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today.

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Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, the

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honorable Delilah C. Lyons of Signature Resolution, will guide you through types of disputes and

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traditional processing. Let's dive in.

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This is the session on types of disputes and traditional processes. Welcome. I am Judge

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Delilah Corral Lyons. It would be my pleasure to go through this session with you.

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Let me give you first a little background on myself. I was a judge with Los Angeles Superior

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Court for 18 years, and I retired in May of 2023. I presided over criminal and civil cases.

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My last eight years on the bench, I was in a civil, unlimited jurisdiction court room

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at the Stanley Monace Courthouse downtown Los Angeles. My last three years on the bench,

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I conducted mandatory settlement conferences full time. In fact, I did two of those a day,

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one in the morning and one in the afternoon. While on the bench, I had the pleasure of

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teaching new judges, and I was also the chair of the court's new judges educational program.

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Prior to my appointment to the bench, I was a civil litigator. I work with Los Angeles

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Office of the County Council, and I also work with two business litigation law firms and

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our entertainment law firm. I'm now a mediator with Signature Resolution.

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Let me give you now an overview of what we are going to do in the next two hours. This

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is a two hour session, and these are the topics we're going to cover. I will first provide

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a brief overview of the structure of the California Just Assist. Then I will give an overview

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of the alternative dispute resolution programs, particularly those in Los Angeles Superior

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Court. I will also discuss the methods of processing civil and criminal cases, and this

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is where my background in both civil and criminal cases as a judge will become handy. Next,

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I will discuss the most common disputes in alternative dispute resolutions, where you

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may see these topics, disputes most often. Those disputes include landlord-tenant, customer-mergent

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disputes, neighbor-to-neighbor disputes, personal injury, business disputes, and employment disputes.

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And finally, I will provide tips and strategies for effective mediations.

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Let's now start with the overview of the courts in California. Under the leadership of the

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Chief Justice of the Supreme Court, the Judicial Council is the policymaking body of the California

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courts, which is the largest court in the nation. The California court system serves

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a population of more than 39 million people, which is about 12 percent of the total of

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the U.S. population. The California state has two types of courts, as you know, the

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trial courts and the appellate courts. The vast majority of the cases in California

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courts begin in one of the 58 trial courts, which reside in each of the 58 counties in

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the state. With approximately 450 court buildings throughout the state, the courts hear both

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criminal and civil cases, as well as family, probate, mental health, juvenile, and traffic

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cases. Now, the next level of judicial authority resides with the court of appeal. Most cases

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before the courts of appeal involve the review of the superior court decisions. There are

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six appellate districts in California, and finally, we have the state supreme court that

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serves as the highest court in the state and has the discretion to review decisions of

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the courts of appeal in order to settle important questions of law and to resolve conflicts

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among the courts of appeal. Now, let's look at the Los Angeles Superior Court. Los Angeles

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Superior Court is the second, is in the second appellate district. The other superior courts

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in the second district are San Luis Obispo, Santa Barbara, and Ventura. As you can see

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from the graphic here, the graphic has the information as to the judges and the supported

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judicial officers and the full-time employees for these particular courts. Now, let's look

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a little closer at Los Angeles Superior Court. It is the largest in the nation. It is one

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of 58 superior courts in California. It serves an area of within 88 cities and 140 unincorporated

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areas in the county of Los Angeles. Now, the court of Los Angeles serves a population

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of over 10 million people, and it includes 37 courthouses, depending on which ones are

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closed or open, reopen, and they are located in 12 judicial districts throughout the county's

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4,752 square miles. Now, there are about 580 judicial officers and over 4,800 employees

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in the Los Angeles Superior Court. The judicial officers in the court hear every case type

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of under-the-state law, criminal, civil, family, juvenile, dependency, probate traffic, and

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everything in between. Now, I'm going to give you now some brief overview of the statistics

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of the court, and this is from fiscal year 2021 to 2022. They were civil filings, totally,

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for unlimited cases of 67,199. And for civil limited filings, these were filings that were

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made in the Los Angeles Superior Court, not including the evictions of 77,257 cases. And

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for small claims, or other civil is 22,273 cases, and for UDs and evictions, 20,305.

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This is again for the fiscal year 2021 to 2022. Now, let's look now at the statewide

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statistics very briefly, because there's a lot of statistics, and I'm not going to bore

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you with a lot of them, but I'm just going to pick a couple of them. Let's now look at

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the, a couple of statistics that are provided in the statewide case law trends. This is

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the Judicial Council's 2024 Court Statistics Report. And this is a report that is published

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annually by the Judicial Council of California, and it is designed to fulfill the provisions

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of the California Constitution, which requires the Judicial Council to survey the condition

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and the business of the California courts. The court statistics report combines about

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10 years statewide summaries of Superior Court filings and dispositions. So if you ever are

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bored and you want to see what other counties, what the statistics are for filings or dispositions

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of cases, this is your report to go to. The 2024 Court Statistics Report also provides

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more detailed information on filings and dispositions in the individual Superior Courts for the most

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recent fiscal year. And in this case, the data is for 2022 to 2023. So let's look at a couple

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of them just very briefly. So what does this report say about what states, at what state

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I'm sorry, do the unlimited civil cases get resolved? Again, this is for unlimited civil

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cases. It's very interesting that they have the statistics for the entire state. At what

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state do they get resolved? Which means at what state will you mostly be doing mediations

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or other alternative dispute resolution processes? So the resolution of a case may occur, of

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course, at any time in the stage of a case. However, generally, resolution generally occurs

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after some discovery is conducted and before the trial. Now, sometimes ADR occurs even

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before a formal court filing. This will have to be with private mediation as opposed to

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with the court, but the ADR is often used in pre-filing cases. Now, pursuant to the

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Judicial Council Statistics report, again for 2022-2023, 80% of the cases of unlimited civil

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cases get resolved before the trial and 20% after the trial. Now, this is again statewide

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and of those 80% constitute 86,902 cases that were resolved prior to the trial and after

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the trial 21,520. Now, a total of 255,914 cases of unlimited civil cases were filed in

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the court statewide for the fiscal year 2022-23. Now, let's look at one more interesting statistics

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of what state did most limited cases get resolved and pursuant to this report. This is interesting.

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The entire chart is almost all blue, the blue section being that that is 99% of the limited

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civil cases statewide were resolved before the trial. That's pretty amazing, 99%. And

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before trial, there was just 1%. I'm sorry, and after trial, there was only 1%. So this

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is probably not surprising to most people. Again, this is in the statistic report, if

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any of you want to look at it. What about UD cases, lawful detainer cases? What stage

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do they most recoup resolved? Well, according to this report, 86% were disposed before trial

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and 14% were disposed after trial. Now, of that 90% of the 1% disposed after trial or

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2%, 99% were by court trial and 1% were by jury trial. Here's another informational

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chart which I will not review in detail. It's in your material, so you can review it later

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if you're interested. I'll just point out one stat at the very top of the chart is

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your fiscal year 2023. The report divided the total filings into the authorized judicial

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position statewide and the total filings per judicial position or floor 2248. This is per

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judicial position in the state. So each judicial officer, if you were to buy them, would have

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that many cases. Now, here's my last fascinating chart to share with you, which is analyzing

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the processing time of civil unlimited cases, limited cases, UDs, and small claims. So this

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is very interesting in that it analyzed the time it took to process these types of cases.

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Again, this is statewide. So for example, just share one of the statistics here. It took

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in less than 24 months, as you can see, for the fiscal year 2023, 86% of the cases were

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processed. So in less than that, you can look at this chart later because it has a lot of

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helpful information. Now, let's end now with the stats and let's look at ADR now. Now,

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let's talk about the benefits of ADR and which, as you know, are many. Number one is that

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it saves time. A dispute often can be settled or decided much sooner in an ADR process than

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in a trial. Often in a matter of months, you can decide the dispute with ADR. Sometimes

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even weeks while bringing a lawsuit to trial can often take years, as you just learned

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from the judicial counsel report, it takes a lot of time to process the cases through

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the court system. Whereas with ADR, the disputes are resolved much faster than the conventional

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trial process. The other benefit is that it saves money. When cases are resolved earlier

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through ADR, the parties may save some of the money they would have spent on the attorney's

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fees, court cost, extortion fees, and other litigation expenses and put it into a settlement.

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It saves money not only for the litigant, but also for the judicial system in processing

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the cases. Now, the other benefit is that ADR increases control over the process and

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the outcome. In ADR, parties typically play a greater role in shaping both the process

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and its outcome. In most ADR processes, parties have more opportunity to tell their story

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than they do at a trial. Some ADR processes, such as amniotiation, allow the parties to

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fashion creative solutions that are not available in a trial. Other ADR processes, such as arbitration,

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allow the parties to choose an arbitrator in a particular field to decide the dispute.

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So parties also have a greater influence over both the process and the outcome, allowing

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for a more personalized storytelling and creative resolution that is not possible in trial.

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Another benefit of ADR is that it preserves the relationships. ADR can be less adversarial

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and less hostile way to resolve cases. For example, an experienced mediator can help

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the parties effectively communicate their needs and the point of view for each other's

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sides. This can be an important advantage where the parties have a relationship to preserve.

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For example, they have a business relationship, they have a neighbor relationship, a family.

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They want to preserve that relationship after the dispute has resolved. And an ADR officer

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has a beautiful opportunity to do that because you can craft the resolution with the terms

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and conditions that will preserve and maintain and even sometimes improve the relationship

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between the litigants. Now, unlike trials, which focuses on deciding fault, who wins,

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who loses, mediations focus on crafting customized solutions that both sides can live with without

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deciding who's at fault. Another benefit is it increases satisfaction, client satisfaction.

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In a trial, there is typically a winner and a loser. The loser is not likely to be happy

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and even the winner may not be completely satisfied with the outcome. But you always

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have a winner and a loser in a trial. I did many, many trials when I was in the court

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and there's always a winner and a loser. ADR can help the parties find a win-win solution

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and achieve their goals. Both parties compromise, both parties give in a little bit. They feel

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that they got a little bit of what they wanted, maybe not exactly what they wanted, but they

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feel satisfied and it includes the satisfaction level. Now, this may increase the party's

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overall satisfaction with both the process and the outcome. And a final but not least

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benefit of ADR is that it improves attorney-client relationships, frankly. I've seen many mediations

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in which clients and the counsel, after the mediation result, is the case, they have an

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improved relationship because they spend a lot of time crafting a very customized settlement.

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So attorneys may also benefit from ADR by being seen as problem solvers rather than

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combating and fighting each other. Quick, cost-effective and satisfying resolutions are

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likely to produce happier clients and generate more repeat business for the attorneys. As

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well as let's talk about what the impact is of ADR on the judicial system. ADR significantly

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streamlines cases, resolutions and alleviates court backlogs by resolving disputes before

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they reach to trial. So by diverting cases out of the traditional court processes, ADR

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helps reduce wait times for the trial dates and decreases the judicial systems of burn.

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And this is quite helpful as I just retired last year from the bench. We welcome mediators

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who would volunteer to help us take care of the backlog in the court, which is a big one.

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So overall ADR contributes to a more efficient legal process allowing the courts to focus

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resources on cases that require formal judicial attention. The courts are still feeling the

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effects of the COVID backlogs and ADR helps reduce this backlog and help ensure a prompt

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access to justice, which is really the goal here. Everybody should have a prompt access

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to justice, not just access but a prompt and access to justice and ADR is a significant

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contributed to that goal. Now let's go over some of the ADR programs in the Los Angeles

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Superior Court. I will discuss some of the programs in effect at this time, but they

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may change from time to time. Different presiding judges may add or expand on one or contract

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on another one, eliminate others, but these are some of the ADR programs currently in

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effect in the court. First, what I'm going to talk about is the Dispute Resolution Program

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Act, known as DRPA, Day of Hearing Mediation. Now through the Dispute Resolution Program

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Act, the court works with county funded agencies through the Los Angeles County Department

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of Consumer and Business Affairs and with the Center for Catholic Resolution and they

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provide voluntary Day of Hearing Mediation Services for small claims, unlawful detainer,

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limited civil and civil harassment matters. Now these two programs are staffed by trained

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volunteers at service mediators, primarily for self-represented litigants. There is

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no charge to the litigants and in 1986, the California Dispute Resolution Program Act

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was signed into law. This is a little background of how this came into effect and this law

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allows the counties to fund these ADR services from a portion of the filing fees collected

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for the first papers in civil court's actions. So currently, nine agencies are contracted

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with this program and fund to train and supervise mediators in Los Angeles County. Now these

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mediators help provide to resolve the differences without the need of the additional cost of

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time that may be required for a full formal court hearing. The next program we're going

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to discuss is online dispute resolution, ODR. This is a free online service provided by

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the court to help small claims and unlawful detainer litigants explore settlement options.

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Now ODR guides parties through a step-by-step program and after both sides register for

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the ODR, they may request assistance from trained mediators to help them reach an agreement.

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The Los Angeles Superior Court developed a fillable settlement agreement form for the

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UDs on the ODR program. This form was recently revised in 2021. If anybody is interested in

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this form, it's LA Superior Court CIV 284. Now another program is the UD MSC pilot program.

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In this program, temporary judges are trained as settlement officers and are assigned by

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the court to forward unlawful detainer court locations on designated state each week to

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facilitate settlement of unlawful detainer cases on the day of trial, which is when a

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lot of the cases settled. For this program, cases may be ordered to participate in this

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MSC by judicial officer Eddie, their the Stanley Moss Courthouse downtown LA, Long Beach Compton

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or San Monica. Now settlement rooms and farms are available for the use of the designated

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day at each courthouse location and there is no charge to the litigants or the UT MSC.

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Another program is the Mediation Center for Los Angeles Referral Program. The court may

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refer unlimited civil cases to mediation through a formal contract it has with the Mediation

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Center of Los Angeles is a nonprofit organization that manages a panel of qualified mediators.

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The cases must be referred to the program by a judicial officer and there are five participating

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currently five participating judicial districts the North Central East, Southwest, Northwest

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and North Valley. The courts ADR office will provide the parties with information for submitting

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the case intake form for this program and this program has a designated fee schedule.

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Okay, now let's talk about another program that is also very much dear to my heart. This

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is the Resolve Law LA. I had the pleasure of training the volunteer attorneys who were

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going to be judicial office settlement officers, not judicial officers in this program. So

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let me first go over very briefly how this work has been a very successful program. I'm

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very proud to have been involved in it at the beginning and training the officers. The

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first one we started was with the personal injury. It was launched in June 2021 and the

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parties in personal injury cases may be ordered to participate in this virtual mandatory settlement

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conferences through Resolve Law LA. It has it on website. Please look at it from our

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information and this program leverages the talent of the volunteer attorneys who act

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as settlement officers to conduct virtual mandatory settlement conferences. They all

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have gone to some training so make sure you look at their website. Now in later in January

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of 2022, the program was expanded to employment case. So it was launched in January 2022. The

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Early Resolution Employment Case Mandatory Settlement Conference pilot program, which

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encourages resolution of employment cases are assigned to five independent calendar

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courtrooms in the court central civil division at the Stalin-Maz courthouse. Judicial officers

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in those courthouse or rooms identify and assigned appropriate cases to an early virtual

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MSC to be conducted through Resolve Law LA. The program was intended to assist less complex

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cases and avoid the expense of the delay and the protective litigation through early dispute

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resolution and improve the speedy resolution of disputes between employers and employees.

