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Achieving Your Goals Through Successful Mediation (A Nuts & Bolts Primer) Hon. Michael Latin Westlake Village. Torrance. Hon. Patricia Collins Torrance.

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Presentation on theme: "Achieving Your Goals Through Successful Mediation (A Nuts & Bolts Primer) Hon. Michael Latin Westlake Village. Torrance. Hon. Patricia Collins Torrance."— Presentation transcript:

1 Achieving Your Goals Through Successful Mediation (A Nuts & Bolts Primer) Hon. Michael Latin Westlake Village. Torrance. Hon. Patricia Collins Torrance. Scott Dickinson, Esq. Irvine. Hon. Joe Hilberman Irvine. Steven Pearl, Esq. Westlake Village. Downtown-LA. Hon. Victor Persón Downtown-LA. Speakers Century City Downtown-Los Angeles Irvine San Diego Silicon Valley San Francisco Association of Corporate Counsel: ACC-Socal Chapter

2 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

3 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

4 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

5 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

6 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

7 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

8 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

9 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

10 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

11 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

12 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

13 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

14 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

15 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

16 Please feel free to contact us if you have any questions… Six State-Wide Locations to Serve You Century City 1900 Avenue of the Stars, Suite 250 Los Angeles, CA (310) Downtown-LA 915 Wilshire Boulevard, Suite 1900 Los Angeles, CA (213) Irvine MacArthur Boulevard, Suite 550 Irvine, CA (949) San Diego 225 Broadway, Suite 1400 San Diego, CA (619) Silicon Valley 153 North 3 rd Street, Suite 603 San Jose, CA (408) San Francisco 50 Fremont Street, Suite 2110 San Francisco, CA (415)

17 About the Speakers Hon. Michael Latin Los 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 Hon. Patricia Collins Los 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 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 Hon. Joe Hilberman Los 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 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 Persón Los 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 Available to Serve as Mediators and Arbitrators at …


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