94105

(415) 772-0900

w w w. A D R S e r v i c e s . o r g

About the SpeakersHon. Michael LatinLos Angeles Superior Court judge (ret). Supervising site judge of Van Nuys Courthouse. LA District Attorney’s Office. Littler Mendelson (spec. in employment defense). Named California Lawyer of the Year by the California Lawyer Magazine in 2003.

Hon. Patricia CollinsLos Angeles Superior Court judge (ret). Assistant US Attorney. Adams Duque & Hazeltine (spec. in business litigation, antitrust, and insurance defense) . Named a Top 50 Neutral by Daily Journal Newspaper for 2010 and 2011.

Scott Dickinson, Esq.Gilbert Kelly Crowley & Jennett (spec. in insurance defense). Burge Strid & Dickinson (spec. in business and tort litigation). Advanced Degree in Physiology. Named Top 50 Neutral by Daily Journal Newspaper for 2010 and 2011.

Hon. Joe HilbermanLos Angeles Superior Court judge (ret). Founder of Fonda Hilberman & Fraser (spec. in insurance defense). Named a

Top 50 Neutral by Daily Journal Newspaper for 2010 and 2011.

Steven Pearl, Esq.Law Offices of Steven G. Pearl (spec. in

employment litigation). Orrick Herrington & Sutcliffe (spec. in employment and

insurance defense, business and entertainment law litigation). Author of

Wage & Hour Class Action Update.

Hon. Victor PersónLos Angeles Superior Court judge (ret). LA District Attorney’s Office

(Civil Litigator in Consumer & Environmental Protection Division) .

Named Top 50 Neutral by Daily Journal Newspaper for 2009.

Available to Serve as Mediators and Arbitrators at …