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Now these two Resolve Law LA virtual programs are a joint effort of the court, the Consumer

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Attorneys Association of Los Angeles, the Association of Southern California Defense

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Council, the Los Angeles chapter of the American Board of Trial Advocates, and the Beverly Hills

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Bar Association. Now let's look now at the stats with a settlement rate for Resolve Law LA through

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July 7, 2022. This is what was published and as you can see from the slide here in the employment

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cases, 38% settle and 41% of the PI cases settled and this was published in the court's annual report.

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Now let's continue with Los Angeles Superior Court ADR programs and these will be the last two

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programs that I will discuss from the court. Next program is the Family Launches Daily Settlement

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Officer Program. These are volunteer settlement conferences led by experienced family law attorneys

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for various family law matters provided by Los Angeles County Bar Association and other

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local bar associations at no charge to the litigant. Experienced family law attorneys serve as daily

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settlement officers and provide voluntary settlement conferences for parties who appear

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in family law matters in person or through a virtual platform at no charge. Judicial officers

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identify and refer the appropriate cases to these officers to assist parties in reaching

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agreements on support issues, property issues, attorney's fees and costs, discovery financial

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issues that involve child custody, or case management issues. The settlement officer,

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daily settlement officer also can help litigants and their counsel be prepared to officially proceed

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with their hearing or trial when they appear before the court by enabling parties and councils to

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meet and confer about case management, discovery issues that may or may not be an issue on the day

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they are being referred. Now this is a voluntary based program provided by Los Angeles County Bar

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Association and other local bar association. And last but not least, the court's probate

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pro bono settlement program. The pro bono probate settlement program provides parties with an

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opportunity to resolve cases and matters of probate, trust, states, guardianships or conservatorships.

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Volunteer attorneys who are experienced practitioners and probate court matters serve as

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volunteer settlement officers through the Sapernavalli Bar Association. The program

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participation is by court referral only and may be requested by one or more of the parties.

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And settlement conferences are held virtually and there again is no charge to them. So those

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are all the ADA probes I'm going to discuss and that the least that are in the court.

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Next, we're going to go over the civil cases. So I'm going to discuss now the types of civil

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cases in civil court that you as mediators, alternative dispute officers may encounter.

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Okay, there are several kinds of civil cases, UIC and the ADR process. Let's talk first

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about generally about the general civil cases. The general civil cases are those in which the

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alleged damages are over 25,000 and in fiscal year 2022 to 2023, there were 255,940 unlimited

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civil cases filed in the courts statewide. Now, we also have the limited cases.

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Limited cases are those where the alleged damages are under 25,000 and the limited cases

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totaled 402,019 statewide for fiscal year 2022 to 2023. Then you also have family law cases. Those

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are the divorce cases. They're also called dissolution of marriage, child support, and child

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custody cases. Then you have juvenile cases. Cases about child abuse and neglect, juvenile

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dependency cases, or when someone under 18 years of age breaks the law, it's a job to

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justice property. And landlord tenant cases. These cases are about renting or leasing real

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property. Civil cases involving the small claims, there's the other one, I'm sorry. And

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those are civil cases that are 5,000 or less. And whereas you know, the parties represent themselves.

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And probate cases. Cases dealing with taking care of people and their personal affairs,

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for example, using a will or trust to transfer property after someone dies,

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guardianship and conservice shirt for people who can't take care of themselves or handle their

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own finances. Name changes, adoptions, or elder abuse. Now let's go over how a civil case is

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processed. This is very elementary, but I think it's important to go over generally the process.

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As you all know, the complaint or petitions filed in Superior Court is served on the defendant,

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defendant files an answer or a response. Discovery is conducted. And you could either go to

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dismissal or settlement and actually settlement or dismissal court could hurt any stage of this case.

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And then after the discovery, you have to jury by judge or trial and then judgment and center.

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That's the very skeletal processing of a civil case. And there's more details, but generally

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that's where it's processed. And of course, the ADR may occur at any stage of that case,

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even as before it is actually filed in court. Now let's go over who provides alternative dispute

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resolution in civil cases. Of course, we have the courts, community organizations, as you just

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heard from the programs I described, the court, it has a partnership with a lot of a community

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agencies that provide ADR and of course, private companies like the one I'm curling with,

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signature resolution and many other ones, private mediators, private individuals who also provide

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ADR services. Let me discuss now the types of ADR in civil case. The types are, of course,

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mediation, arbitration, and judicial mandatory settlement cards. Now let's look at each three

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of them. Mediation. Mediation is where a neutral mediator listens to each of the party's concerns,

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helps them evaluate the strengths and weaknesses of their case, and works with them to try to

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create a settlement agreement that is acceptable to all parties. Mediators do not decide the outcome

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of the case or the legal issues or factual disputes. They facilitate an agreement between

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the parties. In private mediations, both sides agree to hire a neutral third party to act as the

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mediator. Now, mediator may be appropriate where the parties want to work on a solution but need

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help from a neutral or have communication problems or strong emotions that interfere with the

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resolution. It's always good to have a neutral when those are the circumstances of the case

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or where parties value an existing personal or personal relationship and they want to continue

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that relationship. As I mentioned before, that's one of the benefits. The neutral may assist in that

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as well. Litigation is stressful and may damage relationships. So, a mediator will work with

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the parties to work out an agreement which will resolve the dispute and hopefully preserve the

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relationship. That is one of the big benefits of having ADR as opposed to proceeding to try

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Now, mediator mediations may not be appropriate when the parties want a public trial because

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mediation is private. If somebody wants a public trial, they will have to have,

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cannot, should not go to mediation or it may not be appropriate where they want a judge or a jury

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to decide the outcome. Mediators, there's a lot of private retired judges like myself,

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but they may, the individuals may prefer to have a jury and that's when you have to go to a trial.

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And it may not be appropriate when there's unequal bargaining tower between the parties. You have a

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pro per was not sophisticated versus a very sophisticated other party. So, those are the

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circumstances where it may or may not be appropriate. Now, let's now look at arbitration.

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Arbitration is a less formal than a trial, but like a trial, the parties present evidence and

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arguments to the arbitrator who decides the outcome or makes a ruling on the case. In binding

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arbitration, the arbitrar's decision is final. There is no right to trial. In non-binding arbitration,

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the party may request trial after the arbitrator's decision. I call arbitrations very, very informal

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court trials of which I did many when I was in the court. So, I enjoy the fact that they are

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much less formal. The rules are very flexible and it's really by agreement of the parties.

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Now, the last but not least type of ADR is mandatory settlement conferences, as you heard

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from my prior slides. It's very dear to my heart because I did mandatory settlement conferences

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for three years before I retire. Now, these are conferences that are ordered by the court

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where the parties are ordered to appear at an MSC. The parties may request that the judge

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order them, but there must be an order. And these are conducted by a judicial officer who tries to

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help the parties come to a resolution. Again, although the judicial officer is a sitting officer

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of the court, they do not make a decision, but instead they assist the parties in evaluating

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the strengths and weaknesses of the case and in negotiating a settlement. These could be an entire

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day view or half a day depending on the type of case. Now, we've looked at mediations and MSCs and

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a lot of people are confused about what's really the difference. They kind of do the same thing and

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there's big differences and a lot of similarities. Okay, now let's talk about the differences

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between mediation and MSC. There's a lot of confusion because there's a lot of similarities

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and there's also a lot of differences, but the differences are crucial and it's important. I'm

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going to go over some of the key differences for you today. So mediation confidentiality is the big

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difference and it is covered by evidence code 1119, which provides that one cannot, a court cannot

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admit, a artist cannot disclose, or subject to discovery. Anything said or any admission or

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writing, if prepared for the purpose of, in the course of, or pursuant to a mediation or a mediation

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consultation. All communications negotiations set on the discussions by and between participants

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in the course of the mediation or a mediation consultation shall remain confidential. As you

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can see, this is a confidentiality rule that is very broad and there's a very robust area of the law

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that provides statutes that govern confidentiality. Whereas in MSC, there is no mediation confidentiality.

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MSC is governed by the evidence code 1152, which provides that an offer, offers of compromise,

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as well as any conduct or statements made in negotiation, thereof, are inadmissible to prove

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liability for the laws or damages. So as you can see, this is a evidence preclusion rule.

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It is not a confidentiality rule. That's the difference, main difference and most important

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difference in my view between the MSC and the private mediation. In fact, evidence code 1117

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B2 specifically, very clearly, it simply provides that mediation confidentiality does not apply

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to settlement conferences. I love this rule because it's clean and simple and yet there's no issue

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of what it says. It simply says mediation confidentiality does not apply to settlement

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conferences. So the only issues, the only ones that would be protected, matters will be under the

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11th and code 52, which is the inadmissibility. Now a lot of people ask, well, is there a

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particular confidentiality that you could agree to in MSC? Yes, but it has to be by stipulation.

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Now, another similarity between the two is that both mediators and settlement judges

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have immunity. They cannot testify as witnesses to any settlement, conduct, decision or ruling

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or occurring at or in conjunction with the mediation or the MSC. That's in evidence code 703.5,

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in evidence code 1121 governing mediators. Now, let's look at some of the differences here in

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your slide. Mediations are voluntary. Parties have to agree. This at least private mediations are

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voluntary. Parties have to agree. They select a mediator. Whereas MSC, they are ordered by the

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court. So whether you want to or not, they're ordered sometimes. Now, another big difference is

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the private mediations, of course, are for a fee. The parties have to pay a fee, the mediators fee.

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MSCs, they're free. There's no fee. That's part of the court services provided. In mediations,

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they're held in private offices. MSCs, usually in the courthouse or Zoom, if they're like in the

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program, Brazil, LLA that I discussed, they're virtual. And another big difference is in mediation

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briefs do not need to be shared with opposing counsel. They may be shared if the parties agree,

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but they are not required to be exchanged with the opposing counsel. Now, an MSC statement,

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not a brief, it must be shared with opposing counsel, and this pursuant to the California

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rule of court and the local rule. So those are some of the key differences between the two.

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Now, I'm going to go into a different area. This is criminal law. Let's talk about very briefly

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about cases that you may deal with or very briefly about how ADR is in criminal cases. For those of

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you that are interested in doing alternative and dispute resolution and criminal cases,

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there it is, that opportunity. And as when I first got pointed to the bench, I presided over criminal

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cases. So I was fortunate to do felony trials for numerous years. And I did see, I didn't do ADR

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in that stage, but it is there is somebody's interested in it. Let's talk now about the types

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of criminal cases very briefly. There are three different kinds of criminal cases, as you know,

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infractions, misdemeanors, and felonies. And infraction is a minor violation, often including

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minor traffic offenses and fractions, usually resolved in a fine and do not lead to jail time.

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Now, misdemeanor is a more serious than an infraction. It's punishable by up to one year

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in jail, county jail. And misdemeanors are a wide range of offenses necessitating more

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significant legal proceeding compared to an injunction, but not as much as a felony.

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Not felony is the most serious kind of crime. If offenders are found guilty, they can be sent

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to state prison or even receive the death penalty. Now, very briefly in the fiscal year 2022 to 2023,

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felony filings represented 183,151 cases. Misdemeanor filings total 439,141 cases.

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And infractions, violence accounted for 2 million 0.6 cases statewide.

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Now, let's talk about the process. How a criminal piece is processed very briefly. It really should

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be two separate columns. The misdemeanors and the felonies are in kind of in two separate processes.

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But the big difference between the processing of the felony and the misdemeanor is that in

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a felony, you have the preliminary hearing held, whereas there is no preliminary hearing

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and a misdemeanor. So in a felony complaint process, the felony complaint is filed. The warrant

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is issued for the defendant's arrest or in bond set, if it's warrant, charges or not, or dismissed.

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Then there's a preliminary hearing to see if there's sufficient evidence to hold the defendant

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over for trial. Then if the defendant is bound over for trial, that felony information is filed,

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then there's an arraignment on that information. Discovery occurs and discoveries are already

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limited in criminal cases versus civil cases. That's information shared between the parties.

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Once that's completed, the trial is held, jury or judge, usually jury, and then you have the

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finding of guilty not guilty. And of course, the nebulous appeals follow. So this is how the

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criminal case is processed, like I said, that made to difference between the misdemeanor and the

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felony is the preliminary hearing being held in a felony, not in a misdemeanor. Now let's go over

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the ADR in criminal cases. This is a very brief overview. In criminal cases, especially felonies,

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generally the district attorney and the defense attorney engage in ADR without using a

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neutral. There's no mediators. There's no private mediators. There is a judge, sometimes in

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the court house. There's a judge that's assigned just to do ADP early disposition of cases,

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but it typically is a negotiation between the DEA and the defense. Sometimes, like I said,

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with the assistance of a judge. Now the other ADR program in criminal cases is a community

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conflict resolution program. For lesser offenses, the attorney, district attorney may establish a

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community conflict resolution program for qualifying criminal cases. This is pursuant to

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penal code 14151. And some qualifying criminal cases are those where the juvenile vendors are

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arrested for nonviolent crimes such as disorderly conduct, theft, property damage, alcohol possession,

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harassment, and trespassing. And let's look at a couple other programs in criminal cases.

