Achieving Your Goals Through
Successful Mediation
(A Nuts & Bolts Primer)
Speakers
Hon. Michael Latin
Hon. Joe Hilberman
Westlake Village. Torrance.
Irvine.
Hon. Patricia Collins
Steven Pearl, Esq.
Torrance.
Westlake Village. Downtown-LA.
Hon. Victor Persón
Scott Dickinson, Esq.
Downtown-LA.
Irvine.
Association of Corporate Counsel: ACC-Socal Chapter
Century City
Downtown-Los Angeles
Irvine
San Diego
Silicon Valley
San Francisco
Selecting a Mediator
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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
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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?
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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
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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
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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
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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 You
Century City
1900 Avenue of the
Stars, Suite 250
Los Angeles, CA 90067
(310) 201-0010
Downtown-LA
915 Wilshire Boulevard,
Suite 1900
Los Angeles, CA 90017
(213) 683-1600
Irvine
19000 MacArthur
Boulevard, Suite 550
Irvine, CA 92612
(949) 863-9800
San Diego
225 Broadway,
Suite 1400
San Diego, CA 92101
(619) 233-1323
Silicon Valley
153 North 3rd Street,
Suite 603
San Jose, CA 95112
(408) 293-1113
San Francisco
50 Fremont Street,
Suite 2110
San 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 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 2003.
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 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 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 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 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 2009.
Available to Serve as Mediators and Arbitrators at …