404
00:45:16,720 --> 00:45:24,800
The other ADR in criminal cases is a restorative justice. ADR in criminal cases can include

405
00:45:24,800 --> 00:45:30,880
restorative justice, which allows the victim and the alleged offender to resolve the matter without

406
00:45:30,880 --> 00:45:38,240
formal court proceedings. In some circumstances, the accused might not face a conviction or a

407
00:45:38,240 --> 00:45:44,560
criminal charges. Restorative justice ADR enables the victim and the alleged offender to resolve

408
00:45:45,360 --> 00:45:52,160
issues outside the formal court setting. It may result in no formal conviction or criminal charges

409
00:45:52,160 --> 00:45:58,960
for the accused, focusing on reconciliation and community healing. Disputes in this program

410
00:45:58,960 --> 00:46:06,480
involve infractions or misdemeanors in which using this restorative justice principles and practices,

411
00:46:06,480 --> 00:46:14,400
persons accepting responsibility for harm, causing behavior, and those harmed by the behavior

412
00:46:15,520 --> 00:46:21,280
and brought together for facilitative dialogue to share their experiences

413
00:46:22,000 --> 00:46:27,600
and plan the actions that will be used to repair the harm. Now, these cases are referred by law

414
00:46:27,600 --> 00:46:37,440
enforcement or the prosecuting agents. The benefits of ADR in criminal cases are that, as in civil

415
00:46:37,440 --> 00:46:45,520
cases, it resolves the disputes between the parties effectively and amicably. It helps restore or resolve

416
00:46:45,520 --> 00:46:51,200
disputes that minimizes legal cause, like in civil cases, and the financial burden on the parties and

417
00:46:51,200 --> 00:47:00,000
the courts. And, of course, the same benefit as in civil cases, it reduces the case load and the

418
00:47:00,000 --> 00:47:08,480
demands on the courts. And now, let's look at what would happen in some of these in this program

419
00:47:08,480 --> 00:47:15,120
if the criminal cases refer to a community conflict resolution program after the filing of a criminal

420
00:47:15,120 --> 00:47:20,480
complaint. But prior to adjudication is resolved to that referral, the court may dismiss the action

421
00:47:20,480 --> 00:47:29,920
pursuant to Penal Code 1378 or 1385. So, effectively, we'll conclude the matter without a criminal record

422
00:47:29,920 --> 00:47:35,920
to the accused on the community conflict resolution program. This is a great benefit to a lot of the

423
00:47:36,480 --> 00:47:41,840
individuals involved, so they will not have a criminal record. Now, we're going to discuss

424
00:47:41,840 --> 00:47:53,120
common civil disputes that you may encounter in ADR. Common disputes that are likely to be brought to

425
00:47:53,120 --> 00:48:01,200
mediation are the landlord-tenant, customer-merchant, neighbor-to-neighbor, personal injury like

426
00:48:01,200 --> 00:48:08,800
traffic accidents, slip and fall, family law dissolution, business disputes, employment disputes,

427
00:48:08,800 --> 00:48:15,680
and ADR may differ among these different types of disputes. Some of them can be more complex than

428
00:48:15,680 --> 00:48:20,720
others. Some of them have certain unique characteristics that requires a different approach,

429
00:48:21,440 --> 00:48:28,080
but these are the most likely civil disputes you will encounter in ADR.

430
00:48:29,520 --> 00:48:36,960
Let's talk now about the first group, which is the landlord-tenant disputes. These types of

431
00:48:36,960 --> 00:48:44,640
disputes involve the tenant's rent, let's talk first about the rent payment disputes, where

432
00:48:45,280 --> 00:48:52,720
a involves the tenant's failure to pay rent or sufficiency of the landlord's notice to increase

433
00:48:52,720 --> 00:48:59,920
the rent. For example, a common dispute is whether landlords give residential tenants sufficient

434
00:48:59,920 --> 00:49:07,920
warning before increasing rent or whether the notice complied with the law or whether it was

435
00:49:07,920 --> 00:49:14,400
delivered on time. The notices in these types of disputes are very technical. They have to

436
00:49:14,400 --> 00:49:22,480
follow a lot of rules, and a common issue is whether or not the notice was legally sufficient

437
00:49:22,480 --> 00:49:29,520
notice to increase the rent, for example. Another common landlord-tenant dispute is

438
00:49:29,520 --> 00:49:37,280
breach of lease by the landlord or the tenant. Lease are very common, so the lease have a lot of

439
00:49:37,280 --> 00:49:44,000
terms and conditions, and one of the disputes is that one of the landlord or the tenant reached

440
00:49:44,560 --> 00:49:51,120
one of the many terms in the lease. Another common landlord-tenant dispute is the lockouts.

441
00:49:51,760 --> 00:49:58,160
In lockout cases, tenants claim that they were locked out when the landlord shut off the water

442
00:49:58,160 --> 00:50:04,720
or electricity or removed their personal property, so that's a very common dispute as well.

443
00:50:05,520 --> 00:50:14,080
And also another dispute is security deposit disputes. These disputes involve landlord's return

444
00:50:14,720 --> 00:50:22,320
of residential's tenant's security deposit upon a move out. The issues usually involve the amounts

445
00:50:22,320 --> 00:50:29,760
deducted from the deposit for unpaid rent, claiming repair or damage caused by the tenant

446
00:50:29,760 --> 00:50:37,520
beyond normal wear and tear, and in some cases replacing furnishings that the landlord, for

447
00:50:37,520 --> 00:50:43,680
example, may claim the tenant took or damaged. Also, there may be issues as to the landlord's

448
00:50:43,680 --> 00:50:50,880
statement explaining any deductions along with the reminder of the security deposit and any receipt.

449
00:50:50,880 --> 00:50:57,200
There are laws and rules that provide specifically what the landlord's statement and what it must

450
00:50:57,200 --> 00:51:04,240
explain that it deducted, so there's this very common dispute. Let's continue with landlord-tenant

451
00:51:04,240 --> 00:51:12,480
disputes. Another one is retaliation. So these are disputes where the tenant claims that the

452
00:51:12,480 --> 00:51:19,680
landlord retaliated against the tenants for exercising their rights. For example, the tenant

453
00:51:19,680 --> 00:51:26,320
claims that the landlord tried to evict the tenant who asked for repairs or pointed out

454
00:51:26,320 --> 00:51:34,080
that a rent increase was unlawful, and that the tenant claims that the landlord retaliated by the

455
00:51:34,080 --> 00:51:40,960
tenant exercising those rights or making those complaints. Another dispute is reasonable

456
00:51:40,960 --> 00:51:46,880
accommodations for disabilities. These are actually very common. I had a lot of these when I was doing

457
00:51:46,880 --> 00:51:53,600
MSCs, and these disputes involve residential landlords providing reasonable accommodations

458
00:51:53,600 --> 00:52:00,400
that will allow tenants with disabilities the full use and enjoyment of their unit,

459
00:52:00,400 --> 00:52:06,800
of their apartment that they're renting. For example, this may involve a case where a landlord

460
00:52:07,360 --> 00:52:14,880
has a no-pets policy. Then a tenant requests a reasonable accommodation for a service for

461
00:52:14,880 --> 00:52:21,600
an emotional support animal. So the landlord has no tenants' policy and the apartment.

462
00:52:22,560 --> 00:52:30,320
The tenant claims, I have a disability that requires that I have an animal as an emotional

463
00:52:30,320 --> 00:52:35,920
support. So the question is whether the landlord will make the reasonable accommodation of the

464
00:52:35,920 --> 00:52:43,840
disability. What the support animal is, I've had many cases where the support animal was a snake,

465
00:52:43,840 --> 00:52:51,680
a miniature pig. I had one case that involved that. The common ones are dogs or cats. There could

466
00:52:51,680 --> 00:52:59,040
be birds, it could be fish. I mean, those are all the issues that involve like, is it a support animal?

467
00:52:59,040 --> 00:53:06,000
Do you have a documentation that needed to use? Are medical a requirement? So this is where a

468
00:53:06,000 --> 00:53:14,320
mediator can be very useful to sort out some of the issues and be respectful of the tenants and of

469
00:53:14,320 --> 00:53:20,960
the landlord's issues with regards to and interest as to how do they resolve that dispute so that that

470
00:53:20,960 --> 00:53:27,200
can be resolved in an app amicable and in a way in a manner that is agreeable to both parties.

471
00:53:28,160 --> 00:53:34,320
And the other landlord tenant and dispute is discrimination. These are disputes where the

472
00:53:34,320 --> 00:53:41,040
tenant is claiming that the landlords discriminated against the tenants based on the tenants' race,

473
00:53:41,040 --> 00:53:47,840
national origin, religion, sex, gender, sexual orientation, gender expression, gender identity,

474
00:53:47,840 --> 00:53:55,920
ancestry, disability status, a marital status, familial status, source of income such as section

475
00:53:55,920 --> 00:54:03,680
eight vouchers, veterans. And again, this is where the tenant claims that they were discriminated on

476
00:54:03,680 --> 00:54:10,160
the basis of one of those characteristics. And let's now talk about the next dispute and that's

477
00:54:10,160 --> 00:54:17,920
a very common is habitability. These disputes involve the landlord's failure to maintain a

478
00:54:17,920 --> 00:54:22,960
rental unit in a habitable condition. And what does that mean habitable condition? It means

479
00:54:22,960 --> 00:54:27,760
basically that the plumbing has to be in working order, the heating has to be in working order,

480
00:54:27,760 --> 00:54:34,880
electrical equipment, the floors, the stairs have to be usable and a habitable condition.

481
00:54:35,520 --> 00:54:40,720
Waterproofing may be an issue that makes sure that the windows lock properly, that the doors

482
00:54:40,720 --> 00:54:47,440
lock properly. There's pest control issues. So these types of disputes often involve city

483
00:54:47,440 --> 00:54:53,200
inspections for code violations. So if you get these kinds of disputes, you will see that there's

484
00:54:53,200 --> 00:55:00,320
often a city inspection that's the plaintiff, tenant brings and said, or that if it's a defendant

485
00:55:00,960 --> 00:55:08,000
says, you know, the city cited the landlord for this violation, which included, for example,

486
00:55:08,000 --> 00:55:14,640
that the heating was not working or the doors were not locking. So you will often see those as

487
00:55:14,640 --> 00:55:23,200
evidence in attempting to resolve this case. Now let's talk about unlawful detainers evictions.

488
00:55:24,960 --> 00:55:32,880
This basically dispute in evictions involves two kinds of evictions. One is called at fault

489
00:55:32,880 --> 00:55:40,720
evictions. This is where the landlord moves to evict a tenant because the tenant is allegedly

490
00:55:40,720 --> 00:55:50,320
at fault. And the second eviction is no fault evictions. These are where the landlord moves

491
00:55:50,320 --> 00:55:56,880
to evict the tenant through a no fault of the tenant. So let's look at the at fault evictions

492
00:55:57,440 --> 00:56:05,440
and what are the issues and the dispute that you may encounter. So the issues are that there's no

493
00:56:05,440 --> 00:56:09,440
payment of rent. So this is where the landlord is claiming the tenant is at fault because they

494
00:56:09,440 --> 00:56:15,440
didn't pay the rent that the tenant breach of material lease of the term of the lease.

495
00:56:16,400 --> 00:56:22,720
Another thing could be that there's a nuisance waste or using of the unit for unlaw purposes.

496
00:56:22,720 --> 00:56:27,920
What could that be? There's many, many different reasons that we get come across this.

497
00:56:27,920 --> 00:56:33,120
The lawful purposes could be a drug house, you're selling this, you're using it as a business,

498
00:56:33,120 --> 00:56:39,360
whatever other purpose, because most leases provide that it can only be used for lawful purposes.

499
00:56:39,920 --> 00:56:44,000
Either ones can include criminal activity committed on the premises or criminal activity

500
00:56:44,000 --> 00:56:51,280
that's directed at the owner or agents or the neighbor there. So that could be another

501
00:56:51,280 --> 00:56:58,160
at fault eviction. Another one is refusal to allow lawful entry to the landlord for inspections

502
00:56:58,160 --> 00:57:04,400
or repairs. At fault, at last, but not least includes refusal to execute a new lease containing

503
00:57:04,400 --> 00:57:12,560
similar terms. So these are a very brief look at the at fault evictions. Now let's look at the

504
00:57:13,760 --> 00:57:19,840
no fault evictions. The landlord here moves to evicted tenant without attributing fault

505
00:57:20,560 --> 00:57:27,440
and this will include where the owner wants to move in and to the unit where the tenant is currently

506
00:57:27,440 --> 00:57:34,560
occupying. The other one went me where the landlord intends to demolish or substantially

507
00:57:34,560 --> 00:57:42,720
remodel the unit. So the issuer in this one will be, is the unit really being substantially remodeled?

508
00:57:42,720 --> 00:57:49,520
What is substantially remodeling? Is it really being demolished? So those are issues that you

509
00:57:49,520 --> 00:57:56,560
will encounter in these particular cases. Now the other one is withdrawal of the unit from the

510
00:57:56,560 --> 00:58:01,600
rental market. This is where the landlord has decided, you know, I'm not going to rent this

511
00:58:02,480 --> 00:58:07,040
unit anymore. I'm just going to withdraw from the rental market. It's my property and I don't want

512
00:58:07,040 --> 00:58:14,000
to rent it anymore. And the other one is the owner complying with a government order or local law

513
00:58:14,000 --> 00:58:18,720
that requires that the tenant to vacate the unit. This could be many reasons. Eminent domain could

514
00:58:18,720 --> 00:58:25,360
be one. I do a lot of eminent domain mediations and the government entity who's taking the property,

515
00:58:25,360 --> 00:58:32,160
for example, may require that the landlord evict the tenants of the entity public agency may

516
00:58:32,160 --> 00:58:38,480
take over the property for public use. So there are many, many reasons, but these are the no fault

517
00:58:38,480 --> 00:58:47,440
evictions. Now let's look at unlawful detainers and let's look a little bit more at no fault

518
00:58:47,440 --> 00:58:53,280
evictions. The owner moving, as I said, is where the tenant disputes the legitimacy of their eviction.

519
00:58:53,280 --> 00:59:02,000
As I said before, the landlord claims it's evicting tenant for the owner for a move in and the owners

520
00:59:02,000 --> 00:59:05,920
and actually this I wanted to bring this up again because it could be not just that the owner

521
00:59:05,920 --> 00:59:11,680
himself or herself, it could be that the owner's spouse, domestic partner, child, grandchild, parent

522
00:59:12,240 --> 00:59:16,800
intends to move in the unit. And this is a dispute as to whether the landlord is acting in good

523
00:59:16,800 --> 00:59:21,840
faith and complying with all the state and local requirements. And again, as I mentioned before,

524
00:59:21,840 --> 00:59:27,920
as to the substantial remodel is the dispute is here involved whether the landlord's compliance

525
00:59:27,920 --> 00:59:31,680
with all state and local requirements when evicting a tenant to conduct this sort of

526
00:59:31,680 --> 00:59:39,920
statutory model because the landlord is at this point maybe the tenants are maybe questioning

527
00:59:39,920 --> 00:59:45,840
that the landlord's motive and the landlord claims, for example, that the repairs meet the

528
00:59:45,840 --> 00:59:51,440
definition of substantial remodel and the tenant discrees and claims the repairs are cosmetic,

529
00:59:51,440 --> 00:59:59,200
that they're not substantial. So I let me now go over some of the unique factors in settling

530
00:59:59,200 --> 01:00:06,400
UD cases. So you unlawful detainer cases have very unique, they have their own timeline.

531
01:00:07,040 --> 01:00:12,160
I did many for more of a commercial type when I had my limited, I'm sorry, my independent

532
01:00:12,160 --> 01:00:18,240
calendar in court at Moss and they have they have a whole different time on then a regular civil case.

533
01:00:18,240 --> 01:00:24,960
For example, unique factors is settling UD cases. First one is really the expedited timeline. As I

534
01:00:24,960 --> 01:00:31,120
said, tenants have five days to respond to a complaint, five days. That's a very short time.

535
01:00:31,120 --> 01:00:37,760
That's the application civil case. They have a lot more time there. And in UD case, the trial

536
01:00:37,760 --> 01:00:42,960
by statute may occur within 20 days. Sorry, remember when I used to get these cases,

537
01:00:42,960 --> 01:00:48,640
I was at a red alert, you know, trial, I need to set it within 20 days, as opposed to the long

538
01:00:48,640 --> 01:00:55,120
and protracted civil proceedings. So those are unique, the expedited timeline could be good

539
01:00:55,120 --> 01:01:02,160
for settling and bad, and that those are by statute. So the participant will be very mindful.

540
01:01:02,720 --> 01:01:08,480
And the new trust are very mindful of the expedited timeline. Another unique factor is the judgment.

541
01:01:08,480 --> 01:01:14,400
The landlord may opt for a stipulated judgment, but the tenants may prefer a settlement agreement

542
01:01:14,400 --> 01:01:21,040
to avoid negative credit impact. This is very important because the tenant doesn't want negative

543
01:01:21,040 --> 01:01:28,960
credit impact if you have a judgment. So they may, you may structure the settlement agreement so that

544
01:01:28,960 --> 01:01:36,640
it takes care of the landlords and the tenants conflicting sometimes needs.

545
01:01:36,640 --> 01:01:45,040
Now, the other issue in settling case, these UD cases is that tenants prefer to seal

546
01:01:45,760 --> 01:01:52,720
the files to prevent discovery or future background checks. So you have to negotiate that. You seal

547
01:01:52,720 --> 01:01:57,920
the file, not seal the file. How do you seal it? Why would you? Why would you not? So those are

548
01:01:57,920 --> 01:02:04,880
issues that are unique to UD. In UD cases, often the parties bear their own attorney's peace, often.

549
01:02:04,880 --> 01:02:09,520
Not necessarily, but that could be, I mean, the lease, for example, if the lease provides

550
01:02:09,520 --> 01:02:15,120
at the prevailing party, pays for the fees, then you can negotiate it. And as I said before,

551
01:02:15,120 --> 01:02:21,200
the beauty of a negotiated agreement is that you can agree on anything you want.

552
01:02:21,200 --> 01:02:28,240
One party can bear it, the other party can. So that's unique to UDs. Now, the last but not

553
01:02:28,240 --> 01:02:35,360
least of unique factors is the move out timing. This is a big issue in UD cases. When is the

554
01:02:35,360 --> 01:02:39,760
tenant, if there's an agreement to move out, when is the tenant going to move out? How is the move

555
01:02:39,760 --> 01:02:44,320
out going to be? Who's going to do the inspection after the move out? What happens is there was

556
01:02:44,320 --> 01:02:48,880
damage after the move out. So there's a conflict between the landlord and the tenant prior. Is

557
01:02:48,880 --> 01:02:53,920
the landlord wants the tenant out of there as soon as possible? The tenant needs, may need,

558
01:02:53,920 --> 01:03:01,280
time to find a new place, find a new business if it's a commercial dispute. So the move out

559
01:03:01,280 --> 01:03:07,120
date is important. And it could be a way to negotiate less money, more money, depending

560
01:03:07,120 --> 01:03:12,320
on when the move out date. So that's really a big issue in UD cases in settling.

561
01:03:13,680 --> 01:03:19,920
Now, in conclusion, your unlawful detainer cases, it's really mediations really play a crucial

562
01:03:19,920 --> 01:03:26,080
role in resolving these disputes because they facilitate the dialogue, understanding and

563
01:03:26,080 --> 01:03:31,440
compromise between landlords and tenants in a very streamlined timeline that is provided.

564
01:03:32,000 --> 01:03:35,680
Often they lead to solutions that are, I guess, more satisfactory and less

565
01:03:35,680 --> 01:03:39,280
adversarial than the court rule issues the parties can craft like their own agreements

566
01:03:40,080 --> 01:03:43,600
on that things that would take care of some of the tenants and the landlord's wishes.

567
01:03:43,600 --> 01:03:49,920
And may, for example, now allow a judge. So those are the conclusions on unlawful detainer.

568
01:03:49,920 --> 01:03:56,720
Now let's go into another type of dispute and you will encounter in me issues,

569
01:03:56,720 --> 01:03:59,680
which is the customer merchant disputes.

570
01:04:00,960 --> 01:04:07,360
Taking typical facts, patterns and disputes between customers and merches may include warranty

571
01:04:07,360 --> 01:04:12,720
claims, for example. These are for replacement of defective products that are specifically

572
01:04:12,720 --> 01:04:18,880
permitted under the seller's warranties. For example, buying a washing machine that does not work.

573
01:04:18,880 --> 01:04:25,520
The buyer may make a claim under the warranty. And there's issues on that is whether the claim

574
01:04:25,520 --> 01:04:32,480
was made timely was the product really defective. The next one is the product defective. The lemon

575
01:04:32,480 --> 01:04:37,440
law claims products alleged to be defective. Now they're going to talk about lemon law as an

576
01:04:37,440 --> 01:04:44,160
applies to automobiles. They have a whole different that's a whole different statutory gods and

577
01:04:44,160 --> 01:04:48,160
those cases usually have their own mediation program fact that's another program where

578
01:04:49,040 --> 01:04:55,040
they have a very robust mediation program. But under merchant and customer disputes,

579
01:04:55,040 --> 01:05:01,520
you can have defective products. Another very common customer merchant dispute is

580
01:05:01,520 --> 01:05:08,640
service dissatisfaction. Billing customers, for example, more than once for a single item. Have

581
01:05:08,640 --> 01:05:12,960
you ever looked at your bill and you said, oh, they billed me for the same thing twice. You've

582
01:05:12,960 --> 01:05:18,560
been going to the supermarket and they can double bill for something. Failing to process a trach

583
01:05:18,560 --> 01:05:25,360
section, for example, and a timely matter. That's common. How about sending an order to an incorrect

584
01:05:25,360 --> 01:05:32,080
address? Let's say one of the big buyers Amazon sends the order to an incorrect address and maybe

585
01:05:32,080 --> 01:05:37,040
this was something expensive and important and there's this dissatisfaction in the service.

586
01:05:38,080 --> 01:05:44,240
Delivering an item that doesn't match what the customer order. Sometimes some vendors online

587
01:05:44,240 --> 01:05:50,320
and very easy to return it. Others there isn't. So these are all service dissatisfaction disputes

588
01:05:50,320 --> 01:06:00,480
that sometimes it becomes so major that the buyer, the consumer files a suit or a claim

589
01:06:00,480 --> 01:06:07,680
and you need a mediator to resolve that. Another common customer merchant dispute is payment disputes.

590
01:06:08,560 --> 01:06:15,040
These are payment disputes typically happen after a billion errors or there's a fraudulent

591
01:06:15,040 --> 01:06:20,800
transaction or a non-delivery of good items. Somebody stole your credit card and they

592
01:06:21,360 --> 01:06:26,480
blend up and bought a car or bought something really expensive or not so expensive, but they

593
01:06:27,040 --> 01:06:32,400
was a fraudulent transaction. You're trying to work with the merchant to try to,

594
01:06:33,120 --> 01:06:38,720
in the credit card, to try to work with that dispute. So in conclusion, arbitration and

595
01:06:38,720 --> 01:06:45,440
mediation are very effective in customer and merchant disputes. Sometimes these services provide

596
01:06:45,440 --> 01:06:50,400
already for arbitration or mediation in the contract when you sign like a credit card or you

597
01:06:50,400 --> 01:06:56,480
buy something or warranty claim. So they're written into the ADR is written into it and

598
01:06:57,040 --> 01:07:03,440
of course ADR like in the other disputes that provide a quicker, more cost-effective and less

599
01:07:03,440 --> 01:07:09,360
formal resolution process, again benefiting both the consumer and the businesses by preserving

600
01:07:09,360 --> 01:07:17,280
relationships and reducing litigation cost helping everybody. Next we're going to go into

601
01:07:17,280 --> 01:07:22,880
neighbor disputes. These are actually quite fun. Fun in the sense that they're very creative

602
01:07:22,880 --> 01:07:29,760
disputes between the neighbors. I handle many of these and the common scenarios in neighbor disputes

603
01:07:29,760 --> 01:07:36,960
are noise coup planes. You would think that this would not be an issue, but it is. Your neighbor

604
01:07:36,960 --> 01:07:45,520
plays the drums at five in the morning and you want to sleep and it's a complaint that you've

605
01:07:45,520 --> 01:07:50,240
been dealing with. It's driving you bananas. So there's a noise dispute. They're having a loud

606
01:07:50,240 --> 01:07:56,080
parties every weekend. Property boundaries. These are very, very common and you often involve

607
01:07:56,080 --> 01:08:00,720
issues where there's appraisers involved so that you can determine the property boundaries.

608
01:08:01,840 --> 01:08:08,480
They're very interesting because they involve a review of property records and going back to,

609
01:08:08,480 --> 01:08:14,800
for example, when the buyers bought the property, it was that fence already on the other side or

610
01:08:14,800 --> 01:08:22,160
not. So these are people, neighbors disputing where the property longness and you would say,

611
01:08:22,160 --> 01:08:27,760
why is there a dispute? Because there should be a appraisal property report, an S-break for it that

612
01:08:27,760 --> 01:08:33,520
specifically provides where the line is. But sometimes it's not clear and sometimes when they

613
01:08:33,520 --> 01:08:38,720
bought it, the building already was intruding into that property. So property by-route disputes

614
01:08:38,720 --> 01:08:45,920
involve sometimes very complicated issues. Share property maintenance where the both parties,

615
01:08:45,920 --> 01:08:53,440
neighbors, I'd say, agree to maintain the particular area that's shared by both and enjoyed by both

616
01:08:53,440 --> 01:08:57,760
because of the location of the parties. And one neighbor then decides, I'm not going to pay for

617
01:08:57,760 --> 01:09:04,320
the gardening or the maintenance of that property and they disagree on that. This could be in

618
01:09:04,320 --> 01:09:10,800
commercial properties as well where there's common areas where they agree to maintain a

619
01:09:10,800 --> 01:09:16,160
certain area and it's not maintained to the satisfaction of one or the others. Tree disputes.

620
01:09:17,120 --> 01:09:23,120
Excellent, excellent a way to train mediators is on tree disputes. I mean, the issues, you're

621
01:09:23,120 --> 01:09:29,040
going back to property to your property 101 and there's a big tree on one side, but the branches

622
01:09:29,680 --> 01:09:34,480
go on the other side of the fence and the other neighbor says, you cut the tree down, it's not

623
01:09:34,480 --> 01:09:40,640
your property. So these are very, very interesting, the tree disputes. Then you also even could have

624
01:09:40,640 --> 01:09:46,080
where the tree is protected by city ordinances. I've had cases like that. The tree is protected by

625
01:09:46,080 --> 01:09:49,680
city ordinance. Can you cut it? Can you not cut it? Do you have to get permission from the city?

626
01:09:50,240 --> 01:09:57,920
Who bears the cost of trimming it, cutting it, pruning it, so replacing it, putting it someplace

627
01:09:57,920 --> 01:10:04,400
sells. So these are disputes that could be quite complicated as well. Visual nuisance.

628
01:10:04,400 --> 01:10:13,360
Let's say you're displaying art that is offensive to your neighbor. Is it annuances? Is it not

629
01:10:13,360 --> 01:10:20,320
annuances? Very interesting issue. Children's behavior is a common one. One neighbor has kids

630
01:10:20,320 --> 01:10:27,280
who the kids are unruly, loud and obnoxious maybe. The other party is a writer I had then and they

631
01:10:27,280 --> 01:10:33,920
need quieted peace and they're meditating or in their zen place while the kids are running

632
01:10:33,920 --> 01:10:39,200
the mat around. Is that an issue that could be resolved? That's issues that involve a lot of

633
01:10:39,200 --> 01:10:46,560
emotional behavior by the party. Construction in one party. One party is remodeling their house.

634
01:10:46,560 --> 01:10:52,960
The other is next door and they're getting all the dust and all the noise from the construction.

635
01:10:52,960 --> 01:10:59,920
These are very common where you have to go into the local city ordinances. What do the city ordinances

636
01:10:59,920 --> 01:11:04,800
provide as to when construction can start? Believe it or not, you have to go to the local cities

637
01:11:04,800 --> 01:11:10,480
and they are cities that provide. You cannot start construction between, you know, by earlier than

638
01:11:10,480 --> 01:11:15,360
six o'clock and no later than 10 p.m. And the neighbor says, well, they're starting construction

639
01:11:15,360 --> 01:11:19,520
early in the morning, waking me up. Well, that's a violation of the city code. May or may not be.

640
01:11:19,520 --> 01:11:25,280
So the parties can agree. Let's, because of the nature of this, you can agree on when the construction

641
01:11:25,280 --> 01:11:29,840
will start, how and all that. So there's a lot of details that need to be talked about. Eastmans.

642
01:11:31,120 --> 01:11:37,120
Similar to property boundaries, Eastmans can be very interesting and they involve again

643
01:11:37,920 --> 01:11:42,000
reviewing a property records, going back to where somebody bought the property. Didn't even know

644
01:11:42,000 --> 01:11:48,000
there was an Eastman. That one party can walk through the front of the property to access a

645
01:11:48,000 --> 01:11:56,320
landlock land, for example. So there's a lot of creative ways to approach this, to resolve this,

646
01:11:56,960 --> 01:12:02,400
because you can redo the Eastman and rerecord it to the satisfaction of the parties, because maybe

647
01:12:02,400 --> 01:12:07,600
the conditions of the property had changed. They want to do the Eastman so that it doesn't disrupt

648
01:12:07,600 --> 01:12:13,600
a tree or an axis to one of the properties. Fence, erections, demolition and maintenance.

649
01:12:13,600 --> 01:12:19,360
That's very common. A neighbor friends, a neighbor, let's call it a good neighbor fence, if you may,

650
01:12:19,920 --> 01:12:24,080
where one neighbor constructs a fence that on their side is very pretty, on the other side,

651
01:12:24,080 --> 01:12:29,440
it's not so pretty. So the neighbors can agree on how the material, the design of that fence,

652
01:12:29,440 --> 01:12:35,920
because you're both going to share that. So that takes a lot of calm and patience to resolve those

653
01:12:35,920 --> 01:12:45,600
issues. Privacy, that is an issue that has really been exploding in the last maybe five years,

654
01:12:45,600 --> 01:12:51,600
10 years with ring cameras or any cameras that neighbors have. The cameras pointed at the other

655
01:12:51,600 --> 01:12:57,360
neighbor's house, and there's a dispute that you're invading my property. I had one case where the

656
01:12:57,360 --> 01:13:02,640
camera was pointed towards the neighbor, and the neighbor claimed it went right into the big

657
01:13:02,640 --> 01:13:10,400
window so it really was looking into their house. And we had to look at how the property was built,

658
01:13:10,400 --> 01:13:14,800
and could you place the camera some other way? What really, why is the neighbor doing that?

659
01:13:15,360 --> 01:13:21,760
Is there issue with crime or maybe can you redirect the camera for more privacy?

660
01:13:21,760 --> 01:13:27,840
Those are very factually intensive issues that are very interesting, but they're much more

661
01:13:27,840 --> 01:13:33,440
prevalent now with the cameras. Animals, another dispute between neighbors is common.

662
01:13:34,080 --> 01:13:40,320
Barking dogs is the most common. You have a dog that's always running on the other side,

663
01:13:40,320 --> 01:13:47,600
or tamed domesticated lions, that was my favorite one I had. Is that in violation of any code?

664
01:13:47,600 --> 01:13:53,680
Is it safe? Roosters, I love that one, where people have chickens or roosters. Is that first

665
01:13:53,680 --> 01:13:58,000
one violation of the code? The neighbor complains, it wakes them up. The other one neighbor thought it

666
01:13:58,000 --> 01:14:01,680
was a great thing that didn't need an alarm because the rooster would go off every day

667
01:14:01,680 --> 01:14:06,720
at the same time at six o'clock in the morning. So those are, I call them fun disputes because

668
01:14:06,720 --> 01:14:15,440
it's really factually intensive. Now let's look at the most common types of neighbor disputes.

669
01:14:15,440 --> 01:14:25,760
This is pursuant to find laws survey that was done in 29. So according to this survey in 2019,

670
01:14:25,760 --> 01:14:36,800
the neighbor disputes are most often triggered by, noise is 48% of all disputes. Not surprising.

671
01:14:36,800 --> 01:14:43,200
So whether it be from a Rackles late night party or maybe different sleep schedules that result

672
01:14:43,200 --> 01:14:49,760
in one neighbor waking up the other, noise is apparently the number one way to annoy your neighbor.

673
01:14:51,440 --> 01:14:58,400
Now the other one that's in there is pets and animals, 29% according to the survey.

674
01:14:59,200 --> 01:15:04,320
Pets and animals can be tricky to deal with directly since it is the animal that is causing

675
01:15:04,320 --> 01:15:09,680
the problem and not the owner. But many times the issue stems from the owner's failure to

676
01:15:09,680 --> 01:15:18,320
properly handle, control or train the animal. The 21% is next to children's behavior.

677
01:15:19,600 --> 01:15:26,160
Much like pets, children run into onto your property being loud or defecating your property

678
01:15:26,160 --> 01:15:31,440
or destroying your property can often be the result of their parents. Your adult neighbors,

679
01:15:31,440 --> 01:15:36,560
so not properly looking after them. State laws may under certain circumstances hold kids' parents

680
01:15:36,560 --> 01:15:42,400
liable for damages. So you have to look carefully at what is exactly the conduct,

681
01:15:43,200 --> 01:15:53,760
is it a lawful, who's liable, parents or not. And next is 18% is visual nuisance

682
01:15:54,720 --> 01:16:02,720
of the property's appearance. Many eyes are such as unkept lawns, offensive signs,

683
01:16:02,720 --> 01:16:09,440
inoperable cars parked on your lawn, overflowing trash cans that can lead to

684
01:16:09,440 --> 01:16:20,080
error between neighbors. So this is the visual nuisance. And 17% is property boundaries.

685
01:16:20,080 --> 01:16:26,320
In these types of disputes, neighbors often have misconceptions about where their property begins

686
01:16:26,320 --> 01:16:31,280
and ends. Usually these disputes, as I said before, involve the neighbor building

687
01:16:31,280 --> 01:16:38,720
improvements such as a fence or plumbing a couple of inches or feet into the other neighbor's

688
01:16:38,720 --> 01:16:44,080
property line. And these cases often involve appraisals and title insurance.

689
01:16:45,440 --> 01:16:52,160
So I found this survey very interesting. It's 2019. I'm sure there's probably a newer one now.

690
01:16:52,880 --> 01:17:00,160
But just remember the number one way to annoy your neighbor is making noise and annoying that.

691
01:17:00,160 --> 01:17:07,200
Let's now talk about special considerations when mediating neighbor disputes,

692
01:17:07,920 --> 01:17:15,360
when dealing with neighbor disputes. These are highly, highly emotional disputes,

693
01:17:16,080 --> 01:17:23,520
because you have two people that live next to each other and neither one is going to move,

694
01:17:23,520 --> 01:17:30,400
according to their stance. So they have to put up with each other, whether they like each other

695
01:17:30,400 --> 01:17:37,920
or not. So they're very emotional. So as a mediator, your challenge is to maintain

696
01:17:38,880 --> 01:17:44,960
civility between the parties due to this ongoing living in close proximity,

697
01:17:45,600 --> 01:17:50,800
is how are you going to facilitate an agreement between two people who have been

698
01:17:50,800 --> 01:17:57,360
in annoying or tormenting each other for maybe months or years. And they finally had the file

699
01:17:57,360 --> 01:18:05,280
lawsuit. So there's a lot of background and emotion between the conduct of these two individuals.

700
01:18:06,800 --> 01:18:15,040
So often the dispute resolution here does not hinge on money or if you're going to pay me this.

701
01:18:15,040 --> 01:18:20,960
It's not money is not really the motivator, financial gains or losses, but it's kind of a sense

702
01:18:20,960 --> 01:18:30,480
of fairness, of an equitable outcome. You've been doing this to me for so long, we used to get along

703
01:18:30,480 --> 01:18:36,240
as that comes a lot of emotions of relationships like everything was fine until the sun ruled

704
01:18:36,240 --> 01:18:42,960
in and started doing this and that. So it gives a very complicated debauchee. So it's important

705
01:18:42,960 --> 01:18:49,840
for mediators to consider the future relationship between the parties and how to very gingerly

706
01:18:49,840 --> 01:19:00,000
navigate those conflicting issues and emotions so that they can maintain stability and learn to get

707
01:19:00,000 --> 01:19:05,280
along as neighbors because we're going to see each other every day picking up the newspaper,

708
01:19:05,280 --> 01:19:10,320
driving in and out of the house. So they're very challenging sometimes to resolve.

709
01:19:10,320 --> 01:19:17,920
Next we're going to talk about personal injury case. Personal injury cases are the motor vehicle

710
01:19:17,920 --> 01:19:24,000
accidents are the leading source of personal injury cases, especially Los Angeles where we all drive

711
01:19:24,000 --> 01:19:31,520
so much. And these include car accidents, motorcycle accidents, trucking accident, pedestrian

712
01:19:31,520 --> 01:19:37,680
accidents, and they often involve significant injuries and damages, sometimes involving expert

713
01:19:37,680 --> 01:19:47,200
opinions on damages, our injuries, the liability, the manufacturing of the vehicle, for example,

714
01:19:47,200 --> 01:19:53,120
that could be an issue. The other type of personal injury case briefly discusses the medical

715
01:19:53,120 --> 01:19:59,920
malpractice. And these cases arise where healthcare professionals deviate from the standard of care

716
01:19:59,920 --> 01:20:06,320
resulting in harm to the patient. In some examples, for example, surgical errors or mistakes were made

717
01:20:06,320 --> 01:20:14,720
during the surgery. NIST another one is misdiagnosis, NIST diagnosis for delayed diagnosis, where the

718
01:20:14,720 --> 01:20:22,000
patient or the plaintiff in this case is alleging incorrect or delayed treatment. These involve

719
01:20:22,000 --> 01:20:32,160
experts opinions as to the alleged malpractice of the healthcare professional. So let's talk about

720
01:20:32,160 --> 01:20:40,880
the most common personal injury cases. We have the wrongful death, bicycle accidents, dog bites,

721
01:20:40,880 --> 01:20:47,200
and premise liability. Now, in the wrongful death cases arise when an individual loses their life

722
01:20:47,200 --> 01:20:54,320
due to the alleged negligence of another. These cases can be initiated by the surviving spouse,

723
01:20:54,320 --> 01:21:00,320
children, parents, or of the deceased. And they're highly emotional cases, as you can imagine,

724
01:21:00,320 --> 01:21:06,800
because it involves the loss of a loved one. So, and of course, they also involve a lot of experts.

725
01:21:08,000 --> 01:21:14,000
Bicycle accident cases. Now, Californian is one of the top states for bicycle accidents losses,

726
01:21:14,560 --> 01:21:21,120
accounting for a significant portion of the 2% of cases filed each year.

727
01:21:21,680 --> 01:21:27,920
California is in the fourth most cycle-friendly state in the United States.

728
01:21:27,920 --> 01:21:35,520
The California Active Transportation Safety Information pages reports that Los Angeles County

729
01:21:35,520 --> 01:21:45,200
is one of the counties with the highest bicycle accidents fatalities. Wow, that's a lot. LA,

730
01:21:45,200 --> 01:21:54,240
one of the counties with the highest bicycle accident fatalities. In 2022, there were 172 bicycle

731
01:21:54,240 --> 01:22:01,760
accidents fatalities in Los Angeles. I'm sure you could get the stats for the most recent year,

732
01:22:01,760 --> 01:22:09,520
2023, 2024. So, although Los Angeles is one of the friendliest, we also have the most fatalities.

733
01:22:10,320 --> 01:22:16,400
And of course, then you'll have the most losses involving those. Dog bite cases is the next

734
01:22:16,400 --> 01:22:22,720
person injury case that's very common. Dog bites are another common type of personal injury,

735
01:22:22,720 --> 01:22:29,360
and they may involve the issues of personal injury law, or regulations regarding animal

736
01:22:29,360 --> 01:22:34,560
ownership and control, and the claims may involve serious injury, including disfigurement.

737
01:22:35,280 --> 01:22:43,760
So, these could be very serious matters as well. And last is the premise liability. Slip and fall

738
01:22:43,760 --> 01:22:49,840
accident cases involving the conditions of the property, like the floor was too slippery.

739
01:22:49,840 --> 01:22:56,800
Clip and fall accidents often occur on up to stairwells, wet floors, or broken sidewalks.

740
01:22:57,360 --> 01:23:02,000
For example, if it's a sidewalk controlled by the public entity, then it will be

741
01:23:02,000 --> 01:23:07,520
a suit against the public entity, whereas a condition, dangerous condition of public property,

742
01:23:07,520 --> 01:23:13,920
for example. So, you have to determine who controls, maintains that, the particular premise,

743
01:23:13,920 --> 01:23:21,440
stairwells, to deal with premises liability. Now, let's continue with most common personal

744
01:23:21,440 --> 01:23:28,160
injury cases. Again, another one is product liability cases. Product liability cases involve

745
01:23:28,160 --> 01:23:34,400
manufacturing defects and or design defects that cause individuals to suffer serious bodily

746
01:23:34,400 --> 01:23:40,800
injury or death as a result of using a product. Another common allegation is that the manufacturer

747
01:23:40,800 --> 01:23:46,960
failed to provide an adequate warning for a product, and this failure to warn can lead to liability.

748
01:23:47,840 --> 01:23:52,960
And in this case, you have every party in the chain of distribution can be defended in these cases.

749
01:23:52,960 --> 01:23:58,080
So, you could have a case that involves a lot of different parties, the manufacturer or the seller,

750
01:23:58,080 --> 01:24:04,720
the distributor. So, there could be a lot of defendants in this type of case. Another very

751
01:24:04,720 --> 01:24:11,680
common or so injury cases, ride sharing cases. Ride sharing cases have become increasingly common,

752
01:24:11,680 --> 01:24:19,040
given the surge in popularity of services like Uber and Lyft. And these cases may involve issues

753
01:24:19,600 --> 01:24:23,840
dealing with complex issues, sometimes with negligence, insurance, and sometimes criminal

754
01:24:23,840 --> 01:24:31,760
loss. So, these are more and more common, both in criminal realm and in the civil realm.

755
01:24:31,760 --> 01:24:40,000
Now, we're going to go into family law disputes. Let's discuss family law disputes. And in this case,

756
01:24:40,640 --> 01:24:46,720
we're going to talk about divorces, the solution of domestic partnerships, child custody,

757
01:24:47,360 --> 01:24:55,440
spousal support, alimony, and child supports. Now, let's look at the family law filings in

758
01:24:55,440 --> 01:25:04,400
the LA Superior Court for the fiscal year 2021-2022. So, you can have an idea of the body of cases that

759
01:25:04,400 --> 01:25:12,560
are we dealing with. Family law dissuasion is in that fiscal year, it was 29,072, child support,

760
01:25:12,560 --> 01:25:22,560
15,622, domestic violence and harassment, 30,268, parent adage is 60,135, and family law other,

761
01:25:22,560 --> 01:25:30,880
this is miscellaneous, is 10,386, and adoption is 278. So, this kind of gives you a glimpse as to the

762
01:25:30,880 --> 01:25:39,360
numbers in family law, at least for that particular fiscal year. There are other statistics, and please

763
01:25:39,360 --> 01:25:45,760
go to the court's website for other stats that you may be interested in. Let's talk about

764
01:25:45,760 --> 01:25:52,560
a divorce dissolution of domestic partnership. Divorce mediation enables here the parties to

765
01:25:52,560 --> 01:25:58,800
decide how to end their marriage or domestic partnership in a peaceful and confidential manner.

766
01:25:59,360 --> 01:26:04,480
Couples work with a mediator to discuss some disagreements and hopefully reach a mutually

767
01:26:04,480 --> 01:26:09,600
agreeable settlement agreement. Mediators are very important in these types of dissolution,

768
01:26:09,600 --> 01:26:16,400
again because the issues are very emotional and the mediator can be very, very useful too. Well,

769
01:26:16,400 --> 01:26:22,640
some of the emotions and assist the parties in resolving a highly emotional dispute.

770
01:26:24,640 --> 01:26:30,880
Child custody issues. Child custody mediators often help parties develop a plan for a child

771
01:26:30,880 --> 01:26:38,400
to spend time with both parents. Now, the primary focus in these disputes is to make sure that the

772
01:26:38,400 --> 01:26:45,360
child maintains a healthy relationship with both parents. And, you know, one parent wants one thing,

773
01:26:45,360 --> 01:26:51,280
the other parent wants another thing, and the parents disagree sometimes as to what is in the

774
01:26:51,280 --> 01:26:57,440
best interest of the child. Mediation helps parents create a parenting plan that works best for the

775
01:26:57,440 --> 01:27:04,640
child and their unique needs. A lot of times you have to refocus the parents as to the unique needs

776
01:27:04,640 --> 01:27:12,000
of the child, not of the parent. So a parenting plan will deal with things like how the parents

777
01:27:12,000 --> 01:27:17,760
will make the important decision for the child, such as health care, education called legal custody,

778
01:27:17,760 --> 01:27:23,200
and the planner will also describe who the children will live with most of the time,

779
01:27:23,200 --> 01:27:30,160
call physical custody, and how the child spends time with each parent, parenting, time, or visitation.

780
01:27:30,160 --> 01:27:36,160
The LA Superior Court has a child custody mediation program provided at no cost through the Family

781
01:27:36,160 --> 01:27:41,600
Court Services Department. So in this case, mediation gives the parents the opportunity to

782
01:27:41,600 --> 01:27:46,880
discuss with a neutral mental health professional if needed, what is the best plan for the child.

783
01:27:47,360 --> 01:27:54,240
Let's go over some of the parenting plan, things that it will deal with that will make important

784
01:27:54,240 --> 01:27:59,600
decisions for the child, such as health care and education. Some of the issues you also will

785
01:27:59,600 --> 01:28:05,360
deal with is visitation schedule, school issues, arrangement for summer, winter holidays, spring

786
01:28:05,360 --> 01:28:11,040
breaks, where's the child going to spend time with which parent, communication between the parents,

787
01:28:11,040 --> 01:28:18,000
you have to establish how the parents will communicate, email, text, through and somebody

788
01:28:18,000 --> 01:28:23,920
may need to monitor that, how the kids will participate in extracurricular technique style.

789
01:28:23,920 --> 01:28:31,120
One parent wants the child to practice piano, the other one wants the child to go practice basketball.

790
01:28:31,120 --> 01:28:35,680
So those are the things you have to do with health care arrangements and of course procedures for

791
01:28:35,680 --> 01:28:40,000
post-judging modifications. This is important so the parents can reoccur circumstances change.

792
01:28:40,640 --> 01:28:46,480
Let's agree now how we will revise the modifications to good judgment.

793
01:28:48,320 --> 01:28:53,200
Now child support, the mediator can facilitate an agreement on child support amount,

794
01:28:53,200 --> 01:28:58,400
the duration, the manner of payments and other issues that may be discussed at the

795
01:28:58,400 --> 01:29:03,920
mediation may include medical expenses, life insurance, health insurance, the division of

796
01:29:03,920 --> 01:29:10,240
future higher education, who's going to pay for college? What if the child, if you discuss that

797
01:29:10,240 --> 01:29:15,200
the child's going to a four-year college and the child decides to go to a trade school

798
01:29:15,920 --> 01:29:22,480
and potentials again for modifying the inward. Now we're going to move to most common business

799
01:29:22,480 --> 01:29:29,440
disputes. I'm going to briefly discuss business disputes. The most common claim in business

800
01:29:29,440 --> 01:29:35,840
litigation is undoubtedly breach of contract. This could be a breach of contract between

801
01:29:36,560 --> 01:29:40,560
two businesses, between a business and the customer, a business and the supplier.

802
01:29:42,000 --> 01:29:46,160
Often breach of contract claims include disputes over payment, delivery of goods,

803
01:29:46,160 --> 01:29:55,840
delivery of services. These kind of contracts could be a lease, it could be a sale of products

804
01:29:55,840 --> 01:30:02,480
agreement, a vendor agreement and any other number of type of businesses where there's a dispute as

805
01:30:02,480 --> 01:30:07,520
to an allegation of a breach of the terms and conditions of that agreement.

806
01:30:07,520 --> 01:30:16,240
Now, another very common business dispute is the partnership disputes.

807
01:30:16,800 --> 01:30:22,400
Delved with a lot of partnership disputes. This is a dispute where the often involves

808
01:30:22,400 --> 01:30:28,240
disagreements between partners about the management of the business, the leadership

809
01:30:28,240 --> 01:30:35,360
of the partnership, like who's leading it, they're not leading it correctly, they're absent,

810
01:30:35,360 --> 01:30:40,960
or they're the other partners disagree as to the leadership of the partnership.

811
01:30:41,680 --> 01:30:47,760
Another issue they often dispute is how the profits were divided, was the accounting correctly,

812
01:30:47,760 --> 01:30:54,560
was the books open to the other partners to see how the profits or net distributions were

813
01:30:55,200 --> 01:30:59,920
resolved to me as the partners. Another dispute could be negligent by a partner,

814
01:30:59,920 --> 01:31:06,240
that one of the partners negligent did XYC that damaged the business or each a fiduciary duty

815
01:31:07,040 --> 01:31:12,480
where one partner is not acting in the best as a fiduciary to the other partners. Misappropriation

816
01:31:12,480 --> 01:31:19,520
of funds, one partner took too many funds and used to perp personal needs, one partner used

817
01:31:19,520 --> 01:31:27,040
the partnership business funds or their personal trips or bought a fancy car, fancy boat,

818
01:31:27,040 --> 01:31:35,680
lessons and partnerships disputes. So those are all very common disputes involving businesses.

819
01:31:36,800 --> 01:31:44,000
Now we're going to move to the most common employment disputes. I'll discuss some of the

820
01:31:44,000 --> 01:31:50,320
most common disputes there are many, but these are the big ones. Rawful termination, discrimination,

821
01:31:50,320 --> 01:31:55,840
whistleblower. Rawful termination, these claims deal with employees alleging that they were

822
01:31:55,840 --> 01:32:03,200
terminated, released, laid off or fired in violation of some law, usually discrimination

823
01:32:03,200 --> 01:32:10,240
or whistleblower statutes. Now employment discrimination claims include discrimination

824
01:32:10,240 --> 01:32:18,160
based on rape, sexual orientation, gender, national origin, religion, age, discrimination claims can

825
01:32:18,160 --> 01:32:23,520
include harassment and who are the defendants in this case? The defendants are usually the employer,

826
01:32:23,520 --> 01:32:31,520
supervisors or sometimes coworkers. A very common type of discrimination against individuals

827
01:32:31,520 --> 01:32:39,520
is disability discrimination. This is including the failure to properly reasonably accommodate

828
01:32:39,520 --> 01:32:44,960
a disability. And I discussed this briefly before in the context of unlawfully chambered.

829
01:32:44,960 --> 01:32:51,440
And employment is where an employee brings a doctor's note and says, I need this accommodation

830
01:32:51,440 --> 01:32:57,040
so I can perform my duties and dispute about that. Another common claim of discrimination is

831
01:32:57,040 --> 01:33:03,360
on the basis of age. For example, the ADA prohibits employers from discriminating against

832
01:33:03,360 --> 01:33:10,480
employees over the age of 40 because of their age. So there could be a claim by an employee says,

833
01:33:10,480 --> 01:33:16,080
you discriminated against me by either terminating me, giving me a bad assignment, not hiring me

834
01:33:16,080 --> 01:33:25,360
because of my age. And this often involves a lot of statistics like the overview of the

835
01:33:25,360 --> 01:33:30,000
all the other employees who they hire, who they rehire and stood this individual.

836
01:33:31,280 --> 01:33:36,480
And whistleblower loss is another very common employment dispute. And whistleblower claims

837
01:33:36,480 --> 01:33:40,960
the plaintiff employee alleges that the employer took adverse action against an employee

838
01:33:40,960 --> 01:33:47,840
after the employee engaged in a protected activity, such as blowing the whistle or threatening to go

839
01:33:47,840 --> 01:33:53,600
to the authorities about illegal activity that the employee was allegedly engaged in.

840
01:33:54,320 --> 01:34:01,040
For example, the employees may claim that they were fired after they reported that the employer

841
01:34:01,760 --> 01:34:09,280
violated a Cal Ocean regulation or some other regulation or some other law. And these are very

842
01:34:09,280 --> 01:34:18,720
common. And next one we're going to discuss is hostile work environment. Another very common

843
01:34:18,720 --> 01:34:24,000
dispute. The hostile work environment employment litigation is where the employee alleges that

844
01:34:24,000 --> 01:34:29,760
they were subjected to hostile work environment that was sitting here and pervasive and prevented them

845
01:34:30,400 --> 01:34:36,560
from properly conducting their job. And who is creating the hostile work environment? It could

846
01:34:36,560 --> 01:34:44,160
be coworkers, it could be supervisors. So a hostile work environment is also very fact-intensive

847
01:34:44,800 --> 01:34:52,640
where you have to analyze the environment and see if the alleged offending conduct was severe

848
01:34:52,640 --> 01:34:58,720
and pervasive to alter the conditions of employment. Another one is wage and hour disputes. The

849
01:34:58,720 --> 01:35:05,520
plaintiff here may claim that he was deprived of commissions or bonuses, vacation pay or stock

850
01:35:05,520 --> 01:35:11,840
options. These may be disputes about the retutemacy of claims for entitlement of those,

851
01:35:11,840 --> 01:35:19,280
as well as whether some of those denials qualify for multiple damages. In these claims,

852
01:35:19,280 --> 01:35:23,440
both the employee and employer generally have strong emotions about their positions.

853
01:35:24,080 --> 01:35:29,280
So making mediation is a good alternative to resolve disputes. You would not think that they

854
01:35:29,280 --> 01:35:39,120
are emotional components as well in this. Next is the wage and hour class act. These cases have

855
01:35:39,120 --> 01:35:44,560
multiplied in their recent years. Gracing claims that groups of employees have not been paid,

856
01:35:44,560 --> 01:35:51,760
their amount of minimum wages, improper deductions have been taken, where overtime or premium

857
01:35:51,760 --> 01:35:59,280
time have been underpaid. Litigation of these claims can be complex and these issues involve

858
01:35:59,280 --> 01:36:05,920
a poor systematic practices. Litigating a class action to the end is inexpensive and often

859
01:36:05,920 --> 01:36:12,720
considerable risk for both sides. Both sides take big risk when litigating a class action.

860
01:36:13,440 --> 01:36:18,720
So the employer risks a large judgment because we're dealing with class ashes and the employees

861
01:36:18,720 --> 01:36:25,760
risk that they cannot prove the class action. So these are very good cases that are fine for

862
01:36:25,760 --> 01:36:33,360
resolution by inviadiator. Let's talk now about the most common employment disputes involving

863
01:36:33,360 --> 01:36:40,240
independent contract or misclassification. Whether an employer is considered an employee

864
01:36:40,240 --> 01:36:46,160
or an independent contractor is not always clear, it is a rubinal litigation on. In these claims,

865
01:36:46,160 --> 01:36:53,200
the plaintiffs, employees, allege that although the employer classified them as independent contractor,

866
01:36:53,200 --> 01:36:59,280
that they're really an employee and therefore entitles all the employee benefits and protections.

867
01:37:00,160 --> 01:37:05,600
Like wage and hour disputes, these claims can arise on an individual basis or a class action.

868
01:37:06,480 --> 01:37:09,840
And as with other types of class actions, mediation is preferred

869
01:37:09,840 --> 01:37:17,520
for a longer, more expensive trial. The next common dispute is claims of retaliation.

870
01:37:18,080 --> 01:37:24,640
Claims that discrimination are often accompanied by a retaliation claim. This claim is made when

871
01:37:24,640 --> 01:37:31,440
the employees complain or engage in other similarly protected conduct and they believe

872
01:37:31,440 --> 01:37:36,480
they suffered retaliation from the employer because of the complaint they made. They are

873
01:37:36,480 --> 01:37:43,360
claiming that they were subjected to an adverse employment action because of the claim or complaint

874
01:37:43,360 --> 01:37:49,520
that they made. And in these cases, it's often the issue, the issue is, did they make a complaint?

875
01:37:50,320 --> 01:37:56,960
When did they complain? Was it really a complaint? And then the adverse employment action, the

876
01:37:56,960 --> 01:38:06,080
retaliation, was it because of the complaint or was it circumstantial to the timing? So timing of

877
01:38:06,080 --> 01:38:11,920
this is very important. I often make a charter of these cases. When was the complaint made and

878
01:38:11,920 --> 01:38:16,240
when was the alleged action? Because of course, the adverse employment action has to occur after

879
01:38:16,880 --> 01:38:23,040
the complaint was made so it could be proven that it was as a result of or because of substantial

880
01:38:23,040 --> 01:38:27,520
reason about because of the protective activity that the employer was engaged in.

881
01:38:29,280 --> 01:38:35,440
Next is severance agreement. Employers often offer employees who leave their

882
01:38:35,440 --> 01:38:41,200
company certain types of compensation in return for their signing a contract that includes a

883
01:38:41,200 --> 01:38:47,040
non-disclosure or non-compete agreements. These types of severance agreements are often the

884
01:38:47,040 --> 01:38:52,320
subject of litigation. Employees may argue that they are entitled to a severance by the terms

885
01:38:52,320 --> 01:38:58,480
of their employment contract or because the employer made a promise to them about a particular

886
01:38:58,480 --> 01:39:06,640
severance benefit and the employer may counter that the employee's breach of the contract negates

887
01:39:06,640 --> 01:39:13,520
that claim. So that's very interesting issues. Often the severance dispute becomes part of

888
01:39:13,520 --> 01:39:20,800
the claim for a wrongful termination. All of these claims are really often alleged together in the

889
01:39:20,800 --> 01:39:30,080
same thing. The last section of this presentation is strategies and tips for effective mediations.

890
01:39:30,720 --> 01:39:38,240
I hope that you will gain some insight into some of the strategies that I have learned as a

891
01:39:38,240 --> 01:39:44,080
settlement judicial officer when I was with Los Angeles Superior Court and now as a private

892
01:39:44,080 --> 01:39:50,880
mediator. I will go over briefly some of them, not all of them, but I hope you'll find this helpful.

893
01:39:51,520 --> 01:40:00,720
My first tip in strategy is an remediation is to prepare, prepare, prepare. You can never be to

894
01:40:00,720 --> 01:40:07,600
prepare for a mediation and you may think, well, what is there really to prepare? You just read

895
01:40:07,600 --> 01:40:17,440
the briefs and you start the mediation. Not so fast. I find that preparation is conducive to a more

896
01:40:17,440 --> 01:40:25,600
effective and a more efficient and productive mediation. So the first thing to do to prepare is,

897
01:40:25,600 --> 01:40:34,000
of course, the obvious of reviewing the briefs and any relevant documents very thoroughly.

898
01:40:34,000 --> 01:40:40,640
Well, I try to review the briefs and from the brief, after I review the briefs,

899
01:40:41,360 --> 01:40:49,440
I try to understand the party's positions, how I can best help them resolve their dispute,

900
01:40:49,440 --> 01:40:55,920
even what I've read in the briefs. And a lot of times you will get a briefs that are very,

901
01:40:55,920 --> 01:41:03,840
very long and some that are very, very short, some that attach thousands of pages as exhibits

902
01:41:03,840 --> 01:41:11,200
and really only one paragraph is important, but it is important to review the briefs thoroughly.

903
01:41:12,160 --> 01:41:19,680
Now, the next thing is as you're reading the briefs is how can you best prepare as you're

904
01:41:19,680 --> 01:41:29,520
reading the briefs, try to anticipate and prepare for the emotional responses and the dynamics of

905
01:41:29,520 --> 01:41:37,280
the parties. You can read between the lines of the attorneys do a good job in the briefs of helping

906
01:41:37,280 --> 01:41:43,680
you because the attorney's job in doing the brief is to help you, the mediator, help me help them

907
01:41:43,680 --> 01:41:51,040
resolve the case. So as you're reading the brief, don't just read it for the facts. Read it for,

908
01:41:51,040 --> 01:41:59,840
try to prepare, come up, develop responses, approaches, solutions to whatever you are

909
01:41:59,840 --> 01:42:06,000
dealing with and anticipate the emotional response of the parties to whatever you're

910
01:42:06,000 --> 01:42:11,680
going to propose or that they're going to propose to resolve. And like the last thing here is really

911
01:42:11,680 --> 01:42:17,680
in preparing and reading the briefs is you, it's so important to prior to the mediation,

912
01:42:17,680 --> 01:42:23,520
think of creative approaches to resolve the case. If the brief of course gives you sufficient

913
01:42:23,520 --> 01:42:32,160
information for you to make that creative approach assessment, because in the resolution of some very

914
01:42:32,160 --> 01:42:38,640
emotional matters, you have to be very creative and hopefully the brief will give you information

915
01:42:38,640 --> 01:42:44,400
for you to do that. Now, how do you, after you read the brief, what's the next step to prepare?

916
01:42:44,400 --> 01:42:53,920
The next step I would recommend is have a pre-mediation conference. As a settlement judge

917
01:42:53,920 --> 01:42:59,680
in Los Angeles Superior Court, I didn't have these often because of the time limitation. We were

918
01:43:00,880 --> 01:43:08,400
overwhelmed with a lot of cases, so we just the time was an issue. I did have them in

919
01:43:08,400 --> 01:43:15,200
complicated, complex cases, but now that I'm in private mediation, I really think this is a

920
01:43:15,200 --> 01:43:22,400
key to preparing. Pre-mediation conference, and as you already read from my previous statements,

921
01:43:23,120 --> 01:43:29,120
the confidentiality applies at this conference because it's pre-conference, pre-to-the-mediation.

922
01:43:29,120 --> 01:43:35,840
So what do you do in this mediation as a mediator? Pre-mediate, pre-mediation conference.

923
01:43:35,840 --> 01:43:43,040
You discuss issues to increase the efficiency, the effectiveness of the mediation.

924
01:43:44,800 --> 01:43:49,920
You'll be surprised the things the attorney will share. This is just with one side, so you

925
01:43:50,560 --> 01:43:56,240
contact the plaintiff's attorney and then separately, differently date, time, the defense

926
01:43:56,240 --> 01:44:01,040
attorney, and you speak to them and you say, is there anything I need to know that you think will

927
01:44:01,040 --> 01:44:07,120
help me help you resolve the case? They want to tell you things that they can't say sometimes in

928
01:44:07,120 --> 01:44:14,720
front of their client or that they want you to be on the lookout. So address, for example,

929
01:44:14,720 --> 01:44:21,040
issues of potential client control. Do they have, do the attorney have any issues with client control?

930
01:44:21,040 --> 01:44:25,600
Is there some way you can help? Somehow you can help. Sometimes you can establish a

931
01:44:25,600 --> 01:44:31,920
procedure, a protocol for you and the attorney to communicate so you can speak to the client.

932
01:44:32,720 --> 01:44:38,960
Attorney say, you know your honor, my client has an issue with ABC. Can you really focus on ABC?

933
01:44:38,960 --> 01:44:44,160
Great. At least you know that that is a trigger point for the client. Identify those areas of

934
01:44:44,160 --> 01:44:48,560
focus that the attorney thinks are important. You could focus. Identify trigger points to avoid.

935
01:44:49,200 --> 01:44:55,200
The attorney says, don't go here because that will trigger my client and go out of control if we

936
01:44:55,200 --> 01:45:01,280
go there. So you need to know that before the mediation. And of course, most importantly,

937
01:45:02,320 --> 01:45:08,960
you try to understand the party's motivations. The motivation is really key. Of course,

938
01:45:08,960 --> 01:45:15,920
the lawsuit is similar to the money. Who's going to pay who generally? But what is really motivating?

939
01:45:15,920 --> 01:45:20,560
Because that's how you're going to deal with resolving the issue. If you get down to the

940
01:45:20,560 --> 01:45:27,200
motivation of what is it that is motivating this side? Why do they want this particular angle?

941
01:45:27,200 --> 01:45:32,560
And you'll understand that and better craft a customized agreement knowing the motivation.

942
01:45:33,200 --> 01:45:39,040
Another thing you need to understand is who's going to attend the mediation? A lot of times

943
01:45:39,040 --> 01:45:44,160
you say, well, for sure the client. A lot of times they should come to the mediation with a

944
01:45:44,160 --> 01:45:54,080
support person. That is important to know. Sometimes who is making the decision is not really the party.

945
01:45:54,800 --> 01:46:01,760
It could be a close person to the party who's really a decision maker. This seems to be an

946
01:46:01,760 --> 01:46:06,480
easy question, but when a party in a lawsuit is an individual person, that person is generally

947
01:46:06,480 --> 01:46:12,000
decision maker, but not really. I've had cases where it was a family dispute. It was wonderful

948
01:46:12,000 --> 01:46:20,720
to learn how this family made a decision. They brought the son, the uncle. In this case,

949
01:46:20,720 --> 01:46:25,600
it was the mother and the father, but you really got to see who's really making the decision. They

950
01:46:25,600 --> 01:46:31,440
made that decision in that family context. It's important for you to know those cultural issues

951
01:46:31,440 --> 01:46:38,400
of how a decision is made in that context. When a party is a business or an entity, the answer

952
01:46:38,400 --> 01:46:43,920
is less clear. When it becomes a business or entity involved in a mediation, the person who needs to

953
01:46:43,920 --> 01:46:49,440
participate is someone who has the power to accept and offer a resolution made by the party.

954
01:46:51,600 --> 01:46:56,240
Participating in a mediation means that being personally involved in all of the events that

955
01:46:56,240 --> 01:47:01,120
occurred during the mediation session, getting the opportunity to gain a realistic understanding

956
01:47:01,120 --> 01:47:07,680
of the dispute and having the chance to voice opinions and concerns. The best form of participation

957
01:47:07,680 --> 01:47:12,160
is physical presence, but participating in a mediation could be by video conference or telephone.

958
01:47:12,720 --> 01:47:18,560
That may be more appropriate than physical presence. A key is, of course, who is making the

959
01:47:18,560 --> 01:47:27,440
decision. The other area that you will focus in a pre-mediation conference is, for example,

960
01:47:27,440 --> 01:47:33,440
having the important documents. You're going to ask the parties, does everybody have all the key

961
01:47:33,440 --> 01:47:39,440
documents you need? Depending on the stage of it, it's a lawsuit. It may be very early on the case,

962
01:47:39,440 --> 01:47:45,680
and a lot of cases are very right to be resolved at an early stage. Others are not,

963
01:47:46,880 --> 01:47:55,440
because they don't have all the information really to assess or properly evaluate the value of their

964
01:47:55,440 --> 01:48:00,560
case, because they don't have all the key documents or some of the key documents. In some cases,

965
01:48:00,560 --> 01:48:06,000
you don't need any documents. You can resolve it without key documents. At that pre-mediation

966
01:48:06,000 --> 01:48:11,440
conference, okay, councilman, do you have everything you need to just properly enough

967
01:48:12,160 --> 01:48:17,600
to settle the case? Because I've had mediation, this one on the other side says, well, they don't

968
01:48:17,600 --> 01:48:24,080
have this document, and that's why they're in crazy land in their offer or their demand, because

969
01:48:24,080 --> 01:48:28,320
they don't know. You're talking apples and oranges, and they're very difficult to settle if both

970
01:48:28,320 --> 01:48:33,040
parties don't have the same information. There's strategic reasons why, of course, you would

971
01:48:33,040 --> 01:48:40,240
part as exchange and be for the mediation or not. So it does involve working to the dispute,

972
01:48:40,240 --> 01:48:46,000
and documents can sometimes be invaluable in achieving that goal. Let me give you an example

973
01:48:46,000 --> 01:48:50,400
of a dispute between a homeowner association, a condominium owner. It is important to refer,

974
01:48:50,400 --> 01:48:56,880
for example, to have the cognizance, conditions, the restrictions of the homeowner association

975
01:48:56,880 --> 01:49:03,600
present at the mediation, so you can personally read them. And in a dispute between an insurance

976
01:49:03,600 --> 01:49:09,680
company and a policy holder, it's important to have the policies present, and so that you can

977
01:49:09,680 --> 01:49:14,240
assess them. Now, what are the things will you discuss at the Supreme Mediation Conference?

978
01:49:14,240 --> 01:49:21,040
Another thing is the litigant specific needs. What does that mean? What does the litigant need

979
01:49:21,040 --> 01:49:31,840
to meanfully participate in this mediation? Do they need a support person? I've often allowed

980
01:49:32,800 --> 01:49:39,200
a support person. That could be a daughter, a son, a parent, a good friend, and of course,

981
01:49:39,200 --> 01:49:43,520
you have to deal with the confidentiality issues if they have to sign the confidentiality

982
01:49:43,520 --> 01:49:48,480
agreements. And I'm not going to go into those in detail, but make sure you read those.

983
01:49:48,480 --> 01:49:54,080
Another issue is, is there an interpreter need? You don't want to learn at the mediation

984
01:49:54,960 --> 01:49:59,120
that, oops, we need an interpreter for a witness and there's no interpreter here.

985
01:49:59,120 --> 01:50:05,040
Sometimes the parties think the media is going to provide it, or in court, the court provides

986
01:50:05,040 --> 01:50:10,320
interpreters if the parties notify the court with sufficient time. So you have, does an interpreter

987
01:50:10,320 --> 01:50:14,400
need who needs, so does we have two interpreters, one for the plaintiffs, one for the defendant.

988
01:50:14,400 --> 01:50:19,520
So I speak Spanish, I could conduct it on Spanish, but you have to make sure that the parties

989
01:50:19,520 --> 01:50:26,160
and the attorneys understand the language. So you don't want to have a wrinkle that will kind of

990
01:50:26,160 --> 01:50:31,680
derail your mediation. So at the pre-mediation conference, I often say it's an opportunity to

991
01:50:31,680 --> 01:50:36,160
iron out all wrinkles so that when you start the mediation, you're off and running, it's smooth,

992
01:50:36,800 --> 01:50:43,920
no issues involving any procedural or housekeeping issues. Another issue you may want to address

993
01:50:43,920 --> 01:50:48,880
at this pre-mediation conference is any accommodations for the parties or the attorneys.

994
01:50:49,520 --> 01:50:54,800
Any dietary restrictions. If you're doing private mediation in person, the media is often provide

995
01:50:54,800 --> 01:51:01,200
lunch, delicious lunches. You will have some dietary restrictions, some allergies, some preferences,

996
01:51:01,840 --> 01:51:06,480
food issues that you may have. Hearing aids, does anybody need hearing aids?

997
01:51:06,480 --> 01:51:11,760
Anybody's take a break to take some medicine. Anybody cannot sit staffer to long periods of

998
01:51:11,760 --> 01:51:16,960
time. So you need to determine the accommodations because once you start the mediation, you want

999
01:51:16,960 --> 01:51:22,400
to make sure everybody has what they need to be comfortable. In pre-mediations, they're eight hours.

1000
01:51:22,400 --> 01:51:26,000
So for eight hours, you need to make sure everybody's comfortable. I often tell them,

1001
01:51:26,000 --> 01:51:32,640
bring your snacks, water, coffee, whatever you need. If it's on Zoom, they often have their

1002
01:51:32,640 --> 01:51:39,440
dog with them and that's, I think, very comforting and productive, frankly. So it's a matter of choice.

1003
01:51:39,440 --> 01:51:43,840
And of course, you have to talk to the mediator. So the pre-mediation conference, very important

1004
01:51:44,400 --> 01:51:51,600
prior to the mediation to have a successful mediation. Now let's talk about strategies to use

1005
01:51:51,600 --> 01:51:57,200
during the mediation. These are just a couple of tips. There's so many. I could spend hours on this

1006
01:51:57,200 --> 01:52:04,560
button. First one is that I think is most important is active listening, a must. What does that mean?

1007
01:52:04,560 --> 01:52:15,040
That the parties want to be heard and the attorneys want to be heard. So it's so important to listen

1008
01:52:15,040 --> 01:52:22,480
actively to really understand the part of positions and motivations, approaches. They

1009
01:52:23,760 --> 01:52:30,080
provide you with tips and suggestions on how to best craft a customized agreement for this

1010
01:52:30,080 --> 01:52:39,440
particular dispute. So active listening is a must. Often what I do is, here's a tip, if you'll have a

1011
01:52:39,440 --> 01:52:47,600
party who wants to tell you their story and they could sometimes go on and on and on and go off

1012
01:52:47,600 --> 01:52:54,640
into a tangent and you can gently bring them back and I often repeat or rephrase what they told me

1013
01:52:54,640 --> 01:53:00,000
so that they know that I am listening and that I am understanding what they're saying. For example,

1014
01:53:00,000 --> 01:53:07,200
if somebody is telling me, let's take my favorite neighbor disputes about the trees hanging over

1015
01:53:07,760 --> 01:53:13,200
and the neighbor is very emotional. Your honor, this tree has been a nuisance. It has fruit.

1016
01:53:13,200 --> 01:53:19,600
It goes on my side. It's rotten and my dog has to eat it. My kids get poisoned with this fruit

1017
01:53:19,600 --> 01:53:25,600
that's been rotten and they go on and on and on. I said, okay, Mr. Son, so I understand. You're

1018
01:53:25,600 --> 01:53:33,040
telling me that you are very much, I understand your concern and that Buddhist particular tree

1019
01:53:33,040 --> 01:53:38,720
being a nuisance to you. So you kind of rephrase it so that they understand and that you are listening

1020
01:53:38,720 --> 01:53:44,000
to their dispute. So active listening is a must. Next tip I would say during the mediation is

1021
01:53:44,000 --> 01:53:51,120
patient. Mediation involves change and its parties in a dispute typically believe that they both are

1022
01:53:51,120 --> 01:53:57,760
right. Okay, both parties think I am right. They're wrong. I'm here for the media to tell the other

1023
01:53:57,760 --> 01:54:04,160
party that they're, you know, that they are wrong about the dispute. So each side may or may not

1024
01:54:04,160 --> 01:54:11,120
understand their own interest as those of the other party and each may have unrealistic expectations

1025
01:54:11,120 --> 01:54:17,280
sometimes. Each party may be unwilling to treat the other with any degree of respect depending

1026
01:54:17,280 --> 01:54:23,920
on the dispute. So it takes time to address these issues and it takes time for people to change

1027
01:54:23,920 --> 01:54:35,760
their mind. It is important that the parties allow for this time to organically occur. Of these rules,

1028
01:54:35,760 --> 01:54:41,600
a stressful mediation, it is really the most important that not to have changed the party's

1029
01:54:41,600 --> 01:54:50,240
mind to at least have them understand the other side's perspective. So patience and this is not

1030
01:54:50,240 --> 01:54:58,320
going to happen right away. That's why patience tool is a process. It's a slow simmering process that

1031
01:54:58,320 --> 01:55:06,640
takes time for the other parties to really understand and for the mediator to bring

1032
01:55:06,640 --> 01:55:13,520
sometimes unrealistic expectations to a more realistic level of what it will take to resolve

1033
01:55:13,520 --> 01:55:24,160
the case. Next is flexibility. So flexibly, it is crucial to be flexible because it's a dynamic

1034
01:55:24,160 --> 01:55:29,680
process. Mediation is very dynamic. The parties want to be flexible of maybe they came in and

1035
01:55:29,680 --> 01:55:36,800
finished. I'm going to settle under these terms. Well, they may get two out of those three or maybe

1036
01:55:36,800 --> 01:55:41,200
number three may look a little different than they thought. So they need to be flexible but

1037
01:55:41,200 --> 01:55:48,080
explore why they are bent on these particular terms being the way they see it so that you can

1038
01:55:48,080 --> 01:55:54,960
make you do it as a mediator be flexible and so will they. So that they can, you know, I have to say

1039
01:55:54,960 --> 01:56:00,880
this is a compromise. This is both parties have to give in a little bit and hopefully flex it.

1040
01:56:02,160 --> 01:56:09,440
Another strategy during the mediation is perseverance. Persistence. You must be persistence

1041
01:56:09,440 --> 01:56:15,760
because often, very often the parties is well, if that their position on just gonna leave this

1042
01:56:15,760 --> 01:56:25,840
mediation, what are you going to do as a mediator? Have a walkout? Bye bye. No. That's what they're

1043
01:56:25,840 --> 01:56:30,240
paying you for to be persistent to make sure that maybe that could be how they really feel. Maybe

1044
01:56:30,240 --> 01:56:36,400
it's a it's a pontificating on one side. Maybe they're just, you know, their way of negotiating.

1045
01:56:37,440 --> 01:56:42,800
So we be persistent and persevere and trying to get the parties to come to the agreement.

1046
01:56:42,800 --> 01:56:48,320
A very important one and other mediation strategy is to gain the parties trust and confidence.

1047
01:56:49,040 --> 01:56:53,840
You are there to facilitate an agreement. You're not there to advocate one side to the other.

1048
01:56:53,840 --> 01:56:59,280
You're there to have each side understand the other side's position. So gain their trust and

1049
01:56:59,280 --> 01:57:05,440
confidence and once they trust and have the trust and confidence, they will trust that you will do

1050
01:57:05,440 --> 01:57:11,520
the best to resolve the manner that dispute in the manner that is acceptable to both parties.

1051
01:57:11,520 --> 01:57:16,880
And last strategy is I think I already briefly talked about it is to offer alternative creative

1052
01:57:16,880 --> 01:57:21,840
solutions. Remember I mentioned that during the time you meet reviewing the briefs, you think

1053
01:57:21,840 --> 01:57:28,240
about this. So think about what you reviewed while thought about as alternative creative solutions

1054
01:57:28,240 --> 01:57:33,600
when you're reviewing the brief. Those may change once you hear the parties or they may expand.

1055
01:57:33,600 --> 01:57:40,000
In achieving the solution, the goal is to reconcile interests and you must identify

1056
01:57:40,000 --> 01:57:46,480
different options and those options must allow both parties to achieve enough of their interests

1057
01:57:47,040 --> 01:57:53,840
that their options would be better than no deal at all. So you have to reconcile the interest

1058
01:57:53,840 --> 01:58:00,560
and this requires problem solving and problem solving requires creativity for the parties

1059
01:58:00,560 --> 01:58:06,560
to have an open mind, an open heart about how to resolve the issue. So good techniques for

1060
01:58:06,560 --> 01:58:12,240
generating this type of thought is brainstorming, brainstorming with the attorney, with the party,

1061
01:58:12,240 --> 01:58:20,960
ask him. So to get to point from A to B, there's three different rows. Which one do you think

1062
01:58:20,960 --> 01:58:25,920
will be most palatable to you, A, B or C? And what do you think we should be done? Ask them

1063
01:58:25,920 --> 01:58:30,880
because they're the ones dealing with the dispute. They know the idiosyncrasies of the dynamics of

1064
01:58:30,880 --> 01:58:41,680
the parties, the history of the dispute. So offer, but solicit also their input. And this is a process

1065
01:58:41,680 --> 01:58:50,960
in which parties identify ideas that they can reconcile and their ideas have ownership in

1066
01:58:50,960 --> 01:58:57,440
the idea. And no idea that the couple should really be rejected or criticized. You can build on

1067
01:58:57,440 --> 01:59:03,680
one another. Sometimes the better ideas come out late in the process at the very end where parties

1068
01:59:03,680 --> 01:59:08,800
are tired and they say, no, that's it. We're going to walk out and they say, no, let's, after people

1069
01:59:08,800 --> 01:59:14,400
believe that they were not able to deal, there's new ones that come up. So once a number of ideas are

1070
01:59:14,400 --> 01:59:21,520
identified, then the parties can evaluate them and select the results in maximum benefits for

1071
01:59:21,520 --> 01:59:29,120
each part. And again, this is a dynamic, comprehensive input, respect, and understanding of each

1072
01:59:29,120 --> 01:59:39,040
party's perspective. Now let's talk about the next topic is types of disputes of difficult parties.

1073
01:59:40,480 --> 01:59:45,760
What? There's difficult parties and mediations? Yes, I, for 18 years on the court, I dealt with

1074
01:59:45,760 --> 01:59:53,040
very professional civil parties, but they're also very difficult parties. So these are the types of

1075
01:59:53,040 --> 01:59:58,960
difficult parties you may encounter in a mediation. One is the angry one. The angry party may be

1076
01:59:58,960 --> 02:00:05,680
angry about the incident that gave rise to the claim without any damages. When angry may be about

1077
02:00:05,680 --> 02:00:11,360
the process, they may be angry about, so they're attorney, you never know what they're angry,

1078
02:00:11,360 --> 02:00:16,080
but there could be a combination of reasons. And these parties start, often get, start to get

1079
02:00:16,080 --> 02:00:22,000
frustrated, and then they get angry. And many parties believe that their own anger is a sign that

1080
02:00:22,000 --> 02:00:26,480
things are not going well and they should stop the mediation. This is not really correct because

1081
02:00:27,200 --> 02:00:32,640
a deal can be achieved if the parties can consent to a resolution that satisfies their

1082
02:00:32,640 --> 02:00:38,320
interests better than having no deal, as I said before. So it's important that you work through

1083
02:00:38,320 --> 02:00:44,160
that anger and try to understand them. The reason for the anger, so that you can get to the source

1084
02:00:44,960 --> 02:00:50,560
and then craft the agreement from the anger. Why is your client really angry and you pull the

1085
02:00:50,560 --> 02:00:56,160
attorney to a private room? Why is it good? So you could really understand what is really triggering

1086
02:00:56,160 --> 02:01:01,280
the anger. Maybe that's the way the client is. Maybe that's the way the client negotiates.

1087
02:01:01,280 --> 02:01:07,760
We have to understand what it is and read that correctly. The other type of difficult party is

1088
02:01:07,760 --> 02:01:14,320
the emotional one. The emotional one may be too emotional or too sad, too upset about the incident

1089
02:01:14,320 --> 02:01:19,200
to be rational, to value the case. You have to be careful with that because it's important for them

1090
02:01:19,200 --> 02:01:26,320
to be emotional, but you have to understand the source of that. So it may be wise to speak to

1091
02:01:26,320 --> 02:01:32,960
the attorney and understand the basis of the source of that. The other difficult party is the know-it-all.

1092
02:01:32,960 --> 02:01:38,400
This is the party that things they know more than the mediator, the attorneys, the judges,

1093
02:01:38,400 --> 02:01:44,800
and all the jurors come by. They know everything and they're right and everybody else is wrong.

1094
02:01:47,120 --> 02:01:50,560
How do you deal with that? We all have people like that in our everyday lives.

1095
02:01:51,200 --> 02:01:56,800
So it's important for you to figure out how to navigate that particular party because your

1096
02:01:56,800 --> 02:02:06,480
goal is to facilitate an agreement. So hopefully that Mr. or Mrs. Know-it-all will have some confidence

1097
02:02:06,480 --> 02:02:13,600
and trust in you as a mediator so that you can facilitate moving the needle into a negotiation

1098
02:02:13,600 --> 02:02:21,440
that is productive. The other one is the uncontrollable party. Now, this uncontrollable party is

1099
02:02:21,440 --> 02:02:28,080
even where even the attorney cannot get control of the party's expectations or they have such

1100
02:02:28,080 --> 02:02:35,840
that expectations that are so out of the realm of reality that you have to understand why they

1101
02:02:35,840 --> 02:02:42,320
think that or why are they uncontrollable. They could be uncontrollable on their wishes to settle

1102
02:02:42,320 --> 02:02:48,080
or on an emotional basis. On an emotional basis, you really have to carefully talk to the counselers

1103
02:02:48,080 --> 02:02:55,280
too. Is there anything you could do to have them to be under a control? So let's talk about tips now

1104
02:02:55,280 --> 02:03:00,800
for dealing with these difficult parties. Here are some tips depending on the circumstance,

1105
02:03:00,800 --> 02:03:07,040
depending on what the difficulty is. You're going to have to craft your own and think on your fee,

1106
02:03:07,040 --> 02:03:14,400
but for the difficult party, you're going to just have to agree that there's going to be extra time.

1107
02:03:14,400 --> 02:03:18,960
You have to spend extra time with that party so you could really understand their motivation,

1108
02:03:18,960 --> 02:03:27,680
the source, and see why they are being difficult. The other one, so these are going to spend extra

1109
02:03:27,680 --> 02:03:35,280
time with the difficult party, is that you can expect delays. So if you think you're going to

1110
02:03:35,280 --> 02:03:39,360
finish that mediation in two hours, you've got to add another 30 minutes or an hour because of the

1111
02:03:39,360 --> 02:03:46,320
nature of the difficult party. And the next tip is in the premediation conference, get

1112
02:03:46,320 --> 02:03:52,640
background from the attorney on how to approach that difficult client. That attorney knows that

1113
02:03:52,640 --> 02:03:58,960
client. You don't as a mediator. You're just meeting them for the first time. So the attorney can

1114
02:03:58,960 --> 02:04:04,640
give you tips outside the presence of the client on how to deal with that mediator and how it has

1115
02:04:04,640 --> 02:04:10,640
worked for him or her in dealing with the client. Another tip is to not have joint sessions where

1116
02:04:10,640 --> 02:04:15,200
the emotions are so high or you have difficult parties because that will be counter-conductive

1117
02:04:15,200 --> 02:04:19,920
and the whole thing could go south. By joint session is they cannot be in the same room.

1118
02:04:21,280 --> 02:04:25,680
They cannot, even if you're on Zoom, put them in separate rooms. And in fact,

1119
02:04:25,680 --> 02:04:30,560
I mean, and mediation in person, I often ask them, is there any issue with parties because after

1120
02:04:30,560 --> 02:04:36,240
they meet in the common areas like getting lunch or in the hallway or whatever, I say,

1121
02:04:36,240 --> 02:04:41,200
you got to structure that so that there's no meaty because it could be volatile sometimes,

1122
02:04:41,200 --> 02:04:44,720
depending on the dispute. Some disputes are not emotional, some are very.

1123
02:04:46,720 --> 02:04:55,520
The other tip I will have is hear this difficult party out enough, but control the decorum and

1124
02:04:55,520 --> 02:05:01,520
the session. So it's important that you hear them out, but you're in control of the decorum,

1125
02:05:02,240 --> 02:05:09,200
of the integrity of the process. So it's important that you hear them out, but with respect and with

1126
02:05:09,200 --> 02:05:15,760
you're in control of the decorum. So in the right context, while showing respect, you have to assert

1127
02:05:15,760 --> 02:05:22,480
your position so that you can control the situation. Otherwise, it'll spiral out of control. It has to

1128
02:05:22,480 --> 02:05:28,640
be, of course, in the right context and while showing respect, but it is very important to

1129
02:05:28,640 --> 02:05:37,360
assert your position so that you can control the situation and move the negotiation into a productive

1130
02:05:37,360 --> 02:05:41,920
session. Of course, it all depends on the specific type of issue you're dealing with.

1131
02:05:43,120 --> 02:05:50,320
And again, it's, as I said before, it's important for the other sides to understand

1132
02:05:50,320 --> 02:05:55,840
each part of the position, not to agree with them, because a lot of times they're just going to

1133
02:05:55,840 --> 02:06:01,440
agree to disagree and that's really perfectly fine. Agree to disagree with the other sides,

1134
02:06:01,440 --> 02:06:06,000
but understand it so they know where they're coming from, why they're not offering the $20

1135
02:06:06,000 --> 02:06:12,480
million that you want, why they think it's near worth this other amount. So these are my

1136
02:06:12,480 --> 02:06:18,960
top tips for dealing with difficult parties. As I said, it's very fact specific, case specific,

1137
02:06:18,960 --> 02:06:22,560
but I hope generally they do, you will find some of them helpful.

1138
02:06:23,920 --> 02:06:30,960
Think we're reaching the end, so I want to thank you for your indulgence and in conclusion,

1139
02:06:30,960 --> 02:06:36,800
as you hope you've gathered that ADR is and is very invaluable for our justice system.

1140
02:06:37,440 --> 02:06:43,040
It's a win-win for everybody. It saves time and money for the court and the litigant,

1141
02:06:43,680 --> 02:06:47,920
and the courts have more resources. The litigants resolve their cases without the lay,

1142
02:06:47,920 --> 02:06:53,200
stress and expense of litigating and lost to court late. I think that the parts what's so

1143
02:06:53,200 --> 02:07:00,320
amazing about an ADR is that the parties resolve their disputes through ADR and generally are more

1144
02:07:00,320 --> 02:07:07,120
satisfied because they directly participate in working out the terms of their very customized

1145
02:07:07,120 --> 02:07:13,360
settlement agreement with the assistance of an experienced meeting leader. Thank you and this

1146
02:07:13,360 --> 02:07:20,800
concludes this presentation. You may be eligible for CLE credit in your state. Visit bhba.org

1147
02:07:20,800 --> 02:07:44,800
slash podcasts for more information.